Suit in ejectment-defendant’s plea of possession as lessee rejected-

Whether plaintiff has to prove possession within 12 years of Suit

(M. Velayudhan Nair, Advocate, Alathur-Palghat)

It has been held in the case of Marimuthu Goundan v. Thampi (1960 KLJ.1304 and in the case of Jaldhari v. Rajendra Singh (AIR. 1958 Patna 386 FB.) that,  in a suit in ejectment on the ground of trespass and dis­possession or discontinuance of possession, in which plaintiff’s title is either admitted by the defendant or is established, but the defendant denies the alle­gation of trespass and sets up a tenancy under the plaintiff or his predecessor-in-interest, under which he claims to be in possession, if the tenancy set up by the defendant is not established, the plaintiff has not to prove possession with­in 12 years of suit to entitle him to a decree for possession; in other words, that Article 142 of the Limitation Act is not applicable to such cases.

2. In a recent case decided by a Division Bench of the Kerala High Court (Kalyani v. Kalyani) reported in 1969 KLT. 362(1969 KLR. 566), the learned Judges have, however, expressed the view that the principle of the decisions re­ported in Marimuthu Goundan v. Thampi (1960 KLJ. 1304) and Jaldhari v. Rajendra Singh (AIR. 1958 Patna 386 FB.) is applicable only to cases where the date of the lease set up by the defendant as the source of his psssession is within 12 years of suit and cannot be extended or applied to cases in which the date of the alleged lease under which the defendant claims to be in possession is anterior to 12 years before suit.

3. With the utmost respect to the learned Judges, I submit, there is no justification for refusing to apply the principle of the decisions in 1960 KLJ. 1304 and AIR. 1958 Patna 386 FB. to cases where the date of the lease alleged by the defendant is beyond 12 years of suit. If the defendant fails to prove the lease alleged by him, one wonders what is the importance of the date of the alleged lease. When once the alleged lease is disbelieved by the Court, how can the Court dissociate, the date of the alleged lease from the other details regarding the alleged lease and say that the defendant’s plea implied only an admission that plaintiff was in possession till the date of the alleged lease and that if the date of the alleged lease is beyond 12 years of suit, the admission may not avail the plaintiff to prove his possession within 12 years of suit and that plaintiff must prove possession within 12 years of suit. It is conceivable that the defendant tres­passed on the property or dispossessed the plaintiff a few days or a few months before the suit in ejectment was filed. But if the defendant sets up a lease in his favour by the plaintiff or his predecessor-in-interest on a date anterior to twelve years before suit, in the view expressed by their Lordships in the recent case, the suit will have to be dismissed, even though the alleged lease is found to be untrue by the Court if the plaintiff does not prove that he has been in poss­ession within 12 years of suit. A dishonest defendant who is a recent trespasser can easily thwart and defeat an honest plaintiff by cleverly dating the alleged lease in his favour beyond 12 years of suit and throwing the onus of proving possession within 12 years of suit on the plaintiff.

There is no justification, as it seems to me, for excluding cases in which the date of the alleged lease is put beyond 12 years of suit from the application of the principle of the decisions in 1960 KLJ. 1304 and AIR. 1958 Patna 386 FB.

The circumstance relied upon by the learned Judges in the recent ease (Kalyani v. Kalyani) that in the cases decided in 1960 KLJ. 1304 and AIR. 1958 Patna 386 FB. the leases alleged by the defendant were within 12 years of suit has, in my humble view, no significance or relevance. That circumstance does not at all seem to have influenced the learned Judges who decided those cases. Indeed in the Supreme Court decision in AIR. 1965 SC. 875, it was held that the plaintiff was entitled to a decree for possession, as the lease set up by the defend­ant was found to be not true, although the date of the alleged lease was about 28 years before suit. The true principle deducible from the decided cases seems to be this: In cases where the plaintiff’s title is either admitted or proved and the defendant pleads that he derived possession from the plaintiff as a tenant, the case, as the Supreme Court points out in AIR. 1965 SC. 875, must proceed on the defendant’s plea; and if the tenancy set up by the defendant is not established, the plaintiff has not to prove possession within 12 years of suit to entitle him to a decree for possession; in such cases on proof of plaintiff’s title, he is, without anything more, entitled to a decree for possession. In other words Article 142 of the Limitation Act of 1908 is not applicable to such cases. Article 142 is applicable only to cases where the plaintiff has title and defendant is in possession and asserts title independent of the title alleged by the plaintiff. In such cases plaintiff must prove not merely his title, but must prove, in addition, that he has been in possession within 12 years of suit.

