1. These two writ petitions pray for the issue of writs of prohibition or other appropriate writs prohibiting the Controller of Estates Duty, Madras, from initiating proceedings against the respective petitioners for the assessment, levy and collection of the estate duty in respect of the properties attached to the Sthanam of the Zamorin Rajah of Kozhikode or Calicut and of the Kuthiravattam Cottara, Coyalmannam amsom and desom, Palghat respectively.
2. We shall first deal in detail with the case of Zamorin of Calicut who is the petitioner in the W.P. No. 59 of 1955 and subsequently with the claims of the proprietor of the other estate.
3. Stated broadly, the main point raised for our consideration in these petitions is the constitutional validity of the explanation to Section 7(4) of the Estate Duty Act (XXXIV of 1953). It will, therefore, be convenient to set out the main provisions of the enactment to understand and appreciate the points raised on behalf of the petitioner. The Estate Duty Act, 1953 (Central Act XXXIV of 1953) provides for the levy and collection of estate duty. Section 1(3) of the Act provides for these provisions coming into force on such date as the Central Government may by notification in the Official Gazette appoint, and the date appointed in that behalf was 15-10-1953. Section 5 which is the charging section enacts:
"5 (1) In the case of every person dying after the commencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid Upon the principal value ascertained as hereinafter provided of all property, settled or not settled, including agricultural land situate in the States specified in the First Schedule to this Act which passes on the death of such person, a duty called 'estate duty' at the rates fixed in accordance with Section 35."
The duty is on all property which passes on the death of every person dying after the commencement of this Act, that is after 15-10-1953. Property which passes on death, includes, not merely that which in the ordinary acceptance of the term devolves from one person to another but also includes certain other categories which are set out in Sections 6 to 16. All these categories are brought in under the head of "property which is deemed to pass" under this enactment and of them the relevant ones in the present context are there included in Section 6 and particularly Section 7, Sections 6 and 7 enact:
"6. Property which the deceased was at the time of this death competent to dispose of shall be deemed to pass on his death.
7. (1) Subject to the provisions of this section, property in which the deceased or any other person had an interest ceasing on the death of the deceased shall be deemed to pass on the deceased's death to the extent to which a benefit accrues or arises by the cesser of such interest, including, in particular, a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara, Marumakattayam or Aliyasantana law.
(2) If a member of a Hindu coparcenary governed by the Mitakshara school of law dies, then the provisions of Sub-section (1) shall apply with respect to the interest of the deceased in the coparcenary property only -- (a) if the deceased had completed his eighteenth year at the time of his death, or
(b) where he had not completed his eighteenth year at the time of his death, if his father or other male ascendant in the male line was not a coparcener of the same family at the time of his death.
Explanation: Where the deceased was also a member of sub-coparcenary (within the coparce nary) possessing separate property of its own, the provision of this sub-section shall have effect separately in respect of the coparcenary and the sub-coparcenary.
(3) If a member of any tarward or tavazhi governed by the Marumakatayam rule of inheritance or a member of a kutumba or kavaru governed by the Aliyasantana rule of inheritance dies, then the provisions of Sub-section (1) shall not apply with respect to the interest of the deceased in the property of the tarwad, tavazhi, kutumba of kavuru, as the case may be, unless the deceased had completed his eighteenth year.
(4) The provisions of Sub-section (1) shall not apply to the property in which the deceased or any other person had an interest only as holder of an office or recipient of the benefits of a charity, or as a corporation sole.
Explanation: For the removal of doubts it is hereby declared that the holder of a Sthanam is neither the holder of an office nor a corporation sole within the meaning of this sub-section." It will be noticed from the frame of this latter provision, to which we shall be referring in more detail later, in the case of joint family property of Hindus governed by the Mitakshara, Marumakattayam or Aliyasantana law, on the death of a member the property in which the deceased had an interest is "deemed to be property passing on his death" to the extent to which a benefit accrues to other members of the family by that death. Sub-section (4) is a rider or an exception to what may be termed the notional passing of the Property where there is a cesser of interest by reason of deaths of members of a joint family of the type set out in Sub-section (1), and this exception applies to cases where the deceased had an interest in the property as the holder of an offiee or as a corporation sole and where this interest ceased by his death, to mention only that which Js material to the present case. The impugned explanation goes on to provide that the holder of a sthanam on whose death there is a cesser of interest is not within the exception or rider provided in Sub-section. (4).
4. It is common ground that the Zamorin Rajah is the holder of a sthanam, and the principal contention raised before us in this writ petition, is as regards the constitutional validity of this explanation, which prdvides for sthanam holders not being treated as holders of an office or a corporation sole for the purpose of this exception in Sub-section 4.
5. We shall now set out a few facts which transpired before this petition and which led to it. The petitioner in, W.P. No. 59 of 1955 is the present Zamorin Rajah of Kozhikode one Manavikraman Zamorin Rajah, Kunhi Anujan Raja a previous holder of this estate died on 16-10-1953, a day after the Estate Duty Act came into force, and he was succeeded by one Kutti Jeshtan Raja. Thereupon the Controller of Estate Duty addressed a communication dated 31-5-1954 to Kutti Jeshtan Raja requiring him to prepare a statement of particulars of all the properties of the late Zamorin of Kozhikode -- Kunhi Anujan Raja, with a direction that these particulars should be furnished to him on or before 30-6-1954. Kutti Jeshtan replied on 19-6-1954 requesting for an extension of time till 31-12-1954 to furnish the particulars called for. The Controller of the Estate duty however granted time only till 1-10-1954 for submitting the accounts. But even before that date, Kutti Jeshtan himself died on 9-7-1954, and the present petitioner succeeded to the Sthanam. The petitioner was required to furnish the particulars and accounts relating to the properties dutiable on the death which took place on 16-10-1953 without much delay and in regard to the succession which took place on 9-7-1954, he was granted time till 8-1-1955. This was by a letter dated 8-10-1954. The petitioner after some correspondence, not very material, wrote on 16-11-1954 to the Controller of the Estate Duty denying his liability for the duty. As in this communication the petitioner had set out the main points raised by him in the petition and which were argued before us, it would bo convenient to extract some portions of it.
"I am afraid you do not appear to have appreciated the true nature and status of the Zamorin of Kozhikode .... He is purely an office holder or corporation sole as has been recognised by repeated decisions of the Madras High Court. To the sthanam is attached large immoveable properties paying an assessment of one lakh of rupees. There are also four residential buildings in the said properties. The Zamorin for the time being has no right to these properties except to realise and enjoy the income there of till his death and reside in the building. The income so realised is appropriated by the. Zamorin himself and disposed of by him. The personal heirs of Zamorin are his wife and children arid not the succeeding Zamorin ........ It is not correct to assume that the properties attached to the office of the Zamorin form the estate of the deceased Zamorin or that the next Zamorin who comes into office is the legal representative of the deceased Zamorin or that one Zamorin is accountable to the estate of the deceased Zamorin.
6. K. C. Manavikrama Zamorin Raja died on 16-10-1953. The accounts show a debt of Rs. 200 and odd. The next Zamorin .......died on 9-7-1954. The accounts show the cash balance to be nil. I am not in possession of the estate of the deceased Zamorin much less of the estate of the prior deceased Zamorin K. C. Manavikrama. No portion of the property of either of the deceased Zamorins has Gome into my hands ........ If however by the expression 'estate of the deceased late Zamorin of Kozhikode' you refer to the properties attached to the office of the Zamorin which he is entitled to enjoy as such I must say that the position is different, The properties, attached to the Sthanam of the office of the Zamorin Raja of Kozhikode are now enjoyed by him as the present holder of the office ....... But I am entitled to realise only the income of the properties, for life and nothing more Under Section 7(4) of the Estate Duty Act, properties attached to the holder of office or a corporation sole are exempt from duty. It is of course true that the explanation to Section 7(4) excludes the sthanies from the benefit of the exemption. But Parliament in granting the benefits of the exemption to all office holders cannot single out the sthani office holders alone for discriminatory treatment and deny them the equality before the law by the process of an exclusive definition. Nor does Section 7(1) of the Act permit the levy of duty on properties of the sort which are attached to the sthanam of the Zamorin of Kozhikode. I am therefore inviting your kind consideration to the facts set out herein and to inform me immediately whether you will propose to institute proceedings to levy estates duty on the properties attached to the Sthanam of the Zamorin of Kozhikode so that in case my contentions are not acceptable to you I may be enabled to take appropriate proceedings in a court of law impugning the validity of the exclusion of the Sthanies from the benefit of Section 7(4) of the Act and the liability of the Sthanam properties to the estate duty."
