Das Gupta, J.
1. This is a reference made by the Appellate Tribunal at the instance of the Income-tax authorities for the opinion of this Court on a question which is formulated in these words; Whether in the facts and circumstances of the case the Tribunal were right in holding that under the endowment the two' deities took equally and that their shares being thus defined there was no scope for an assessment at the maximum rate. One Dinanath Ghose executed an Arpan-nama on 3-6-1917 by which he dedicated to the two deities, one of which is Radha Shyara Jew Jugal Murti and the other a Narayan Sila called Sri Sri Sridhar Jew, properties mentioned in Schs. 'Ka' and 'Kha' of the document. He did not specify the shares which each of the deities was to get in these properties. If the gift was a joint gift to the two deities with the share of each indeterminate, the income receivable by each of the deities would be indeterminate and under the proviso to Section 41, Income-tax Act tax was leviable and recoverable at the maximum rate at the relevant date. If, however, the dedication amounted to two separate gifts to the two deities, the necessary conclusion from the absence of specification of shares of each would be that each of the two deities would have an equal share in the properties so that the income receivable would be determinate and the proviso would not apply. The question is whether by the dedication a joint estate was created in favour of the two deities or two separate estates were created. The question is covered by the authority of this Court's decision in -- 'Commr. of Income-tax v. Pulin Behary De', : 20ITR314(Cal) (A). In that case. there was also dedication to two deities Thakur Harihar and Thakurani Sachimata without specifiction of shares and earmarking of any sum for the religious expenses in each case. The Tribunal held that the individual shares of the beneficiaries were determinate and the assessment should have been made on each separate and respective income. A case was stated on the question whether the Appellate Tribunal was right in holding that although the shares of the two deities were not defined in the deed of endowment, their shares were defined in law, that is, they were equal and, therefore, the first proviso to Section 41 is inapplicable. In this Court Harries C. J. and Chatterjee J., held that the Tribunal had arrived at a correct conclusion and answered the question in the affirmative. This decision was followed by this Court in the subsequent case of -- 'Commr. of Income-tax, W. B. v. Sm. Ashalata Debi', reported in the same volume of ITR at p. 326 (B). In -- 'Pulin Behari De's case (A), Harries C. J., with whom Chatterjee J., agreed, relying mainly on the pronouncement of the Judicial Committee in the Privy Council in -- 'Bahu Rani v. Rajendra Bakhsh Singh , reiterating what they have stated earlier in 'Jogeswar Narain Deo v. Ram Chund Dutt', 23 Ind App 37 (D), that the principle of joint tenancy as known to English law was unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by Mitakshara held that a joint tenancy cannot be created by a Hindu either by a grant inter vivos or by a will.
2. If this decision that a Hindu cannot create a joint tenancy at all by a grant inter vivos or by a will be a correct proposition of law, the necessary conclusion must be that in the present case also the Tribunal has by holding that a tenancy in common came into existence so that the shares of the two deities were equal and determinate came to a correct conclusion. Mr. Meyer, however, tried to convince us that the proposition of law as laid down in 'Pulin Behari De's case (A)', that a joint tenancy cannot be created by a Hindu either by a grant inter vivos or by a will is not a correct proposition of law. He has first contended that the pronouncement of the Judicial Committee that the principle of joint tenancy was unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by Mitakshara was itself irreconcilable with numerous statements of the law by the Privy Council itself that the interests of two or more daughters succeeding as heirs to their father, two or more sons, grandsons or great grandsons succeeding, as heirs to the self-acquired property of a paternal ancestor, two or more grandsons of a daughter who are living as members of a joint family succeeding as heirs to the maternal grandfather and two or more widows succeeding as heirs to the estate of their husband were in the nature of joint tenancies. He further contended that in any case the pronouncement of the Privy Council was not and could not be intended to apply to the creation of debuttor estates where altogether separate considerations arise.
3. It seems to me unnecessary in the presentcase to decide whether or not the statements ofthe law by the Privy Council in -- 'Jogeswar NarainDeo's case (D)', and repeated in more definiteterms in ', canbe reconciled with the earlier statements of lawas regards the existence of other joint tenanciesin addition to the joint property of the undividedHindu family nor whether the statements shouldbe held inapplicable to the debuttor estates. Itmay be mentioned, however, that even if the statement of law that the principle of joint tenancy isunknown to Hindu law except in the case of thejoint property of an undivided Hindu family governed by Mitkashara be taken to be fully consistent with the earlier statement of the law and alsoapplicable to debuttor estates it would not necessarily follow that such an estate could not becreated by a Hindu by a grant. It is importantto mention in this - connection that in -- 'Yethirajulu Naidu v. Mukunthu Naidu', ILR 26 Mad 363 (E), where Sir Arnold White C. J., and Subrahmania Ayyar J., had to consider the question whether by bequest of a house in favour of the sonsthe sons took it as tenants in common or jointtenants, Subrahmania Ayyar J., observed at p. 373of the Reports:
'The decision of the Judicial Committee in -- 'Jogeswar Narain Deo v. Ram Chand Dutt', (D), points out that the principle of joint tenancy as obtaining in England is quite foreign to the Hindu Law and that, when property is gifted to more than one, in the absence of anything in the grant to the contrary the presumption is that the donees take as tenants in common.'