I may be permitted to illustrate my point by a reference to the decided cases. The suit in the case of 1960 KLJ. 1304 was in ejectment against an alleged trespasser. The defendant denied the trespass and contended that he was in possession under a lease granted to him by plaintiff’s mother and grandmother during his minority. The alleged lease was found to be not true. But the defendant contended that the suit being a suit in ejectment, the plaintiff was bound to prove title as well as possession within 12 years of suit. The learned Judges (M. S. Menon and Joseph JJ) observe as follows:-

“This is a case in which plaintiff’s title is admitted by the defendant. The latter, no doubt, denies the allegation of trespass and sets up an oral lease of the properties, but the possession pleaded by him is as lessee and so there is no point in the contention that the plaintiff must prove possession within 12 years. The possession of a lessee is possession of the owner for purposes of Article 142 of the Limitation Act. We may in this connection refer to the decision in Narsingh Narayan Singh v. Dharam Thakur (9.C.W. Notes 144), where it was held that where the owner of land seeks possession on the allegation that the party in possession had no right to continue on it and his title to possession is proved or admitted, he can claim a decree unless the defendant proves the existence of a tenancy which entitles him to retain possession.”

In such cases, where the plaintiff’s title is admitted or proved and the defendant sets up a tenancy under the plaintiff or his predecessors-in-interest under which he claims to be in possession, there is really no “dispossession” of the plaintiff. “On the defence itself, in the words of the learned Judges of the Full Bench in AIR. 1958 Patna 386, “plaintiff possessed the land through the defendant”. In other words an admission of plaintiff’s possession is implicit in the plea of tenancy set up by defendant.

In the Full Bench decision in AIR. 1958 Patna 386, the learned Judges, after an exhaustive review of the case-law on the subject, state the law as follows:-

“In a suit in ejectment, the initial burden lies on the plaintiff to prove that he has title to immediate possession by ejectment of the defendant. If the suit is “based on the ground of dispossession or discontinuance of possession and the defendant is in possession and asserts title independent of the title alleged by the plaintiff, then barring certain cases, where, on proof of plaintiff’s title, possession is presumed to be with him on the principle that possession follows title (for example waste lands, jungle lands, lands submer­ged in water), plaintiff must prove, in addition, that he was in possession within 12 years of suit. Where, however, it is admitted or found as a fact that plaintiff has title to the suit land and is entitled to khas possession, and the defendant asserts tenancy right, permanent  or temporary and claims to hold the land in suit under the plaintiff by grant, contract, custom, prescriptive possession or by other means, the burden is on the tenant to prove that he has the right of occupancy which he claims, and to such cases, the rule of law enun­ciated by the Full Bench in the case of Shiva Prasad Singh (1921 Patna 237) has no application”.

According to the Full Bench, in a case where the plaintiff does not admit the defendant to be his raiyat and sues as proprietor to recover the land and the defendant sets up a tenancy right, the plaintiff has not to prove anything, because the admitted paramount title of plaintiff carries with it a presumption that the plaintiff is entitled to hold and possess the land and therefore the person seeking to defeat that right and claiming to hold under him must establish the right so asserted by him. It follows that if the defendant fails to prove the tenancy alleged by him, the fundamental right of the owner to hold and possess his land will at once come into operation and will entitle him to a decree for possession of the suit property. The following observation made by their Lordships of the Privy Council in Secretary of State for India v. Rama Ras AIR. 1916 P. C. 21, which put the point in perspective are quoted by the Full Bench in 1958 Patna 386. They are very apposite in this context:

“Nothing is better settled than that the onus of establishing title to pro­perty by reason of possession for a certain period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this pro­position. If it were not correct, it would be open to the possessor for a year or a day to say I am here. Be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions*. Such a singular doctrine can be well illustrated by the case of India in which the right of the Crown to vast tracts of territory including not only the islands arising from the sea, but great spaces of jungle lands, necessarily not under the close supervision of Government Officers, would disappear, because there would be no evidence to establish the state of possession for sixty years past. It would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession”.