7. As the Controller did not accept the contention put forward by the petitioner he has filed the present writ, petition under Article 226 of the Constitution praying that the Controller may be prohibited by appropriate writ from proceeding with the imposition and collection of the duty.
8. We shall now briefly set out the contentions raised by Mr. Nambiar, learned counsel for the petitioner as well as the steps in his reasoning on the basis of which the attack on the constitutional validity of the explanation to Section 7(4) was rested:
1." A Sthani or a Sthanam holder is in law the Holder of an office or a corporation sole or both. "The decisions of this Court as well as text writers have uniformly held Sthanis to be office holders. Some of these decisions actually relate to the Zamorin of Calicut and in these reference is made particularly to the pre-eminent status of the Zamorin of Calicut by virtue of his position as a former ruling chief. The text writers have referred to the Zamorin in similar terms and for the same reason.
2. The properties attached to the Sthanam are properties in which the Sthani has an interest only as the holder of an office or as a corporation sole.
3. Section 7(4) places no restrictions, limitations or qualifications in regard to the office, the holder of which is entitled to the benefit of that section, and as such the holder of any office, public or private, sinecure or of service is comprehended within its fold, and entitled to the exemptions or saving provided by it.
4. Similarly Section 7(4) places no limitations or qualifications on the nature of the corporation sole entitled to the benefit of that exception and any corporation sole, however created by custom, common law, prescription or statute would fall within its terms and could claim the exemption enacted by it.
5. While all office holders and every type of corporation sole are within the exemptions creat ed in their, favour by Section 7(4), the explanation, singles out the Sthanam holders for discrimina tory and hostile treatment and this provision'is therefore obnoxious to Article 14 of the Consti tution.
6. The explanation does not attempt any classification much less a classification based upon reasonable criteria among the holders of offices or the several categories of corporations sole but denies to the sthanis alone the benefit of Section 7(4) by enacting that a Sthani who in law is an office holder or a corporation sole does not fall into such categories.
7. Even if the explanation were construed as being based on a classification between different classes of office holders or between different types of corporations, still it discloses on its face no grounds for such classification or for the differential treatment accorded to a Sthani and is therefore violative of Article 14 of the Constitution.
8. There was a further point raised about a Sthani being a trustee within the meaning of Section 22 of the Act and therefore not liable to be charged with duty but this we shall consider separately and later.
9. Before we deal with these contentions and the arguments urged in support of each, which in part were rested on a comparison between the provisions of Sections 5 to 7 of the Estates Duty Act, 1953 and the corresponding U. K. legislation contained in the Finance Act, 1894 (which we shall hereafter refer to as the Finance Act) which levied estates duty in England, we consider that this would be the convenient point at which to set out the corresponding provisions in the Finance Act, 1894 from which the language of the Estates Duty Act, 1953 has in large part teen borrowed. Section 1 of the Finance Act, 1894 corresponds to Section 5 of the Indian enactment and ran in these terms;
1. In the case of every person dying after the commencement of this Part of this Act, there shall, save as hereinafter expressly provided, be levied and paid, upon the principal value ascertained as hereinafter provided of all property, real or personal, settled or not settled, which passes on the death of such person a duty called 'excise duty', at the graduated rates hereinafter mentioned ........ Sections 6 and 7 of the Indian Legislation were combined in Section 2 of the Finance Act and the sub-clauses in this context enacted.
"2 (1) Property passing on the death of the deceased shall be deemed to include the property following, that is to say:--
(a) Property of which the deceased was at the time of his death competent to dispose;
(b) Property in which the deceased or any other person had an interest ceasing on the death of the deceased, to the extent to which a benefit accrues or arises by the cesser of such interest; but exclusive of property the interest in which of the deceased or other person was only an interest as holder of an office, or recipient of the benefits of a charity, or as a corporation sole."
The variation in the language of Section 7 of the Estate Duty Act by including a reference to coparcenary interest in the Mitakshara. Marumakkathayam and Aliyasanthana families necessitated by the Hindu family law does not need explanation. A comparison of Section 7 with Section 2(1) (b) of the U. K. Act will show, that Sub-section (4) of Section 7 was instead of being an independent sub-section, a part of Sub-section (1) to which it is really an explanation, and of course there was no explanation to the sub-section as we have here.
10. It would be seen from the summary we have attempted of the submissions of learned counsel for the petitioner that his entire case is rested upon sthanams and particularly that of the Zamorin of Calicut (the petitioner) being "an officer" within Section 7(4) of the Act, and in the property allotted and enjoyed by a Sthani, his interest being only that of the holder of an office. There was of course a further contention based upon the sthani being a "corporation sole" but as admittedly the concept of "a corporation sole" involves an "office" this would not be an independent line of argument but is really dependent upon the petitioner being held to be "the holder of an office."
11. We shall now consider the question as to how far a sthani is the homer of an office, for unless this question were answered in the affirmative the other contentions would not really arise. We have now to construe the expression "the holder of an office'' within Section 7(4) of the Act. As this expression is not statutorily defined, we have to ascertain its normal connotation, its ordinary dictionary meaning. The House of Lords had to consider the use of the expression "office'' and elucidate its content, in Mcmillan v. Guest, 1942 A. C. 561 (A). Lord Wright observed at page 566 of the report:
"The word 'office' is of indefinite content, Its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following: 'A position or place to which certain duties are attached especially one of a more or less public character."
We shall in the light of the definition contained in the above extract consider how far a Zamorin could be held to be an 'office'. Mr. Nambiar learned counsel for the petitioner referred us to the ancient history of the Zamorin and to passages in books of references dealing with Malabar and particularly the manner in which the position which the Zamorin occupied was set out.
12. Tp start with we might note that "sthanam" is a Malayalam word of Sanskrit Origin. In Sanskrit the word means "place, status or position in life." The dictionaries to which our attention was drawn do not afford much help to the petitioner as the emphasis is on the aspect of position, status or dignity and not so much as on any office. In Wilson's Glossary, 1855, which is usually considered as very authentic and accurate, the word "sthanam" is stated to mean figuratively "rank or dignity," while the word "sthanikan" is said to mean one "who holds or belongs to a place, one who holds an office, a governor or a superintendent of a district." In Gundert's Malayalam dictionary, 1872, the expression "sthanani" is defined: Among the meanings of this word the one relevant for us is "situation, station, rank." The lexicographer then refers to the meaning given in an early Malayalam work Kerala Utpatti as "grandeur". He proceeds: "In Travancore territory the word means "the office he held as also office and dignity of a guru," and "sthanam' is further defined as "holding an office, rank or a privilege."
13. Next we have an account in Moore's Malabar law and Custom 1905 of the origin of sthanams in Malabar and the learned author says:
"The word 'sthanam' means a dignity and primarily denotes the status of the senior Rajahs in the Malabar Kovilagams or palaces ..... The creation of a sthanam, with property appurtenant thereto, indicates a somewhat advanced stage of civilization when joint ownership was developing into individual ownership. Probably the first step was the separation of certain portions of the common property for the individual enjoyment of the senior Rajahs, the other members of the family, male and female, being supported by the Kovilagam in which they were born....... ......... .. ..... .. .............
