HARRIES, C.J. - This is a reference made by the Appellate Tribunal stating a case upon the following question :-
'Whether on the facts and circumstances of this case the Appellate Tribunal were right in holding that although the shares of the two deities are not defined in the deed of endowment, their shares are defined in law, that is, they are equal, and therefore the first proviso to Section 41 is inapplicable.'
To appreciate the points involved in this case it will be necessary shortly to set out the facts. On 23rd March, 1893, one Madan Gopal Dey executed a deed of trust and by that deed he transferred certain properties to trustees for the maintenance and the worship of two deities, Thakur Harihar Prabhu and Thakurani Sachimata. It appears that Thakur Harihar Prabhu was a family idol which had been installed by the settlors predecessors, but the Thankurani had been installed by the settlor himself. This appears clear from the will made by the settlors wife shortly afterwards to which reference will be made later.
The value of the premises transferred to trustees was said to be Rs. 33,500. The trustees were directed to permit the said Thakur and Thakurani to be resident in certain premises and they were to spend the income from the property transferred on the worship of the Thakur and the Thakurani and for the performance of Dolejatra, Jhoolanjatra and Jagadhatri Pooja. The Thakur was only worshipped by the settlor during his pala whereas the Thakurani was worshipped daily and specially at certain periods.
The testators wife Sm. Shudhan Subadani Dassi made a will on 20th April, 1893, and in that will she dedicated all her immovable property to and for the worship of Thakur Harihar Prabhu belonging to and established by her husbands family and to Thakurani Sachimata established by her husband and for certain other charitable purposes. In the will the charitable purposes are set out and after the payment the executors and trustees of the will are to expend the remainder of the rents and profits on the worship of these two idols. It is to be observed that in the will the executors were given an absolute discretion in applying the property for certain objects, but they are given no discretion as to how the remainder of the income is to be applied : that is to be applied to the maintenance and the worship of the two deities.
It is quite clear that the respective shares of these two deities are not stated in either the deed of settlement made Madan Gopal Dey to the will made by his wife and the question arose whether these deities took an equal share in the income or not.
For the assessment year 1942-43 the Income-tax Officer held that the maximum rate should be applied to the income of the two deities as in his opinion the individual shares of the deities were indeterminate and unknown and, therefore, they were not entitled to claim the benefit given by sub-section (1) of Section 41 of the Indian Income-tax Act. This decision, however, was reversed by the Appellate Assistant Commissioner and his view was upheld by the Appellate Tribunal - both the latter holding that in law the deities were given this income in equal shares.
The Department being dissatisfied called upon the Appellate Tribunal to state a case and they stated a case giving rise to the question which I have indicated. The short point which has to be decide is whether or not the assessees were entitled to the benefit given by Section 41 of the Indian Income-tax Act.
Section 41 is in these terms :-
'(1) In the case of income, profits or gains chargeable under this Act which the Courts of Wards, the Administrators-General, the Official Trustees or any receiver or manager (including any person whatever his designation who in fact manages property on behalf of another) appointed by or under any order of a Court or any trustee or trustees appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise (including the trustee or trustees under any wakf deed which is valid under the Mussalman Wakf Validating Act, 1913) are entitled to receive on behalf of any person, the tax shall be levied upon and recoverable from such Court of Wards, Administrator-General, Official Trustee, receiver or manager or trustee or trustees, in the like manner and to the same amount as it would be leviable upon and recoverable from the person on whose behalf such income, profits or gains are receivable and all the provisions of this Act shall apply accordingly.
Provided that where any such income, profits or gains or any part thereof are not specifically receivable on behalf of any one person, or where the individual shares of the persons on whose behalf they are receivable are indeterminate or unknown, the tax shall be levied and recoverable at the maximum rate.'
By a subsequent amendment the following was added to the proviso but has no application to this case as the amendment was made after the assessment order :-
'But, where such persons have no other personal income chargeable under the Act and none of them is an artificial juridical person, as if such income, profits or gains or such part thereof were the total income of an association of persons.'