The principle seems to be that in cases of this nature, where plaintiff sues in ejectment and his title is admitted or proved, and the defendant claims to be in possession under a lease, the onus is always on the defendant to establish the right asserted by him and if he fails to discharge that onus, the plaintiff must be given a decree for recovery of possession by virtue of his paramount title......The Full Bench observes, borrowing the expressions of their Lordships of the Privy Council in the case in AIR. 1916 PC. 21, that

“It is no part of the obligation of the plaintiffs to fortify their own fundamental rights by a further proof of what is termed ‘subsisting title in the limited sence of title to khas possession”.

The Full Bench decision in AIR. 1958 Patna 386, which is regarded as the locus classicus on the subject has been approved by the learned Judges of the Supreme Court in the case of Murthi v. Muhamed Mir Khan (AIR. 1965 SC.875). That was a suit for declaration of title to land coupled with a prayer to be restored to possession if plaintiff is deemed to have been dispossessed. The plaintiff asserted in the plaint that he had been in possession and occupation of the suit land; but in the relief clause, prayed in the alternative that if he be  deemed to have been dispossessed of the suit land by reason of earlier proceedings, under S.144 Cr.P.C, he should be put in possession thereof and granted mesne profits. The defendant did not deny the title of the plaintiff, but claimed that the plaintiff settled the land on him and that he had occupancy rights therein. Neither the plaintiff nor the defendant alleged dispossession or discontinuance of possession. Nevertheless, it was held by the Supreme Court that as the defendant not only admitted the title of the plaintiff, but also admitted that he derived possession from the plaintiff as a tenant, the case must proceed on the defendant’s plea and for the purpose of deciding whether Article 142 or Article 144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Article 142 for neither the plaintiff nor the defendant alleged dispossession or discontinuance of possession and on the facts it was held that it is Article 144 and not Article 142 that applied. It is significant that the defendants put the date of the alleged lease to them more than 25 years before suit. This is evident from the following paragraph extracted from the Written Statement of the defendant:

“The plaintiff being the only member in his house used to reside outside in some service and consequently he gave the entire area of the Lands in Khata No.22 to these defendants to cultivate them on batai more than 25 years ago and since then the defenda­nts have been and are in peaceful cultivating possession over the same and have also acquired occupancy rights in them.”

The Munsif held that the plaintiff settled these lands with the defendants some 28 years ago. On the question of possession he held that since the settle­ment, the defendants have been in possession and cultivating the lands and that the plaintiff since after the settlement has not been in possession. He concluded that the plaintiff having been out of possession was not entitled to possession and consequently he dismissed the suit. The Appellate Court took the view that the onus was on the defendants to prove that they were raiyats of the lands and that they had acquired occupancy rights in these lands and unless they succeded in proving these, they could not successfully resist the plaintiff’s suit. The appellate Court also found that defendants had not been able to prove their case about settlement and possession. Five defendants appealed to the High Court. It was argued in the High Court by the defendants that the Appel­late Court had wrongly put the onus on the defendants, but the High Court relying on the Full Bench decision in A. I. R. 1958 Patna, did not accede to this contention Tha High Court held that the title of the plaintiff had been admitted by the defendants and their case of settlement and possession for 12 years had been rejected by the Appellate Court. Before the Supreme Court, it was argued that the Full Bench case in A. I. R. 1958 Patna 386 was wrongly decided and that on the facts of this case, Article 142 and not Article 144 governed the case. But the Supreme Court held that the Full Bench case was correctly decid­ed. The learned Judges observe as follows:-

“The defendants did not deny the title of the plaintiff to the suit land but asserted that they had been settled and acquired occupancy rights. On these facts, it seems to us that it is Article 144 and not Article 142 that applied”. The appeal was accordingly dismissed by the Supreme Court.

It will be observed that in the case before the S upreme Court, the date of the alleged lease was more than 25 years before suit, but the Supreme Court did not regard that fact as relevant or as a matter of any consequence in cons­idering whether Art 142 of the Limitation Act applied to the case and whether plaintiff has to prove possession within 12 years of suit, tit is evident that the date of the lease alleged by the defendant in such cases has no importance or relevance and if the defendant fails to prove the lease alleged by him, on proof of plaintiff’s title, the plaintiff, without anything more, is entitled to a decree for possession.

It seems to me, if I may say so with respect, that the view expressed by the learned Judges in the recent case in 1969 K.L.T. 362 requires recon­sideration.