Accumulations made by a sthani are at his absolute disposal, but, if undisposed of in his lifetime pass to the Kovilagam or family in which he was born. The burden of proof lies on the alienee. A sthani has a life estate and can create subordinate tenures in accordance with custom, but cannot alienate sthanam property, except in cases of necessity and for the benefit of the tarwad. .... ..... ..... ..... ...... ......
Many Nayar families of respectability have adopted the customs of the Rajahs and created sthanams to be filled by the senior members of one house or of several houses connected with one another by community of pollution." The family of the Zamorin is dealt with at page 343, by a quotation from Mr. Logan's Preface to his collection of records relating to Malabar. In the passage extracted after setting out the five branches of this family the first among them being the sthanam of the Zamorin of Tamudri, Mr. Logan continues : "to each of them a certain portion of the tarwad property is allotted to enable him to maintain his sthanam or dignity and he is called a kurvalcha or joint ruler." Mr. Moore then extracts the history of the Zamorin family as set out in a judgment of this court in Vira Rayen v. Valia Rani Pudia Kovilagam, Calicut, ILR 3 Mad. 141 (B) in the following passage:
"The family comprises three Kovilagam or houses, the Pudia, Padinijara, and Keyake kovilagams. Of those, each has its separate estate and the senior lady of each kovilagam, known as the Valia Tamburatti of the Kovilagam, is entitled to the management of the property of the Kovilagam. There are five sthanams "or places of dignity", with separate properties attached to them which are enjoyed in succession by the senior male members of the Kovilagams. These are in order of dignity (1) the Zamorin, (2) the Eralpad, (3) the Munarpad, (4) the Edotharapad, and (5) the Nadutharpad; and it would Seem that, at the beginning of the century, there was also a sixth Stbanam known as the Ellearadi Tirumalpad, but, as no mention is made of this Sthanam in the present proceedings, it may be that it has ceased to exist. ..... .... ...
There are no family names, and the Sthanam-holders are distinguished after their deaths by the name of the year in which they respectively died. All property acquired by the holder of a Stbanam which he has not disposed of in his lifetime or shown an intention to merge in the property attached to the Sthanam, becomes on his death the property of the Kovilagam in which he was born", (underlining ours (here in ' ')). From these extracts we do not find it possible to show that the Sthani was an office.
14. To proceed with the further citations by learned Counsel for the petitioner the position of a Sthani is thus described in the Malabar District Gazetteer which was prepared by Mr. Innes, L C. S. at page 97:
"Among the more influential families, and more especially those of the Rajas called Kovilagams, it is customary to set aside certain portions of the tarwad property for,the life enjoyment only of the senior members. 'The separate estates thus created are called Sthanams. The word means dignity and denotes the status of the senior members of the family, the theory being that the separate estates are assigned to enable them to maintain their position.' The Sthanams are enjoyed in succession by the several members of the family, as they succeed to the position to which they are attached. Thus the Zamorin's family is divided into three Kovilagams... each with its separate estate under the management of its senior lady or Tamburatti; and there are live Sthanams with separate properties set apart for the enjoyment of the five senior members of the whole family, who bear the titles of Zamorin ........The Sthani is in the position of a trustee with regard to the Sthanam property; he has only a life estate, and cannot alienate except for the benefit of the tarwad as a whole."
15. Our comment as regards the above passage is in no way different as would be seen from that which we have underlined (here in ' '). The postition is not improved by the manner in! which the origin of the institution and what it means is set out in Mr. Sundara Aiyar's Malabar and Aliyasanthana law:
" The word 'sthanam' is of Sanskrit origin, and means 'position' or 'place' and secondarily in the Malayalam language a position of dignity. In the case of certain positions of dignity, there is property attached for the, maintenance of the dignity and for the fulfilment of the duties attached to the position. As a technical word 'sthanam' means a position of dignity of this kind', that is, one to which certain specific property is attached, and which passes with it, and is held by the person who fills the sthanam for the time being and who is known as the sthani... The origin of sthanam is by no means clear and is more or less a matter for speculation. In the first instance, it seems to have owed its origin to political exigencies and was a creature of public law.......The kings who ruled over Malabar were mostly governed by the Marumakatayam law, according to which all property is held in common by the whole family and the, senior-most member succeeds to the management. The rule of succession to the Crown was exactly the same, the eldest member of the Royal family, whether related to the ruling prince as a brother, cousin, or nephew, being entitled to succeed him in the mushad. Naturally it was considered necessary in the circumstances that for the maintenance of the dignity of the ruler he should own properties in which the members of the tarwad as such had no right or interest and which would pass with the Crown to his successor-.... and consequently in the family of the Zamorin who ruled over ihe greater part of Malabar, there were properties attached not only to the sthanam of the reigning prince or Zamorin, but to the four next in succession (and apparently five in former times.......But it should not be supposed that sthanams with separate properties attached to them existed in the families of all the former ruling chiefs......Whether the properties attached to the sthanams were originally the result of endowments by the State or of severance of a portion of the family property for the benefit of the sthanam holders, it is not possible at this time to state with any certainty."
16. Dealing with the manner in which the property became vested in the Sthanam holders, the learned author says:
"It appears probable that in the case of some chieftains and public officers, sthanams were created by the ruling king who, when he appointed the head of a particular family to an office with hereditary succession attached also certain lands for the maintenance of the office-holder; some such sthanams seem to have been created by the Zamorin... ....In addition to the families of princes and chieftains, there are other families also in which we find sthanarns in the technical sense though without any particular dignity attached to them. The creation of Sthanams in such cases was merely the result of mutation. When a family became very opulent and influential, it was sometimes deemed necessary in order to keep up its social position and influence that the head should be able to maintain a certain amount of state, and for that purpose the members of the family agreed to set apart certain property for him and such property would descend to the head of the family for the time being. Whatever may be the origin of the sthanam in any particular case, whether it was the result of public law, or owed its origin to a grant by the ruling chief to the holder of an office, or was merely the result of an arrangement amongst the members of a tarwad for the maintenance of its social prestige and influence, the property vests not in the family of the holder, but in himself individually and descends to the person who succeeds to his dignity. Another feature is that the sthani's ownership and interest in the property of his tarwad ceases on his accession to the sthanam..........His accession to the sthanam operates as a severance from the family. In consideration of his solely becoming entitled to the sthanam property it was probably considered fair that he should give up his existing right in the property of the tarwad."
17. to a similar effect is the summary in Mayne's Hindu Jaw 11th Edn. in the Chapter Marumakatayam and Aliyasantana law:
"Some of the aristocratic Hindu families in West Coast have attached to their families an office called 'sthanam' meaning literally station, rank, or dignity. The holder of a sthanam is called a sthahi. The ancient rulers of the Malabar coast possessed sthanas and it may be taken that the lands which they held as rulers were regarded as being sthanam in character. Rulers granted sthanams to their subsidiary chieftains, and public officers. The grant of sthanam to a subsidiary ruler or public officer was usually accompanied by a grant of land for the maintenance of the dignity. In addition to the families of princes and chieftains there were other families possessing sthanams without any particular dignity attached to them .. .The incidents of the institution are now well settled. Usually the senior most member of the family male or female attains the sthanam and there can be more than one sthanam in the same family. Separate properties appertain to each sthanam and they vest in the holder of the office for the time being and descend to the successors in office....... Though the estate taken by a sthani is a limited one, it is not a mere life estate. He is absolutely entitled to the income accruing during his tenure of office. He can also encumber or alienate the sthanam properties for legal necessity just like any other limited owner.......When a sthanam ceases to exist by the extinction of the tarwad the memb'ef s of which were entitled to succeed to the office, the property passes by escheat to the Crown and the last holder's personal heirs cannot take the property by inheritance."
18. Learned counsel for the petitioner placed reliance on the use of the expressions "office" and "office holder" in referring to the "sthanam" and "sthani", in the above extracts, a matter to which we shall avert a little later.