The contention of the Income-tax authorities was that these deities were not entitled to the benefits conferred by sub-section (1) of Section 41 by reason of the proviso to which I have made reference. It was urged that the shares of these Thakurs are indeterminate or unknown and therefore the case would not fall within the provisions of sub-section (1) of Section 41 of the Indian Income-tax Act. Dr. Gupta on behalf of the Income-tax authorities however had to concede that if the shares were known and certain, then the case would fall within Section 41. The only question which this Court has to decide is whether these two deities were given definite and certain shares in this income or property.
As I have said earlier, no shares are specified, but the income is to be applied both under the deed of settlement and the will for the maintenance and the worship of the Thakur and the Thakurani.
Dr. Pal on behalf of the assessee contends that as there are no words determining the shares, a Court is bound to hold that the two deities were given this income in equal shares. His contention is that a gift to two Hindus, A and B, without determining the shares is a gift to A and B in equal shares. On the other hand, Dr. Gupta on behalf of the Income-tax Department, has contended that such a gift would be a gift to A and B in such a gift would be a gift to A and B jointly, or a gift to A and B in such shares as the trustees in their discretion would allow each of the deities.
I think it is now clear beyond all doubt that in Hindu law a gift to A and B without in words determining the exact shares must be regarded as a gift to A and B as tenants in common or in equal shares. In Bahu Rani v. Rajendra Baksh Singh, their Lordships of the Privy Council held that the principle of joint tenancy is unknown in Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara, and they held further that whether a grant to persons who constitute a joint family was made to them severally or as a joint family depends upon the intention of the donor as expressed in the grant. There was no presumption that the latter was intended. The facts of the case were that the Government made three grants of villages to two brothers, who constituted a joint Hindu family, for their maintenance. The grants respectively were expressed to be (1) 'to you and your heirs', (2) to the two brothers, 'their heirs executors administrators and assigns in full hereditary and transferable proprietary right', (3) to the two brothers 'and their heirs successors and assigns.' The Board held that the grants conferred an estate of inheritance on each of the brothers.
At page 101 Sir John Wallis who delivered the judgment of the Board quoted Lord Watson who observed as follows in the case of Jogeswar Narain Deo v. Ram Chandra Dutt at page 43 when discussing an earlier Indian decision :-
'There are two substantial reasons why it ought not to be followed as an authority. In the first place, it appears to their Lordships that the learned Judges of the High Court of Madras were not justified in importing into the construction of a Hindu will an extremely technical rule of English conveyancing. The principle of joint tenancy appears to be unknown to Hindu law, except in the case of coparcenary between the members of an undivided family. In the second place, the learned Judges misapprehended the law of England, because it is clear according to that law, that a conceyance or an agreement to convey his or her personal interest by one of the joint tenants, operates as severance.'
Sir John Wallis added :-
'In their Lordships opinion this is a clear ruling that the principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law which under that law passes by survivorship.'
It appears to me that it is quite impossible to contend now that the deities in this case shares jointly in this income. Dr. Gupta however relied upon an earlier Privy Council case, namely, the case of Narpat Singh v. Mahomed Ali Hussain Khan. In that case the lands of three brothers having been confiscated the Government afterwards assigned revenue paying lands for the benefit, in certain proportions, of the minor son of the eldest brother, also of the widow, minor son, and daughter of the youngest brother (both these brothers being then deceased) and the second brother, who survived, was put into possession of a proportionate part of the property. Their Lordships held that the widow of the youngest brother, on the deaths of his son and daughter, became by survivorship sole owner of the estate assigned for their and her benefit; so that an alienation of part if made by her could not be set aside at the instance of the second brother, who failed to show, on the above state of things that the estate was heritable property of the son, as whose uncle and heir he claimed. Dr. Gupta laid great stress on an observation of Sir Barnes Peacock which appears at page 5 :-
'The Government assented to this proposal of the Chief Commissioner; and their Lordships are of opinion that it was the intention of the Government that the land assessed at Rs. 2,500 should be assigned for the benefit of Jagrajs widow and his family as joint tenants, and not as tenants in common or to the son separately. The Judicial Commissioner, in his judgment, appears to their Lordships to have put the case very clearly. He says : As to the position of Mussammat Shahzad Kunwar; The grant was made to the family of Jagraj Singh jointly. As the Government in no way defined the rights assigned to each grantee, the three persons who composed the family must be held to have been joint owners; and on the death of the two children their mother as survivor, became sole owner'.