Decision in 1969 KLT 15

(N.K. Sreedharan, Advocate, Ernakulam)

In the above decision (Pathrose v. Kuttan alias Sankaran Nair) His Lordship Justice P.T. Raman Nayar (as he then was) held that “subsequent binding authority” is a good ground for review. His Lordship has equated subsequent decision with subsequent legislation and has treated it as discovery e of a new and important matter and in any case, an error apparent on the face of the record. His Lordship has not overlooked the authorities to the contrary. The aforesaid decision has considerably enlarged the scope of Order 47. It is not my intention to state that the decision is not correct. My object is to point out the logical consequences this decision will lead us to. Of Course, a Judge should not bother about the consequences of his interpretation of any provision of law.

Suppose a Munsiff had taken in a case before him the view that the suit must be stayed under S. 8 of Act 12/66 on the representation of the defendant that he is a tenant and that record of rights has not been prepared and stayed the suit. The order is not challenged. But one Single Judge of the High Court holds in another case that upon a mere claim of tenancy without proof thereof, a suit for ejectment should not be stayed. Thereupon a review application is put in by the plaintiff and allowed and the stay is vacated and the suit taken up and proceeded with. Let us again suppose that a Division Bench in a case referred to it takes a different view from that taken by the Single Judge and holds that only a prima facie tenancy has to be established for the purpose of stay. That may give an occasion to the defendant in the Munsiff Court, whose case has been proceeded with, to apply for review. Then the Munsiff has to allow the review application and embark upon an enquiry into the question whether there is evidence of prima facie tenancy. While that enquiry is going on, if the Supreme Court has in another case taken there, decided that a bare claim of tenancy is sufficient to stay the suit in ejectment under S. 8 of the Kerala Act 12/66, the Munsiff will again have to stay the suit upon a further review appli­cation by the defendant. Afterwards suppose the Supreme Court itself in another case overrules the above decision, which is not uncommon or unknown and holds that S. 8 of the Kerala Prevention of Eviction Act 1966 will apply only in cases of admitted or proved tenancy. Then what will happen to the stayed suit, when a review application is filed by the plaintiff? That will have to be allowed and the suit again proceeded with. So this becomes an endless and interminable affair and will be a formidable threat to the principle of finality sought to be given by the rules of res-judicata and limitation.

I gave above for illustration the case of stay under S.8 of Act 12/66. But the complication will arise in the case of decrees in other actions also.

Judicial Carelessness

(N.K. Sreedharan, Advocate, Ernakulam)

To err is human. Judges, being human, are no exception. They are not infallible. Nevertheless by virtue of Article 141 of the Constitution of India, law declared by the Supreme Court, though obviously wrong, prevails and binds all courts in the country until, of course, it is subsequently discovered and de­clared to be wrong or obiter by the Supreme Court itself.

Judges may take different views on a point. Judges may decide a point according to their understanding of the question involved and their conviction. So we have instances of the Supreme Court reviewing and overruling its own decisions. Classical illustration is afforded by Golak Nath’s case (AIR. 1967 SC. 1643). Such difference or progress of views, as inevitable in the nature of things, can be appreciated.

But if by some carelessness a wrong view is made to hold the field and influence many a decision and affect several litigants, that is a grievous matter.

Even after the Fourth Amendment of the Constitution in 1955 whereby adequacy of compensation was made non justiciable, a Constitutional Bench of the Supreme Court, in AIR. 1965 SC. 1017 held that the compensation must be just equivalent. This decision was followed in AIR. 1967 SC. 637 (Union of India v. Metal Corporation of India Ltd.)

Now another Constitutional Bench of the Supreme Court in AIR. 1969 SC. 634 (State of Gujarat v. Shantital) has held that the observations in AIR. 1965 SC. 1017 are only obiter and not binding and overruled AIR. 1967 SC. 637. The Supreme Court has now in unambiguous terms stated that principle for determination of compensation or adequacy of compensation is not justiciable.