19. As regards the incidents of the Sthanam office as well as the tenure under which the sthani held the properties, which, according to the submission of counsel for the petitioner, appertained to the office, learned counsel referred us to several decisions among which we will refer to the more important ones.
20. In Chemminikara Muppil Nair v. Killyanath Ukona Menon, ILR 1 Mad. 88 (C), an argument was attempted that lands attached to a Sthanam could not be alienated at all. A previous sthani had contracted debts for legitimate purposes, namely, for carrying on suits for recovering lands formerly belonging to a sthanam for the purpose of funeral etc. ceremonies, and for repairing the Sthanam house. A creditor filed a suit to recover the amount of his debt, attached the sthanam property and had it sold. The then sthani brought a suit to set aside the attachment and sale on the ground that the debts of the previous sthani could not be realised after the debtor's death out of the sthanam property as those were appurtenant to the sthanam and so could not be sold. The District Munsiff decreed the suit which was reversed in appeal by the District Judge. A second appeal to this court by the sthani was rejected. The actual decision in the case affords no assistance to the petitioner, but Mr. Nambiar cited it because of the reference of Hollaway J. to the position of the Zamorin:
"In the case of the Zamorin there are decisions that the property of his house is held on terms different to those of others. In his case, however, it has never been decided that the property attached to his sthanam is not liable for debts incurred for its conservation. He stands in a peculiar position, and, as has been before pointed out, there is the strongest presumption against any other family having a right to claim exception from the general law of the courts."
ILR 3 Mad 141 (B), passages from which have been extracted in text books to which we have already referred was a decision of Turner C. J. and Muthuswami Aiyar J. and the case related to the family of Zamorin. The headnote of the report in the ILR brings out the point decided:
"According to the custom obtaining in the family of Zamorin rulers of Calicut, property acquired by a Sthanam holder and not merged by him in the property of his Sthanam or otherwise disposed of by him in his lifetime, becomes on his death, the property of the Kovilagam in which he was born and if found in the possession of a member of the Kovilagam belongs presumably to the Kovilagam as common property."
We are not now concerned with the correctness of this decision but with the description of the sthanam pertaining to the Zamorins of Calicut. The learned Judges in their judgment relating to the family of the Zamorins said:
"The family comprises three Kovilagams or houses.......Of those, each has its separate estate and the senior lady, of each Kovilagam....., is entitled to the management of the property of the Kovilagam. 'There are five Sthanams or places of dignity with separate properties attached to them,' which are enjoyed in succession by the senior male members of the Kovilagams."
It will be seen that this passage does not very much help the petitioner as the Sthahams are referred to in the portions underlined by us (here in ' ') not as offices but as, merely places of dignity.
21. Learned counsel also relied on a passage in the judgment of the Privy Council in Venkateswara Iyan v. Shekhari Varma, ILR 3 Mad. 384 (D), which related to the Rajas of Palghat. Sir Arthur Hobhouse thus described these families:
"It appears that in the families of the Malabar Rajas it is customary to have a number of palaces, to each of which there is attached an establishment with lands for maintaining it, called by the name of a Sthanam. The Palghat family have no less than 9 Sthanams. Each Sthanam has a Raja as its head or Sthanamdar. The Sthanamdar represents the corpus of his Sthanam much in the same way as a Hindu widow represents the estates which have devolved upon her, and he may alienate the property for benefit and proper expenses of the Sthanam."
22. In our opinion this passage far from supporting the petitioner's theory of the sthanam being an office is against him because of its bringing in the analogy of the Sthani being in the position merely of a limited holder such as a Hindu widow. Lastly learned counsel referred us to the decision of the Privy Council in Kochunni v. Kuttanunni, ILR 1948 Mad 672: (AIR 1948 PC 47) (E), where the tenure and incidents of the Sthanam of the Kavatappara Swarupam came up for consideration. Counsel urged that by reason of their origin and history the incidents of various Sthanams might be different and that though the Judicial Committee held in ILR 1948 Mad 672: (AIR 1948 PC 47) (E) that the Sthanams of Muppil Nayar approximated to the tenure of an impartible estate, in regard to which the holder for the time being owned the Sthanam much in the same way as a Hindu widow represents the estates which have devolved upon properties as exclusively at his disposal, the same would not apply to the case of the Zamorin of Calicut. We do not however consider it necessary to examine this decision in any detail for so far as the present point is concerned, it does not affect it one way or the other. Mr. Nambiar also invited our attention to the fact that in the 18th century the Zamorin of Calicut held the office of a chief having ruling powers and that he entered into engagements and treaties with foreign powers and referred us to a treaty dated 17-4-1852 between the Zamorin and the Dutch Governor of Zanzibar. After the British entered on the scene there was a treaty between Major General Meadows, then Governor and Commander-in-chief of the English Forces, and the Zamorin whereby the latter was invested with "the sole management of all the countries theretofore included in the province of Calicut which are or may "be conquered by the British troops" thus recognising the Zamorin's ruling powers. We were referred to other similar agreements indicating that the Zamorin was at one lime a ruling chief. Subsequently the powers of the Zamorin as a ruler were extinguished; the contention however was that notwithstanding this denudation of his political power in relation to public affairs, he still continued to exercise powers as pertaining to his office as Zamorin. In an additional affidavit which was filed on behalf of the petitioner it was stated:
"....... .whatever may be the incidents attached to the other sthanams, the Zamorin's sthanam is an office and the Zamorin for the time being is an office-holder and a Corporation sole. The Zamorin holds the Sthanam as a trustee for his successors and his Kovilagam."
The details of the incidents of the Zamorin's office after he ceased to be ruler were thus set out:
"By virtue of his office the Zamorin is also the repository of all social dignities; within his territories. Titles such as "Achan", "Menon", "Valichapadu", "Moopan", 'Maracair' etc., are conferred by the Zamorin ..........The office of the Zamorin combined in itself not only political power but various other rights and duties in regard to caste, temples and religion within his territory. The political sovereignty was lost with the British conquest. But all other rights and duties appertaining to his office continued as of old. The Zamorin as is well known is the 'Melkoima' ot the temples of his Swaroopam... ....disputes which arise with reference to the customary rights in the temple or precedence in honour, or such allied matters are referred as from time immemorial to the Zamorin and are adjudicated upon by him. Further all cases can still be decided only by the Zamorin. For instance Sankarasmrithi lays down a code of rules for the conduct of enquiries into allegations against the chastity of a Nambudiri woman .......Then again Whenever a Yagna is to be held, permission has to be obtained from the Zamorin. Shortly stated save in respect of ruling rights and duties at tached to the office of the Zamorin, all other rights and duties of his office still continue and are exercised by consensus of the community whenever occasion demands."
23. In an additional counter affidavit filed on behalf of the respondent, the matters which we have set put were not denied, but it was said that these were the result of the social privileges enjoyed by the Zamorin by reason of his previous pre-eminence as a ruler and that these could not either constitute duties performed by him or render the Sthanam of the Zamorin an office within the meaning of Section 7 of the Estate Duty Act.
24. We shall before considering the evidentiary value, of, these matters in relation to the sthanam of the Zamorin being an "office" within Section 7(4) of the Estate Duty Act refer to one other circumstance on which considerable reliance was placed by Mr. Nambiar. This was in reference to the defence raised on behalf of the Madras Government to O.S. No. 11 of 1938 on the file of the District Judge of North Malabar and the decision of the District Court in that litigation.