It seems to me that much can be said in favour of the view taken in the above case that it is not right to base on the pronouncement of the Privy Council mentioned above that no Hindu can create a joint estate in favour of two persons, but that such an interest being ordinarily unknown to Hindu law a grant by a Hindu should be presumed not to have created a joint estate but that presumption can be rebutted by a clear indication of an intention of the grantor to create a joint estate. Assuming that we agree with Mr, Meyer that the proposition of the law as stated in --'Pulin Behari De's case (A)', that a Hindu cannot by a grant create a joint estate should not be accepted as correct, I do not think it can be doubted for a moment that the presumption is in favour of a tenancy in common and only the clearest indication of a contrary intention will justify that a joint estate was created. Mention may be made in this connection of the case of -- 'Administrator-General of Madras v. Money' ILR 15 Mad 448 (P), where it was said at p. 469 that 'the general result of the authorities seems to be that the tendency of the Court is to lean against joint tenancy'. If this was a correct statement of the law, as in my opinion it was, at that time, the consequence of the pronouncement of the Judicial Committee that the idea of a joint tenancy was unknown to Hindu law would certainly be that there would be a very strong presumption in the case of a grant by a Hindu that he did not intend to create a joint tenancy and that it is only on the clearest indication of an intention to create a joint tenancy that the above presumption can be rebutted.
4. Turning now to the Deed of Endowment we find that in the first clause the executant says that
'for the worship etc., of the above-mentioned deities installed by me, I dedicate to them, in their entirety, my self acquired properties described in Schs. 'Ka' and 'Kha' below.'
In Clause 4 he says;
'The Sebait, by appointing qualified Brahmins, shall arrange for the daily worship of the said deities and for such worship and'for festivals like Rasjatra, Doljatra and Jhulanjatra etc., he shall make expenditure in accordance with the provisions of Sch. 'Ga' hereto. He shall be entitled to purchase from time to time, as and when necessary, utensils and other requisites for the worship of the said deities, articles such as mattresses, bedding, lights etc., for the Thakurbati and other things as may be required for the Thakurbati or the deities. But he shall not be entitled to spend on any account in excess of the income of the estate.'
In Clause S he states:
'Out of the income of the properties mentioned in this Arpannama, the Sebait shall execute proper repairs of the houses of the deities, keep the Thakurbati clean and pay regularly such rent, taxes and cess etc., as may be payable on account of the Debutter properties.'
Then comes Clause 5a on which much reliance has been placed on behalf of the applicant. It is in these words:
'If there be any surplus of the income of the Debutter properties after expenditure in accordance with the provisions of this Arpan-nama has been made, the Sebait shall be entitled to increase in his discretion the scales of expenditure laid down in Sch. 'CA' and he shall similarly be entitled to reduce the said scales, in case there is a deficit.'
The copy of the Deed of Endowment which is printed in the Paper Book does not contain the schedules. The original document was, however, produced before us and we have examined with the assistance of the learned Advocates these schedules. Schedules 'Ka' and 'Kha', as already indicated, describe the properties. Schedule 'Ga' which mentions the scale of expenditure provides different sums of money for the festivals mentioned in para. 1 thereof, the total of these sums being Rs. 470/- and fixes for the daily Deb Seba specified amounts of rice, flour, ghee, milk and also sets out the monthly expenses on account of oil, salt, pulse, spices, vegetables, sweets and daily lighting, salary of one Brahmin priest, salary of one Brahmin cook, salary of one servant and salary of one maid servant. Except that it is not clear to us what the birth anniversary of Iswar Shyamsundar Jew refers to, it is abundantly clear that all the festivals referred to in para. 1 and the items of expenditure mentioned in para. 2 are common to two deities. The fact that the shares for each deity are not mentioned herein gives no reason to think that the executant had left it to the Sebait to distribute the amounts in the way he pleased. It seems much more reasonable to think that the devotion of the executant of the Arpan-nama was the same for both the deities installed by him and that his intention was that the Sebait would spend equal sums for the festivals for these two deities. The scale of expenditure as mentioned in the schedule is therefore of no assistance to rebut the presumption that the intention was to create a tenancy in common.
5. It is contended, however, that Clause 5a of the Arpan-nama gives clear indication that the Sebait was left free to alter the expenditure. If on a correct interpretation of Clause 5a it appeared to us that by this the Sebait was given the right to alter the proportion of expenditure between the two deities and was free to spend less for one deity and more for another deity as he pleased, the argument would require serious consideration. It appears to me, however, that Clause 5a cannot be properly interpreted in that manner. The presumption being that the intention of a Hindu is to create equal interest in favour of the two deities, to whom the dedications are made, it would be proper to interpret the provisions of Clause 5a to mean that if there be any surplus of the income of the Debutter properties in the share of either deity, then the Sebait shall be entitled to increase in his discretion the scales of expenditure for that deity and similarly if there is a deficit in the income of the properties in the name of either deity, he shall be entitled to reduce the expenditure for that deity. Interpreted thus Clause 5a cannot be said to indicate any intention to create a joint estate in favour of the two deities. In -- Panchanan Das v. Commr. of Income-tax, W. B.', : 20ITR57(Cal) (G), there was a provision in the Arpan-nama that the Sebait for the time being shall be able to make modifications and alterations of the amounts specified in the document for expenditure on different items according to his discretion and according to the times. In that case Harries C. J. and Banerjee J., held that as the Sebait was entitled to vary the amounts to be spent for the two deities, the shares of the deities could not possibly be regarded as determinate. That decision is of no assistance in the present case as here, as I have pointed out above, Clause 5a of the Arpannama does not give the Sebait a right to alter the amounts as between the two deities.
6. I have, therefore, come to the conclusion that the decision of the Income-tax Tribunal that the two deities took equally and that their shares being thus defined there was no scope for assessment at the maximum rate was correct and that the answer to the question stated should be in the affirmative.
7. The assessee is entitled to the costs of this Reference.
8. I agree.