In an explanatory judgment, Chief Justice Hidayatulla says:-”It is certainly out of the question that the adequacy of compensation (apart from compensation which is illusory or proceeds upon principles irrelevant to its determination) should be questioned after the Amendment (Fourth) of the Con­stitution. The Amendment was expressly made to get over the effect of the earlier cases which had defined compensation as just equivalent. Such a question could not arise after the Amendment”. But His Lordship gives a frank expla­nation for the observation in AIR 1965 SC 1017 which misled the courts in the country all these years in the following words:-

“However it is proper for me to say a few words in explanation since I was a party to P.Vajravelu Mudaliar’s case (AIR, 1965 SC. 1017) and the obiter pronouncement of some opinions there. That case was heard with N.B. Jeejeebhoy’s case (AIR. 1965 SC. 1096). One was a post-constitution (Fourth Amendment) case and the other a pre-constitution case. The Judgments in the two cases were delivered on the same day. It appears the reasoning in the two cases was not kept separate and the whole of the matter was discussed in a case in which it was not necessary for the ultimate condition. Because of the close proximity of the decisions it escaped me that the discussion was io the wrong case and the other merely followed it”.

Now imagine the havoc this obiter discussion in a wrong place will have played in the disposal of causes. We were obliged to accept and follow the view that the Fourth Amendment of the Constitution despite its clear meaning had not made any change in the law from that laid in State of West Bengal v. Bela Bannerjee (AIR. 1954 SC. 170).

Negligence of a driver causes an accident. Miscalculation on the part of a General may result in the defeat of an army. Carelessness on the part of judges is not in any way innocuous. The higher the Court the greater will be the extent of harm done by a careless and unnecessary discussion of a question. Opinion of the Supreme Court though obiter is normally binding on other Courts. In such a situation any slight judicial carelessness will result in grievous and perhaps irreparable injury.

Section 12 of the Kerala Buildings (Lease and rent Control) Act

(N. K. Sreedharan, Advocate, Ernakulam )

Sri. V.K. Sathyavan Nair, Advocate has posed 3 questions in his Article published in Part 26, Page 52, Journal Section of the Kerala Law Times assuming that S.12 of the Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965, creates an anomalous situation. The curious thing noticed by Sri. Nair is “that an order under S.12 (3) is not mentioned in S.14 which clearly enumerates the executable orders”. The learned writer concludes by saying that “the anomaly can be remedied only by necessary amendments”.

When I read through the learned treatise of Sri.Nair I feared that he had overlooked the amendment introduced to S.14 by the Kerala Buildings (Lease and Rent Control) Amendment Act 1966 (Act 7 of 1966). S.6 of the Amend­ment Act introduced an amendment to S. 14 of Act 2 of 1965 and made orders passed under S.12 also executable. So I took the liberty of pointing out this Amendment Act to Sri. Sathyavan Nair. He has taken exception to the manner and terms in which I wrote him. Further he has brought to my notice that the Amendment Act 7/66 has been virtually abrogated by the Kerala Re-enacting Act (Act 8 of 1968) and tried to convince me that at present an order passed

under S.12 is not executable as, according to him, we have now Act 2 of 1965 as it existed before the amendment by Act 7 of 1966 and has invited my attention to page 25 of 1968 KLT. Kerala Acts Volume. Thereupon I expressed regret.

But I will be untrue to myself and failing in my duty if I allow Sri. Nair and others influenced by the treatise, if any, to labour under the belief that what governs us today in the matter of Lease & Rent Control is “Act 2 of 1965 in its unamended form and that an order passed under S. 12 (3) is not an executable order.

Both the Acts namely the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965) and the Kerala Buildings (Lease & Rent Control) Amendment Act (Act 7 of 1966) were enacted by the President. So these Acts required re-enactment under Article 357 (2) of the Constitution of India lest these Acts should cease to have effect on the expiration of a period of one year after the Proclamation had ceased to operate. Therefore the State Legislature re-enacted, among other Acts, these two Acts also by the Kerala Re-enacting Act 1968 (Act & of 1968). The 4th Act thus re-enacted is the Kerala Buildings (Lease & Rent Control) Act 1965 (Act 2 of 1965) as amended by Act 7 of 1966. Vide page 23 of KLT. 1968 Kerala Acts Volume. So at the time of re-enacting, the amendments introduced by Act 7 of 1966 were in the body of the original Act 2 of 1965 and it is that amended Act in the amended form that has been re-enacted. Thus in effect by the re-enactment the Kerala State Legislature has passed a Bui!dings(Lease and Rent Control) Act in its amended form. It will be seen that Ss. 2 to 9 of Act 7 of 1966 introduced only amendments to the various sections of Act 2 of 1965. Because the Amended Act has been re-enacted it was unnecessary to retain these provisions while re-enacting the Kerala Buildings (Lease & Rent Control) Amendment Act 1966 (Act 7 of 1966). That is why Ss. 2 to 9 are seen to have been omitted while re-enacting Act 7 of 1966. The result and effect of the said re-enactment is not to leave the Kerala Buildings (Lease & Rent Control) Act 19o5 in its original form before amendment. So in the present state of the law an order passed under S. 12 is one of the executable orders enumerated in S. 14.