25. The suit related to the properties pertaining to the sthanam of Koothali Swaroopam, a Nayar family governed by the Marumakattayam law. The last Sthani died in July 1936 leaving a will by which he bequeathed all the properties of the Sthaham or Swaroopam in favour of defendants 1 to 3 and the putravakasam tavazhi of the fourth defendant in that suit. The plaintiff was a creditor claiming under a registered bond of the deceased sthani and sought payment of his debt out of the Sthanam properties. The Government of Madras who was impleaded as the fifth defendant disputed the operative character of this Will and claimed that all the properties of the Swaroopam escheated to the Crown when the last sthani died. The contention of the Government was that the sthani was ah office holder, that the sthanam properties devolved not on the personal heirs of the last sthani but on the successor to the office with the legal result that the sthani for the time being had no power to dispose of that property by testament and that as under the customary law there was no such successor, the properties escheated to the Crown the Will being inoperative. The trial court upheld the claim of the Government. The reasoning of the learned District Judge who upheld the claim to escheat may be stated in his own words. After setting out the position of a sthani in relation to sthanam properties, he said:
"The first essential of a sthanam is that the property vests not in the family of the holder but himself individually. Another feature is that the Sthani's ownership and interest, in the properties of his tarwad ceases on his accession to the Sthanam, and he becomes cut off for the time being from connection with his main tarwad while the other members of his tarwad have no right whatever to or in the Sthanam properties .......Yet another feature is that the Sthanam is descendible from one Sthanam holder to another in a peculiar line of succession, and each successive holder is in the same position as an ordinary heir succeeding on intestacy..... .These principles yield the following results, namely, that the Sthanam is a juristic entity capable of holding properties, which is independent of and not subordinate to the tarwad;....... and that there is no right of survivorship to the Sthanam which is descendible from one holder to another in a peculiar line of succession."
The learned District Judge proceeded to hold that the interest of the Sthani in the properties of the Sthanam was a limited one akin to the interest of a Hindu widow in the estate of her husband under the Hindu law and that there could be no enlargement of this estate, the Sthani being treated as the full owner of the properties, merely because there was no one to succeed him to the office and for whose protection the restriction on the powers of alienation was imposed. On this point he applied the ruling of the Privy Council in the Kavali case Collector of Masulipatam v. Cavaly Vencata Narainapah, 8 Moo Ind App 529 (PC) (P) that the restrictions of a Hindu widow's power of alienation were inseparable from her estate and did not depend upon the existence of some heir capable of taking on her death. On these grounds he held that the properties escheated to the Government, though the plaintiff's claim was allowed on the ground that the alienations were for necessity and were binding on the estate.
26. The learned District Judge found these issues which arose only between defendants 1 to 4 and the Government in the manner we have set out but held that the debt due to the plaintiff was binding even on the Government and passed a decree in his favour for the sum claimed with costs. He however directed defendants 1 to 3 to pay half the costs of the fifth defendant, the Government because of the former's failure to sustain their plea againat the claim to escheat put forward by Government. Defendants 1 to 3 filed an appeal to this court A. 6. No. 198 of 1941 questioning the propriety of this direction as to costs. The appeal was settled out of court and was allowed because of the Government's agreement to waive their claim to the costs decreed to them. The claim of the Government however on the basis of escheat which was covered by issues 7 and 8 was expressly left open between the parties who were arrayed as co-defendants in that action. Though counsel for the petitioner cannot point to any affirmation by this Court of the views of the District Judge, his contention, was based on the position taken by Government in their written statement which was stated to have been accepted by the District Judge.
27. On the basis of the extracts from text books and reference books which we have adverted to earlier as well as the restatement of the position in the Koothali case coupled with the decisions of this court which we have referred to earlier, learned counsel for the petitioner contended that ail these had proceeded on the basis that the Sthanam was an office held by the Sthani. He urged that this was the ratio of the judgment in the escheat case because it was the absence of a successor to the office which was held to result in the escheat in the presence of personal heirs who were also legatees.
28. Having considered this argument carefully we are clearly of the opinion that counsel's submission that the Sthanam is an office within the meaning of expression used in Section 7 is not well founded. In our judgment the expression 'office' in this context has to be understood in the sense defined by Lord Wright in 1942 A.C. 561 at p. 566 (A), "a position to which certain duties are attached." Every writer on the subject as well as the learned Judges who had to consider this matter have referred to the Sthanam merely as a dignity, that is, as entitling the Sthani to ihe caste, social or religious privileges or precedence, Counsel can rely only on some stray references to the description of the Sthanam as 'an office' where they had no occasion to discuss and decide specifically whether it was an office or not in the sense we have mentioned above.
29. We find support for the view we have expressed above in the decision of this court on the meaning of the expression 'office' which occurs in Section 9 C.P. C. Though it is in the explanation that the expression is used, we shall set out the entire provision in order that the scope of the explanation might be properly appreciated:
Section 9. The Court shall (subject to the provi sions herein contained) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or implicitly barred.
Explanation: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. The meaning of the expression "suit in which the right to property or to an office is contested" occurring in the explanation has come up for consideration before the courts, and it has always been held that the office here referred to comprised only that where the incumbent had duties to perform. It has been held that the claim to honour as the Guru of a certain caste, (he having no duties to perform) and to precedence, at worship at religious festivals was a mere dignity of honour and not cognisable by a Civil Court. Of course, if properties were attached to the "office" even as a dignity and the claim was to the properties so attached it would be within the jurisdiction of the court, not on the ground that a right to the "office" was involved, but because the court was called upon to adjudicate regarding rights to properties. Thus in Tholappala Charlu v. Venkatacharlu, ILR 19 Mad 62 (G) this court had to consider the claim of the plaintiff who sued for a declaration of his title to the hereditary office of the priest of Samayacharam. The defendants claimed the office and collected contributions as holders of such office. The office to which the plaintiff laid claim was not connected with any particular temple and no specific pecuniary benefit was attached to it, the duties stated being to exercise spiritual or moral supervision over persons of a particular caste. Collins C.J. and Parker J. held that the suit was not cognizable by a civil Court. A Bench of this court consisting of Benson and Sundara Ayyar JJ; had to consider in Mundancheri Koman v. Mundancheri Puvayll, 1911-1 Mad WN 353: 10 Ind Cas 110 (H) the question whether a Sthanam was itself an office within Section 9. They answered it in the negative and said: .
"The plaint asks for a declaration that the plaintiff is entitled to the Sthanam of Koherseri Nair, but does not state whether there are any properties attached to the Sthanam. If there are none, the suit would be one relating to a mere dignity and would not be maintainable." Sundara Aiyar, it should be remembered, was an authority on the law and usages of Malabar and from whose text book on the topic we have extracted some passages earlier.
30. We are unable to agree with counsel that the contention raised by the Madras Government in the Koothali case which succeeded constitutes strong if not incontestable proof that a Sthani is the holder of an office. We understand that decision to establish, only these two propositions: (1) that the restrictions on the powers of a Sthani over the Sthanam properties are part and parcel of and are inseparable from the estate and do not stand enlarged by the absence of an heir; (2) that the heir to Sthanam property is under the customary law not the personal heir but the next sthani and if under custom there is no one who could claim the place of the next sthani, the deceased must be taken to have died without leaving any heirs. It is the same idea that was expressed by Wallis C.J. where in Raja of Palghat v. Raman, ILR 41 Mad. 4: (AIR 1918 Mad 675) (N), he said "A slhanam according to the law of Malabar is descendible from one Sthanam to another in a peculiar law of succession.
31. No doubt the Government appear to have contended that the Sthani was an office holder but there is no question of estoppel and as the point in the present form did not arise for consideration, the decision does not constitute any real authority in favour of the petitioner.
