1. The question which arises in this case is whether the Sajjadanashin of the Sasseram Khankah is assessable with income-tax under the provisions of Section 4 of Act II of 1886, in respect of such moneys as he draws from the properties appertaining to the Khankah for the purpose of his own maintenance and the maintenance of his family.
2. Section 4 of the Act prescribes: 'Subject to the exceptions mentioned in the next following section, there shall be paid, in the year beginning with the 1st day of April 1886, and in each subsequent year, to the credit of the Government of India, or as the Governor-General in Council directs, in respect of the sources of income specified in the first column of the second schedule to this Act, a tax at the rate specified in that behalf in the second column of that schedule.' The word 'income' has been defined in an earlier section, Section 3, and it means income and profits accruing and arising or received in British India, and includes in the case of a British subject within the dominions of a Prince or State in India in alliance with Her Majesty, any salary, annuity, pension, or gratuity payable to that subject by the Government or by a local authority established in the exercise of the powers of the Governor-General in Council in that behalf.' And referring to the definition of the word 'salary,' as herein mentioned, we find that it includes allowances, fees, commissions, perquisites or profits received, in lieu of or in addition to a fixed salary, in respect of an office or employment of profit, but subject to any rules which may be prescribed in this behalf, it does not include travelling, entage, horse or sumptuary allowance, or any other allowance granted to meet specific expenditure. Section 5 of the Act lays down: Nothing in Section 4 shall render liable to the tax:
(a) Any rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue or subject to a local rate assessed and collected by officials of the Government as such; or
(b) Any income derived from:
(i) Agriculture or (omitting the other portions of the section).
(c) Any income derived from property solely employed for religious or public charitable purposes and so forth.
3. In the present case the whole of the income, which the Khankah derives, is from agricultural lands; and it follows therefore, in view of Section 5, to which we have just referred, that the income derived by the Khankah could not be assessed with income tax.
4. Now, the argument on behalf of the Secretary of State is this, that the Sajjadanashin, the plaintiff in this case, when he draws any allowance or remuneration from the income of the Khankah property, he does so as an officer of the Khankah or as a Mutwalli, and what he draws mast be regarded as a 'salary' within the meaning of Section 3 of the Act.
5. This argument brings us to the question, what is the true position of the Sajjadanashin of the Sasseram Khankah. His position has been considered in at least two cases before this Court, one in the year 1886 (unreported), and the other being the case of Mohiuddin v. Sayiduddin (1893) I.L.R., 20 Cal., 810, in the year 1893. In the first mentioned case, it would appear from the judgment which was then delivered, that it was found that the whole of the endowment property had been made over to the Sajjadanashin for the time being, and remained in his uncontrolled possession for 15 or 16 years; and upon that ground the property was restored to him.
6. The learned Judge of the Court below relying upon the judgment of this Court in 1886, (unreported), and also upon certain passages in the judgment of this Court pronounced in 1893 (1893) I. L R., 20 Cal., 810, has come to the conclusion that the Sajjadanashin has 'the uncontrolled possession of the Farukhphayri properties which were regarded as devoted to religious purposes including the maintenance of the Superior and his family.' The question seems to have been raised in the case of 1893 (1893) I.L.R., 20 Cal., 810, whether the Sajjadanashin could be regarded as a Mutivalli, and as such liable to removal from office in the event of his spending upon himself more than he ought. Upon this question the learned Judges seem to have regarded the Sajjadanashin as not occupying the same position as a Mutwalli does; and in the course of the judgment, which they delivered, they expressed themselves as follows: For example, where a wakf is created and no Mutwalli is appointed, or no provision is made for his allowance, the kazi is directed in making the appointment, or in fixing the allowance, not to allow the stipend to exceed one-tenth of the rents and profits of the wakf properties. But this provision does not and cannot apply, from the nature of the institution and the position of the Sajjadanashin in relation to it, to the endowment in dispute. In considering this question, we have to bear in mind the character of the person to whom the grant was made, the nature of the institution' of which he was the founder, and the rites and ceremonies connected therewith.' And they proceeded to consider what was the true position of the Sajjadanashin of this Khankah, and they held that he occupied the position of a dervish, or a Sufi of particular sanctity settled in the locality. Referring, then, to another case in this Court viz., the case of Piran v. Abdul Karim (1891) I.L.R., 19 Cal., 203, they made the following observations: 'These dervishes professed esoteric doctrines and distinct systems of initiation. They are mostly sufis or Eastern mystics. Some of them were followers of Mian Roushan Bayezid, who flourished about the time of the Emperor Akbar, and who had founded an independent esoteric brotherhood in many respects differing from the sufis, in which the Chief or Pir occupied a peculiarly distinctive position. So long as he lived the founder himself was the Sajjadanashin, the one seated on the prayer mat; in other words, the Chief or Superior. After his death some one among his heirs indicated by him as qualified to initiate the murids into mysteries of the tarikat or holy path, succeeds him in his office of Saijadanashin. He is not only a Mutwalli but also a spiritual preceptor, and in him is supposed to continue the spiritual line (Silsilla).' There are abundant indications on this record that this is exactly the case with the Khankah of Sasseram. Shah Kabir was, as his title shows, a dervish, and from the evidence of the defendant it is clear that the doctrines supposed to be inculcated by those men are, as he calls it, of tassawuf or sufiism. We have dwelt so far on the character of the institution, in order to show how materially it is connected with the personality of the Sajjadanashin or Superior. He is an integral part of the institution and the central figure, so to speak, therein. Its existence depends on his personality. This is evident from the very terms of the grant in question. It was this view which was practically enunciated by the Government in its letter of the year 1842, and substantially reiterated by the High Court in its judgment. Again, from the nature of things, it would be impossible to spend more than a certain amount for the various religious purposes which, admittedly, ought to be performed in the Khankah, the Imambara, and the Masjid or in respect of the students who live there. There is no provision for accumulation, and in the absence of any sufficient evidence to show that the rites and ceremonies have not been properly performed, there is nothing in the Mahomedan law which warrants our saying that in taking the balance of the income for his maintenance and the maintenance of his family and relatives, the defendant committed a breach of trust such as would justify his removal.' So that it seems to be pretty clear, that the position of the Sajjadanashin of the Sasseram Khankah is materially different from that of a Mutwalli of an ordinary wakf property; and we gather from the statements made before us by the learned Vakils, that the practice is for the Sajjadanashin to prepare, year after year, a budget showing how much is to be spent for the purpose of the Khankah, and how much is to be spent for his own maintenance, and the maintenance of his family. There is no rule, so far as we can discover (nor have we been informed anything to that effect) determining how much of the income should be spent upon the Kankah, and how much upon himself. Indeed, the expenditure depends entirely upon his own discretion. But, however, that may be, it could hardly be said, having regard to the judgment of this Court to which we have just referred, that the money that the appropriates out of the Khankah income, for his own maintenance, was a 'salary' or remuneration for his services within the meaning of Section 3 of Act II of 1886.
7. Exception has been taken to the conclusion of the District Judge when he holds that the religious performances of the Khankah include the maintenance of the superior and his family. It seems to us, however, from the very nature of the thing, and from the unique position of the Sajjadanashin of this Khankah, as expressed in the judgment of this Court to which we have referred, that his maintenance is really a part of the purpose for which the Khankah was established.
8. Upon all these grounds we are of opinion that the moneys drawn by the Sajjadanashin from the Khankah properties are not assessable with income-tax.
9. We accordingly dismiss this appeal with costs.