The 3 questions posed by Sri. Sathyavan Nair are:-

(i) What are the legal consequences which follow an order under S. 12 (3) of the Kerala Buildings (Lease and Rent Control) Act?

(ii) Is the order final (?) and executable under S. 14 of the Act? (iii) Do the provisions of S. 11 apply to cases covered by an order under S. 12 (3) -?

The answers would appear to be:- (i) The tenant will have to vacate.

(ii) The order is clearly executable. So no amendment as suggested is necessary.

(iii) Provisions of S. 11 cannot apply as the Sections, independent as they are, provide for different contingencies.

The object of the Act is not to enable tenants to remain in occupation of another man’s premises without payment of admitted arrears and rent. There is no injustice or infringement of any primary right, in imposing such a condition as in S 12 on the tenant. He should not be allowed to eat his cake and have it too. The tenant should not be allowed to resist an application for eviction for long and at the same time escape payment of undisputed rent and arrears The avowed object of the Act is only to regulate the leasing of buildings and to control the rent, and is certainly not to relieve defaulting tenants of their obli­gation to pay even the admitted rent.

Taxation And Muslim Marumakkattayam Families

(Prof. J. Duncan M. Derrett, University of London)

I need only refer to the series of articles on this subject which deals with the cases on the problem: 1962 KLT., J., 18; 1964 KLT., J., 69-74, 1966 KLT., J., 71-3; and finally 1968 KLT., J., 15-16. The upshot of the thing was that Parliament, having long forgotten that there were Muslim joint families, had discriminated against Hindus by taxing joint Hindu families as distinct units, and by leaving Muslim joint families to be taxed as individuals. Therefore though Muslims should go free, the taxing of Hindu families- could obtain constitutional validity only because the number of Muslims was so very small as to make it absurd to cut down the provision relative to Hindus.

Then there arose the question whether Jain families were Hindu undivided families, and it had been held, correctly, in Calcutta that they were not. An Indian writer in a recent article sought to object to this on the ground that since Jains are counted as Hindus for purposes of the personal law they should be counted as Hindus within the meaning of a taxing statute. I stick to my former view that the taxing statutes were not relying upon the definitions of the personal law, and that the Calcutta decision was right. But even though it may be right, the whole question has now been looked at, in connection with the Expenditure Tax Act, 1957, by the Supreme Court in V. Venugopala Ravi Varma Rajah v. Union of India (1969) 1 S. C. W. R. 739 (J. C. Shah, V. Ramaswami and A. N. Grover, JJ.).

Briefly, valiant attempts were made to show that Art. 14 was broken by taxing Hindu undivided families differently from Muslim undivided families. The Supreme Court approved the practice of assessing the latter as “individuals”. They repudiated the suggestion that Parliament had, since 1869 (Indian Income Tax Act, No. 9 of that year), consistently discriminated against Hindus in favour of Muslims. What had occurred, they said, was that Parliament had set up a different scheme of assessment, and a classification as between Hindus and Muslims was reasonable because the Muslim marumakkattayam family was not legally identical with the Hindu marumakkattayam family. Their Lordships point out the numerous differences which have grown up, especially since 1933.

I do not believe for one moment that the differences between the two regimes was taken into account by Parliament at any time. It did not exist in 1869 nor up to the Income Tax Act of 1922. Nor are the differences which emerged between 1933 and 1939 relevant ones: so long as the unit remains a joint undivided unit enjoying property the similarities are great, though not exhaus­tive. But the real argument which weighed with their Lordships was the small number of Muslims concerned (paras. 13, 17). Their decision is practical, and must be accepted, though the arguments are none of the strongest. Parliament should set the matter straight and eliminate the anomaly.

Meanwhile the decision in Abdul Kader Haji v. Agricultural I.T. Off. 1966 KLT. 731 appears to have been overruled by implication.