32. It is not necessary for the purpose of the present case to decide finally whether the office referred to in Section 7(4) should be a public office or whether it would not include a private office. We shall assume that the expression "office" is apt to include a private office for there is the authority of Channell J in Attorney General v. Eyres, 1909-1 K.B. 723 (I), for the position who held that the office of an executor or of a trustee is within Section 2 (b) of the Finance Act of 1894. We are however of the opinion that an office within Section 7(4) of the Estates Duty Act, whether it be honorary or paid, is one that involves duties. Mr. Nambiar, learned counsel for the petitioner, contended that sinecure offices were within Section 2 (b) of the Finance Act and instancing the case of sinecure benefices, urged this as a ground on which we should hold that notwithstanding that a Sthani had no compellable duties to perform the Sthanam he held had all the other elements of office and should therefore be treated as one within Section 7(4). Though ecclesiastical offices are 'offices' within Section 2 (b) of the U.K. Finance Act, and possibly the most numerous of those enjoying the advantage of the exemption and of these some are sinecure benfices we consider that sinecure benefices in England are wholly the result of historical accident and do not furnish any guidance for determining the nature of the office falling within Section 7(4). We do not consider it necessary to embark on the course of history which accounts for these sinecure benefices. Suffice it to point out that in some parishes the rector acquired the right to obtain institution both of himself and a vicar to the church and benefices so that both together had the cure of souls and the duty to officiate. But in course of time these functions were left to the vicar alone with the result that the rectory became a sinecure. They are curiosities or exceptions and their existence cannot furnish any basis for the contention that every sinecure private office falls within the expression "office" in Section 7(4) of the Estates Duty Act.
33. The next contention urged on behalf of the petitioner was that the Sthani was a corporation sole. In this connection learned counsel relied on a passage in Salmond's Jurisprudence, at page 327 which ran:
"Corporations are of two kinds, distinguished in English law as corporations aggregate and corporation sole .... ..... Corporations sole are found only when the successive holders of some public office are incorporated so as to constitute a single, permanent, and legal person. The Sovereign for example, is said to be a corporation of this kind at common law".
Note (s) at page 328 reading:
"Corporations sole are not a peculiarity of English law. The distinction between the two forms of incorporation is well known to foreign jurists. See Windscheid, 1, Section 57 Vangerow 1, Section 53, The English law as to corporation sole is extremely Imperfect and undeveloped but the conception Itself is perfectly logical, and is cap able of serious and profitable uses."
And a further passage at page 329:
"In the case of corporations sole, the purely legal nature of their personality is equally apparent. The chief difficulty in apprehending the true nature of a corporation of this description is that it bears the same name as the natural person who is its member for the time being, and who represents it and acts for it..... ..... Nevertheless under each of these names two persons live. One is a human being, administering for the time being the duties and affairs of the office. He alone is visible to the eyes of laymen. The other is a mythical being whom only lawyers know of, and whom only the eye of the law can perceive. He is the true occupant of the office; he never dies or retires; the other, the person of flesh and blood, is merely his agent and representative, through whom he performs his functions. The living official comes and goes, but this offspring of the law remains the same for ever."
34. In connection with this argument of a Sthani being corporation sole learned counsel also relied upon the observations of Bashyam Aiyangar J. in Vidyapurna Tirthaswami v. Vidyanidhi Tirthaswami, ILR 27 Mad. 435 (J). The question before the court related to the nature of the office of Matathipathi which the learned Judge likened to that of a corporation sole, analogous to the office of a Bishop; and dealing generally with the concept of a corporation sole in the Mitakshara law, the learned Judge, referring to Sthanams of Malabar, said (at page 459).
"...... a corporate character also formerly belonged to several important public offices in India, especially military and police, notably poligars. Except in the case of sthanams of Malabar -- which still preserve their original corporate character, the sthanis still being corporations Sole -- the corporate character of ancient zamindars and poligars, has, by a long course of judicial decisions, been destroyed..... If the succession of a single heir by a rule of primogeniture or the selection of the most competent among the heirs to succeed to the zamindari or poliem-- and the incident of inalienability had both been based on what I consider was the sound jural basis, viz. that the zamindar or poligar was a civil corporation sole, charged (even now) with quasi public duties ....... and that each natural person who for the time being was zamindar or poligar had, as in the case of ecclesiastical corporations, only a life estate in the zamindari with a very restricted power of alienation lor necessary purposes, but with absolute beneficial enjoyment of the revenues, subject only to the burden of maintaining or making suitable allowances for the members of the family, the question as to whether poliems and ancient zamindaries were in each case partible or impartible would not have arisen ......... The corporate character of these institutions having however long been destroyed by judicial decisions ......it is unnecessary to elaborate any further the theory of "lay civil corporations" under the common law of this country and advert at any length to the origin and growth of these as important political and official institutions."
The views of Bhashyam Aiyangar J. as regards the analogy between Matathipathis and Bishops were adversely commented on by the Judicial Committee and should be taken to be no longer law. What however relied on by learned counsel were the description of the position of Sthanis. In our opinion, these observations of the learned Judge were merely obiter, and he had not to consider the real nature of a Sthanam or of the functions to be discharged by a sthani. Apart from this, it would be apparent even from the extracts of the passage from Salmond's Jurisprudence relied on by learned counsel that it is only the holding of'an office that could constitute a corporation sole and as we have negatived the theory that the Sthanam is an office, it follows that a Sthani cannot be a corporation sole.
35. The learned Advocate General addressed to us elaborate arguments to establish that the concept of a corporation sole was a peculiarity or even a freak of the English common law and was no part of the law of India. In the note (s) at page 328 of Salmond's Jurisprudence, which we have extracted above, where a reference is made to the views of foreign jurists the Advocate. General pointed out is merely a reference to ancient Roman law as the works of Windsheif and Vangrow were both commentaries oil the Pandects of Justinian. Therefore besides the English common law corporations sole are to be found only in the Roman law. If the English common law were taken as a guide, then to entitle it to legal recognition it had to be established as having existed beyond the memory of man. In other words, it must be proved to have come down from beyond 1189 A. D. If the contention were that the English common law were imported into this country, that test would have to be satisfied. Surely if that test were applied the petitioner cannot succeed. But apart from this very technical point, the learned Advocate General urged that there waa no need to import this common law doctrine of corporation sole, which Wag a freak even in England into Indian Jurisprudence. To substantiate this contention as regards the institution even in England being exceptions and a freak the learned Advocate General relied on the description of the corporation sole in Mark by on Elements of law. In paragraph 145 the learned author thus refers to the corporation sole:
"There is a curious thing which we meet with in English law called a corporation sole, A corporation sole is always some sort of officer, generally an ecclesiastical officer ..... The term 'corporation sole' is, therefore, as it appears to me, a misnomer. The selection of persons who are styled corporations sole is a purely arbitrary one. The king is said to be a corporation. sole, and so is a parson ........on an examination of the position of so-called corporations sole it will be seen that they": are not really juristical persons, but only natural persons peculiarly, situated as regards the acquisition and incurring of rights and duties."
In Janks "Elements of law" at page 145 corporations sole are referred to as "a freak of the English common law," and the learned author says that the only known or recognised lay corporation sole was the Sovereign of England, all others being ecclesiastical corporations. Blackstone in his commentaries Book 1, chapter 18, referring to corporations sole says:
"Corporations sole consist of one person only and his successors in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly, that of perpetuity, which in their natural persons they could not have had. In this sense the king is a sole corporation; so is a bishop, so are some deans, and prebendaries, distinct from their several chapters; and so is every parson and vicar."
The only instance therefore of a lay corporation sole in England is that of the king.
36. Dealing with the origin of the conception of corporations sole as regards ecclesiastical offices Blackstone says:
"At the original endowments of parish churches the freehold of the church, the churchyard, the parsonage house, the globe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompense to him for his spiritual care of the inhabitants and with the intent that the same emoluments should ever afterwards continue as a recompense for the same care. But how was this to be effected?
The author assigns this as a reason for distinguishing between the offlce and the incumbent for the time being, as merely a method by which the properties became vested in the successor of the office.
37. In Grant on Corporation at page 262 it is stated that there were only two instances of common law lay corporation, namely, the Sovereign of England and the Chamberlain of London, all the others being ecclesiastical corporations.
38. Pollock on principles of Contract, 13th Edn. described the nature of corporate bodies and the distinction between corporations and the persons composing them thus (at page 90).
