Somnath Iyer, J.
1. A certain Thimmappa Punja who was a resident of the District of Coorg and who died on November 2, 1956, made a will on December 19, 1953. He divided his properties by that will into ten shares. To his two sons he gave 2 1/2 shares each, to his wife and two daughters one share each, and the remaining two shares he disposed of for charity. There was a direction in the will that the properties shall be managed in a particular way and that, so long as that management continued, the income from the properties should be divided into ten equal shares. Out of that income the two sons became entitled two shares each, the testator's wife and two daughters became entitled to a share each, his two sons-in-law became entitled to a half share each, on share had to be applied for charity, and the remaining one share had to be the source of a reserve fund to be utilised for the expenses of management.
2. After the death of the testator, the Agricultural Income-tax Officer assessed the income of the estate left by him under the Mysore Agricultural Income-tax Act. By then, one of the sons of testator had been, under an agreement reached between the legatees, appointed manager to manage the properties. This was recorded in an agreement which was executed on March 12, 1957.
3. The Agricultural Income-tax Officer proposed to make an assessment on the basis that the income was derived by an association of individuals, whereas on behalf of the legatees it was contended that the income of the derived by a partnership or by tenants-in-common. Indeed they made an application under section 29 of the Act for registration of what they called a firm.
4. The Income-tax Officer refused the certificate on the ground that there was no partnership. He similarly repelled the argument that the legatees were tenants-in-common, and so he assessed the income on the basis that the legatees constituted an association of individuals. These assessments were confirmed in appeal by the Deputy Commissioner and they were similarly confirmed by the Commissioner for Agricultural Income-tax in the two revision petitions which were presented.
5. In this writ petition, which is presented by the tastator's son, who is now in management of the properties, the challenge is to the assessments made in that way. We are asked to say that the testator's widow, his two sons and him two daughters hold the property of the testator as tenants-in-common, and that it was not therefore possible for the Income-tax Officer to assess the income as income derived by an association of individuals.
6. Since the refusal of registration under section 29 of the Act has become final, and since the limited contention urged before the Deputy Commissioner and the Commissioner of Income-tax was that the income should have been assessed as income derived by tenants-in-common to which section 3(3) of the Act refers, we should focus attention only on that matter.
7. Section 3(3), on which Mr. Karanth for the petitioner depends, reads :
'In the case of persons holding property as tenants-in-common and deriving agricultural income, the tax shall be assessed at the rate applicable to the agricultural income of the each tenant-in-common.'
8. The Income-tax Officer was of the opinion that since there was a bequest under the will of the testator to charity, and there was also a bequest of the income during the period when the estate was managed in the manner directed by the will to the two sons-in-law to whom no bequest was made in the property, the property was not held by any one as tenants-in-common and that, therefore, the provisions of this sub-section became in applicable. That was also the view which was shared by the Deputy Commissioner and the Commissioner.
9. On the contrary, they were of the view that the legatees along with the sons-in-law constituted themselves into an association of individuals and came within the definition of a 'person' as defined by section 2(1)(p). That definition defines a 'person' as including an association of individuals whether incorporated or not.
10. Mr. Karanth's submission was that, so long as the property bequeathed by the testator was held by the legatees to whom it was bequeathed, as tenants-in-common, the assessment was governed by section 3(3), and so what could be assessed was the individual income of those tenants-in-common. His further submission was that, as provided by section 10 of the Act, after the appointment of the eldest son of the testator as manager for the management of the estate, the individual income which had to be shared by the persons to whom that income was bequeathed was what could be assessed and not the aggregate income.
11. Section 10(1)(a), upon which dependence was placed in support of the second contention, provides among other matters that where agricultural income is derived by a property for the management of which a manager is appointed, by written agreement, the tax shall be levied upon and recoverable from the person on whose behalf such agricultural income is receivable.
12. So, while it becomes clear from section 3(3) that if the property bequeathed by the testator was held by the legatees as the tenants-in-common, what could be assessed is the only the individual income of each one of those legatees; it becomes equally clear from section 10(1)(a) that if a manager was appointed for the management of the property by written agreement executed by the persons who are entitled to receive the income, what has to be assessed is the income of each of the persons who is entitled to received such income.
13. We shall first consider the argument constructed on section 3(3), and the validity of the submission that the property bequeathed by the will was held as tenants-in-common by the widow, the two sons and the two daughters of the testator. It is perfectly manifest from the provisions in the will that the testator bequeathed his property to these five persons, although he bequeathed a fifth share in the property to charity.
14. We are of the opinion that the widow, the sons and the daughters, on the death of the testator, became tenants-in-common in respect of the property bequeathed to them. The property was bequeathed to them in specific shares, and until there was partition of the property by metes and bounds, and each one of the legatees secured possession of his or her own share in the property bequeathed, they enjoyed the status of tenants-in-common.
15. That, indeed, is a very familiar principle.
16. It does not in our opinion make any difference that a fifth share in the property was disposed of by the testator for charitable purposes. The property was held after the death of the testator by his widow, his sons and daughters, and since the testator appointed by his will two executors it became the duty of the executors to apply that share of the property which was disposed of for charity for a charitable purpose. But the fact that some part of the property had been bequeathed for a charitable purpose could not arrest the coming into being of a relationship of tenants-in-common between the widow, the sons and the daughters. So, we reach the conclusion that in the property which was disposed by the testator, the shares bequeathed to his widow, sons and daughters were held by them as tenants-in-common.
17. The discussion made so far will make it manifest that in the case of the widow, the sons and the daughters, the Income-tax Officer had to make an assessment in the manner enjoined by section 3(3) and that he could assess no more than, in the case of each of these persons, his or her individual share of the agricultural income.
18. We reach the same conclusion by another route which is possible under the provisions of section 10(1)(a). That clause, as already observed, directs the assessment of the individual income of the person who is a party to an agreement under which a manger is appointed for the management of the property which has produced the income. The eldest son of the testator was the manager so appointed by agreement between the parties who have to share the income under the provisions of the will, so long as the property was under the management which is directed by the will. If that manager managed the property which produced agricultural income, the clear meaning section 10(1)(a) is that the income of each one of the persons on whose behalf there was such management is what could be assessed.
19. What remains to be considered is the correctness of the postulate which appealed to the Income-tax Officer, the Deputy Commissioner and the Commissioner of Income-tax that the persons which had to share the income under the provisions of the will constituted themselves into an association of individuals within the meaning of the definition of the word 'person' occurring in section 2(1)(p) of the Act. If, as we have already observed, the assessment had to be made under section 3(3) or under section 10(1)(a), the question whether the income was derived by an association of individuals would cease have any materiality. The provisions of section 3(3) are special provisions in the same way in which the provisions of section 10(1) are. The provisions of section 3(3) govern assessments in respect of income produced by a property held by persons who are tenants-in-common. Similarly, section 10(1)(a) is an equally special provision regulating the assessment of income produced by a property under the management of someone appointed by the individuals who are entitled to it. If, therefore, an assessment falls either within the meaning of section 3(3) or section 10(1)(a), that would conclude the matter, and no further question whether the income was derived by an association of individuals could have any relevance.
20. However that may be, we are clearly of the opinion that there was no association of individuals in the case before us. An association of individuals comes into being where two or more persons unit or combine for the accomplishment or the promotion of a particular purpose or aim. Such association of individuals would be born for the purposes of the Agricultural Income-tax Act, when there is a combination of persons composed of individuals who embark upon an enterprise for the production of income or for the acquisition of gain. That that is how we should understand the expression 'association of individuals' occurring in section 2(1)(p) of the Agricultural Income-tax Act was what was explained by the Supreme Court in Commissioner of Agricultural Income-tax v. Raja Ratan Gopal. The Supreme Court made the elucidation that the expression 'association of individuals' was authoritatively defined by Das J. in Commissioner of Income-tax v. Indira Balkrishna in the following words :
'... an association of persons must be one in which two or more persons join in a common purpose or common action, and as the words occur in a section which imposes a tax on income, the association must be one the object of which is to produce income, profits or gains.'
21. We do not feel persuaded that there was any such union of persons in the case before us. The testator bequeathed his property to his wife, his two sons and two daughters. He, however, made a provision in the will that the properties for some time should be managed in a particular way, and he directed that during such management the income should be shared a manner slightly different from the way in which the properties had been bequeathed, and, in addition, he made a bequest of such income to his two sons-in-law to whom no part of the property had been bequeathed. What was done by the legatees was to implement the provisions of the will by the appointment of the eldest son of the testator as the manager. But, nevertheless, the testator's widow and children continued to hold the property as tenants-in-common, although some part of the income had to be distributed amongst the two sons-in-law. No one can say that when the management was entrusted to the eldest son of the testator in compliance with the direction in the will, there was a combination of the testator's widow, his children and his sons-in-law or the acquisition of gain or for the production of income. The of arrangement had for its purpose no other than the collection of the income which the estate undoubtedly was producing even before the agreement was entered into and for its distribution in accordance with the provisions of the will. The appointment of the manager or the arrangement recorded in the will was not an enterprise for the acquisition of gain or for the production of income.
22. That was also how a similar arrangement was understood by the Supreme Court in the case of the Commissioner of Agricultural Income-tax, Hyderabad. The property in that case belonged to a Raja in the erstwhile State of Hyderabad, and on his death there was a firman issued by the Nizam of Hyderabad declaring the four nephews of the Raja to be his heirs, each of them being entitled to a fourth share in the estate. The estate was under the superintendence of the Nizam, and with effect from May 1, 1950, it was handed over to one of the Raja's nephews. During that period, each of the heirs was being given a fourth share of the income of the estate. The question was whether the income relating to the assessment year 1359 Fasli could be assessed as the income of an association of individuals under Hyderabad Agricultural Income-tax Act, 1950, in respect of the income from the estate. The Supreme Court pointed out that, since the nephews did not join in the promotion of a joint enterprise with the object of producing any income or gain, they did not form any such unit. This was what was observed in the course of the judgment :
'The collection of the entire income from the estate by one of the shares or even by a common employee could not make their income an income from a joint venture. Each of the shares got his income as an individual. They could not, therefore, be assessed a an association of individuals for the purpose of the Act.'
23. So it was impossible for the Income-tax Officer to assess the income in the case before us as the income of an association of individuals.
24. Mr. Shantharaju appearing for the respondents contended that the matter became complicated by reason of the bequest to charity and a further bequest of a part of the income to the sons-in-law. We do not agree that it is so. Those bequests cannot bring into existence an association of individuals where there is none.
25. We, therefore, set aside the assessments made by the Income-tax Officers and the orders of the Deputy Commissioner and the Income-tax Commissioner who confirmed them. The Income-tax Officer will now be at liberty to make fresh assessments in accordance with law.
26. The petitioner will be entitled to his costs in this writ petition. Advocate's fee Rs. 250.