"In a complex state of civilisation, such as that of the Roman empire, or still more of the modern Western nations, it constantly happens that legal transactions have to be undertaken, rights acquired and exercised, and duties in curred by or on behalf of persons who are for the time being charged with offices of a public natare involving the tenure and administration of property for public purposes, or interested in carrying but a common enterprise or object .... ...... The rights and duties thus created as against the world at large are wholly distinct from the rights and duties of the particular persons immediately concerned in the transactions ........ This distinction is conveniently expressed in form by the Roman invention, adopted and largely developed in modern systems of law, of treating the collective persons who from time to time hold such a position --or, in some cases and accordingto some opinions, the property or office itself --as a single and continuous artificial person or ideal subject of legal capacities and duties. It is possible to regard the artificial person as a kind of fictitious substance conceived as supporting legal attributes; and in fact this was, until late, the prevailing theory of modern civilians on the continent .. ... The corporation becomes, within the limits assigned to its existence a body distinct from the members composing it, and having rights and obligations distinct from those of its members."
Dealing next with the corporation sole, the learned author said at page 93:
"The holders of ecclesiastical benefices and dignities are said, by an analogy which is of no great antiquity, to be 'corporation sole'. Little or no useful result seems to be attained, for the alleged corporate character of a person does not prevent the freehold of the church from being in abeyance when he dies, though a grant to an existing parson and his successors is effectual. By a still more doubtful extension of the analogy, the Crown is said to be a corporation sole; and the same description has been applied by statute to the holders of a certain number of public offices, sometimes for specially limited purposes with resulting complications or anomalies. One is tempted to say of corporations sole, as medieval schoolmen said of the angels, that they do not form a species but every one is a species by itself. It may be sufficient to observe, so far as the principle is concerned, that for many centuries the Vatican and its contents --to say nothing of the spiritual powers and other temporal possessions of the Holy See --have been held under an absolutely unique system of succession, but it has never occurred to any one to call the Pope a corporation sole. At any rate, the persons whom we have to call corporation sole in England can do very little in their corporate capacity, and in particular cannot bind or even benefit their official successor by contract, except in one or,two peculiar cases."
39. Professor Maitland has dealt with the history of the conception of the corporation sole in English law in an article in 16 Law Quarterly Review, p. 335. The learned jurist quoted with approval the description in Markby's Elements of Law which we have extracted earlier as also passages in Pollock on Contracts and said:
"In England we are within a measurable distance of the statement that the only persons known to our law are men and certain organised groups of men which are known as corporations aggregate....... As it is, however, the corporation sole stops, or seem to stop, the way...... We suppose that we personify offices.
Blackstone, having told us that the honour of inventing' corporations entirely belongs to the Romans' complacently adds that our laws have considerably refined and improved upon the invention, according to the usual genius of the English notion; particularly with regard to sole corporations, consisting of one person only, of which the Roman lawyers had no notion If this be so, we might like to pay honour where honour is due, and to name the name of the man who was the first and true inventor of the corporation sole."
He then dealt with the history of the concept of the corporation sole which according to him started in the middle of the 16th century and the limitations or imperfections of the complete personality of such a corporation and concluded: (at page 353),
"But to all appearance there can be no legal transaction, no act in the law, between the corporation sole and the natural man who is the one and only corporator. We are told, for example, that a sole corporation, as a bishop or a parson, cannot make a lease to himself, because he cannot be both lessor and lessee........ Those who use such phrases as these show plainly enough that in their opinion there is no second "person" involved in the cases of which they speak; "he" is "himself", and there is an end of the matter. I can find no case in which the natural man has sued the corporation sole or the corporation sole has sued the natural man. When a man is executor, administrator, trustee, bailee, or agent, we do not feel it necessary to speak of corporateness or artificial personality, and I fail to see why we should d6 this when a man is a beneficed clerk. Whatever the Romans may have done --and about this there have been disputes enough --we have made no person of the hereditas Jacens...... the ecclesiastical corporation sole is no 'juristic person'; he or it is either natural man or juristic abortion."
40. If this were the state of the law as regards the corporation sole not so created by statute, it goes without saying that no assistance can be derived from the analogy provided by the English law: and in fact as we have tried to show above, even the analogy does not help the petitioner. There is no doubt that such an eminent Jurist as Justice Sir Bhashyam Ayyangar referred to the concept of the corporation sole in relation to Matathipathis as well as the sthanis in Malabar. But if we may say so with the great respect this cannot be taken as a decision either that corporation sole are recognised by the common law of India or that a sthani is such a corporation sole. If there is no, warrant for importing the English law in relation to corporation sole into this country, we are unable to find any basis for holding that the Common law of India recognised such a concept.
41. The expression "corporation sole" In Section 7(4) would appear to apply to the cases of those offices which have by statute been designated as corporation sole that are endowed with perpetual succession. For instance Section 5 of the Administrator-General's Act, (III of 1913), runs thus:
"The Administrator-General shall be a corporation sole by the name of the Administrator-General of the State for which he is appointed and as such Administrator-General shall have perpetual succession and an official seal and may sue and be sued in his corporate name."
We hold that there is no basis for the contention that the Sthani is a corporation sole within Section 7(4) of the Estate Duty Act. In the first place the Sthani holds no office which entails the performance of duties and which is the prerequisite of such a corporation; secondly the concept of a corporation sole itself is foreign to the common law of India and lastly in our opinion the egression as used in Section 7(4) is intended to signify those instances where by statute an office is invested with the incident of perpetual succession and is specifically designated as a corporation sole.
42. It follows from what has been stated above (1) that the Sthani is not a holder of an office but that the Sthanam which he holds is merely a place of dignity or honour and (2) that he is not a corporation sole both by reason that he is not a holder of office and on other grounds.
43. It remains to consider the submission of learned counsel for the petitioner that the Sthani was a trustee and in that capacity was the holder of an office. For this purpose counsel relied on the decision of Channell J. in 1909-1-K. B 723 (I). The question before the learned Judge was as regards liability to estate duty. Exemption was claimed for payment of the duty on the ground, that the interest which passed on death on which duty wag sought to be levied, was an interest held by the deceased only as a holder of an office within Section 2(1) (b) of the Finance Act, 1894. The settlor had appointed a person to act as trustee and had in the deed of trust provided remuneration to the trustee in the sum of . 200 per year. The trustee appointed died and a successor was appointed who also became entitled under the Trust deed to a like remuneration. The question was whether the interest of the deceased trustee in the remuneration which had ceased on his death was property which had passed to the successor on which estate duty was payable. Channell J. upheld the exemption claimed on the ground, that the trusteeship held by the deceased was an office within Section 2(1) (b) of the Finance Act, 1894. Referring to this provision the learned Judge Said:
"It deals with property passing on death. Not infrequently a person acquires a benefit upon the death of another by reason of the cesser of the interest of the deceased person, and that class of case is specially brought within the Act. In the ordinary sense that kind of property can hardly be said to pass on death, but the legislature saw that it was of common occurrence, and so they provided for it."
After setting out the exception to Section 2(1) (b) the learned Judge said:
"What does the word "office" mean in that section? I cannot help thinking that the legislature had in their minds the case of an office in which there was an immediate successor, and did not wish to impose estate duty upon the successor as being the recipient of a benefit which came to him by reason of the death of the person who held that office. That probably led to the exception being inserted in the clause, but at the same time the words are quite general, and I do not think that I should be justified in limiting their application to the holder of an office in 'which there is an immediate successor who gets the benefit. In my opinion it cannot properly be said that a trusteeship is not an 'office' within the meaning of the section, because there is no person immediately appointed to succeed."
44. This decision was approved by Lord Normond delivering the judgment of the House of Lords in Dale v. Inland Revenue Commissioners, 1954 A. C. 11(K). The result of these decisions is that a trustee under a private trust would be the holder of an Office within Section 7(4) of the Estate Duty Act. Relying on these Mr. Nambiar urged that a Sthani was a trustee and that for this reason we should hold that he was the holder of an office entitling him to the exemption under Section 7(4) as also to that under Section 22 of the Act. We are however unable to find any basis for the contention that a Sthani is a trustee. The entire argument on this part of the case was rested solely on the limitations on the powers of alienation of a Sthani. This in our opinion is hardly germane or sufficient to constitute a Sthani as the trustee for his successors. The Hindu law is familiar with female heirs who are limited owners and with restrictions on the powers of alienations of even male owners of property. For instance, if one turns to the earlier Hindu law books and the commentaries, there are found restrictions on the powers of alienation of fathers even in regard to their self-acquired properties.
The family was conceived of as a unit to be preserved and these restrictions were designed for that purpose. Of course, in recent times, both by reason of judicial decision and by legislation these restrictions have ceased to exist. The classical instance of such restriction on powers is the woman's estate under the Hindu law and until legislation which has come into force a few months back, the restrictions on a woman's estate have been held to be designed not merely for the benefit of the reversioner but inherent in the very nature of the estate vested in a woman.
The restrictions imposed by Section 4 of the Madras Impartible Estates Act, 1904, which incorporated in statutory form, the law as laid down by the decisions of this court before that view was overruled by the Privy Council in Sartaj Kuari v. Deoraj Kuari, ILR 10 All 272 (L) and Raja Rao Venkatasurya Mahipathi Rama Krishna Rao v. Court Of Wards, ILR 23 Mad 383 (PC) (M) as regards the powers of alienation of the holders of impartible estate which was the property of a joint Hindu family, are classic instances of such restrictions. But these restrictions on the powers of alienation however do not render a holder for the time being a trustee for the successor.
Learned counsel for the petitioner has placed before us the decisions of this Court which re lated to the powers of a Sthani quoad the pro perties of the sthanam. They indicate that these powers are neither more nor less than those of a manager other than a father of a joint Hindu family under the Mitakshara law or those of a Hindu widow under the Hindu law as understood by judicial decisions. It is no doubt true that this court has in Rajah of Palghat v. Raman Until, ILR 41 Mad. 4: (AIR 1918 Mad 675) (N) dis approved the view that the holder of a Sthanam office was in the same position as a widow but for the present purposes of this decision is not off any help.
45. On the other hand the following passage from the judgment of Wallis C. J. in ILR 41 Mad. 4: (AIR 1918 Mad 675) (N) which was quoted with approval by another Bench in Prabhakaran v. Chami Mannadiar, (O) would appear completely to negative the theory of trust put forward by Mr. Nambiar.
"A sthanam according to the customary law of Malabar is descendible from one Sthanam holder to another in a peculiar line of succession and it appears to me each successive holder is in the same position as an ordinary heir succeeding on intestacy... ....The fact that the law of the land confers limited power of disposition in one case and unlimited powers in the other case can make no difference."
Even if the Sthani was a life-renter which is the almost to which the petitioner's argument would push it, he would not be a trustee for the successive life estate owner and therefore the theory of trust has no basis whatsoever. We are clearly of the opinion that the trust contemplated by Section 22 of the Act and which was held to be an office by Channell J. is an express trust of the character dealt with in the Trust Act, 1882.
46. In the circumstances, therefore we are clearly of the opinion that the holder of a Sthanam office though his powers, of alienation are restricted in regard to Sthanam properties, stands in no real fiduciary position to his successor and that he can in no sense be termed a trustee who holds an office pertaining to the Sthanam in his character of a trustee.
47. This conclusion as regards the Sthani not holding an office within Section 7(4) for the reason of his occupying the position of a trustee also disposes the contention raised as regards the exemption claimed under Section 22 of the Act, and therefore the latter does not need further consideration.
48. The conclusion stated above would suffice to dispose of contentions 1 to 4 raised by Mr. Nambiar, learned counsel for the petitioner. The other contentions which we have numbered as 5 to 7 would arise for consideration only in the event of 'a sthani' being the holder of an office. If however the true view were, as we have held that the Sthani is not the holder of an office, the explanation to Section 7(4) would merely serve to express in statutory form, what was already the law on the subject, and therefore, there could he no basis for the argument that the sthani as an office holder was being discriminated against as compared with other office holders. We therefore reject contentions 5 to 7 urged by learned counsel. In our opinion there is no ground for holding that the explanation to Section 7(4) of the Estate Duty Act is unconstitutional. The petition fails and is dismissed with costs. Counsel's fee Rs. 250.
49. W. P. No. 29 of 1956: The petitioner is the sthani of the third sthanam of Kuthiravattath Swaroopam. He succeeded to the sthanam on the death of the previous Sthani on 27-1-1955. On 2-1-1956 the petitioner received a notice dated 29-12-1955 from the Assistant Controller Estates Duly cum Income-tax Circle, Palghat informing him that he was accountable in regard to the estates duty on the properties passing on the death of his predecessor and requiring him to deliver a duly verified statement of particulars as set out in certain forms enclosed relating to the property which formed the part of the estate.
The petitioner thereupon filed this writ petition challenging the constitutional validity of the explanation to Section 7(4) on the very same grounds as had been done by the petitioner in W. P. No. 59 of 1955 which we have already dealt with. The same contentions as regards a sthani holding an office and of his being a corporation sole as well as of his being a trustee are put forward in this petition. On these and on the ground that the explanation under Section 7(4) Was constitutionally invalid, a writ of prohibition is sought directing the Controller of the Estates duty from continuing his proceedings against the petitioner for the assessment, levy and collection of the estates duty. Mr. Unnikanda Menon, learned counsel for the petitioner adopted the arguments of Mr. Nambiar, and as we have already dealt with them it suffices to say that there are no grounds for holding that the case of the petitioner is covered by the exemption in Section 7(4) or that the explanation to that sub-section is invalid.
50. The only additional point that arises in this case is by reason of the provisions of Section 5(2) of the Estate Duty Act. Section 5 which imposes the duty enacts:
"5 (1) In the case of every person dying after the commencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided of all property, settled or not settled, including agricultural land situate in the States specified in the first schedule to the Act, which passes on the death of such person, a duty, called 'estate duty' at the rates fixed in accordance with Section 35.
(2) The Central Government may, by noti fication in the Official Gazette, add the names of any other States to the First Schedule in respect whereof resolutions have been passed by the Legislatures of those States adopting this Act under Clause (1) of Article 252 of the Constitution in respect of estate duty on agricultural lands situate in those States, and on the issue of any such notification the States so added shall be deemed to be States specified in the First Sche dule within the meaning of Sub-section (1)." The first Schedule which specifies the States in which the Estate Duty is leviable on agricultural land did not include the State of Madras, and it was only by reason of a resolution passed by the Legislature of this State, adopting this Act under Clause (1) of Article 252 of the Constitution (under Section 5(2) of the Estate Duty Act) that estates duty became leviable on agricultural lands situate in this State. The resolution in this regard was passed by the State Legislature on 2-4-1955, the notification in this respect being published on 4-10-1955, in the Fort St. George Gazette dated 12-10-1955.
On the basis of this the petitioner stated in paragraph 14 of the affidavit in support of his petition, that as the death of the previous sthani took place on 27-1-1955 before the date of the resolution agricultural land which passed on his death would not in any event be subject to the duty. The learned Advocate General did not dispute this position and in fact in the counter affidavit filed on behalf of the respondent it was stated: "As the death of the previous sthani occurred before 2-4-1955 no estate duty is leviable on the agricultural lands. But the value of the agricultural lands will have to be taken for aggregation purposes."
This in our opinion correctly summarises the legal position and learned counsel for the petitioner does not dispute the correctness of the stand taken by the authorities As the liability of the agricultural lands to the charge for estate duty was never in controversy the only order that can be passed now is to dismiss the writ petition.
51. This petition also fails and is dismissed with costs. Counsel's fee Rs. 250/-