It is quite clear in this case that their Lordships did not treat the grant as a grant to three individuals jointly but as a grant to three individuals who formed the family and therefore the case is not in conflict with the later decisions of their Lordships of the Privy Council.
The matter has been considered by the Courts in India and it has been invariably held that a gift by a Hindu to two persons without specification of shares is a gift to those two persons as tenants in common or in equal shares. Such, for example, was the case of Gopi v. Mussamat Jaldhara. In that case a Hindu died leaving a will whereby he bequeathed the whole of his property held that the estate taken by the legatees was a tenancy in common and not a joint tenancy. That case expressly followed the case of Jogeswar Narain Deo v. Ram Chandra Dutt. In that case the gift was to a mother and son for their maintenance and the Board held that the mother and son took the property in equal shares and it was in that case that Lord Watson made the observation which I have quoted earlier in this judgment.
Mulla in his book Principles of Hindu Law, 10th Ed., at page 482 sums the matter up in these words :
'Where a gift or bequest is made to two or more persons who are not members of a coparcenary without specification of shares, it has been held by the Judicial Committee that they take as tenants in common, and not as joint tenants.'
He then quotes the observation of Lord Watson to which I have already referred.
It appears to me to be established beyond all doubt that a gift by a Hindu to two Hindus without specification of shares is a gift to the two persons in equal shares. A deity is a juristic person in Hindu law and I can see no reason why the same rule should not apply to a gift to two Hindu deities without a specification of shares. They are two legal persons who may be made donees and it appears to me that if the law intends that two human beings to whom property has been given without specification of shares should take in equal shares, then I see no reason why the same assumption should not be made in the case of two juristic persons. Indeed the High Court of Patna has had to consider this very question and it decided that a gift of a certain income to a number of deities without a specification of their shares amounts to a gift to such deities in equal shares. That was the case of Sri Sri Jyotishwari Kalimata v. Commissioner of Income-tax, Bihar & Orissa. There a trust was created by two deeds bearing the same date in favour of certain family deities which were shown in three groups for the purpose of performing the daily worship of the deities and other usual observances. By one of these deeds one set of properties was dedicated in favour of one group, and another set of properties in favour of the second group. By the second deed a third set of properties was dedicated in favour of the third group. Under the deeds the trustee was given full discretion as to the manner and extent in which he should spend the whole or part of the income of a particular year. The balance of the income remaining after meeting the expenses was to be held by the trustee in trust for the use and benefit of the deities and should form a part of the courpus of the trust properties respectively dedicated to the deities. The Court held that the deities were the owners of the properties, that though their shares were not defined in the deed they were well defined in law and equal, and that therefore the income of the trust property in the hands of the trustee was not liable to be assessed at the maximum rate under the first proviso to Section 41(1) but should be assessed at the rate applicable for the individual income of each of the deities in each group.
This case is exactly in point and cannot be distinguished from the present case. At page 713 Manohar Lall, A. C.J., observed :-
'We have pointed out above that the trust is in favour of named deities and though their shares are not defined by the trust deed the law attributes to them equal shares and makes them tenants in common and not joint tenants. The case reported in Jogeswar Narain Deo v. Ram Chandra Dutt is a clear authority for this proposition and in Gopi v. Mussamat Jaldhara the same view was taken following the Privy Council case reported in Jogeswar Narain Deo v. Ram Chandra Dutt.
We therefore hold that each idol should be assessed on that deitys income and the tax should be based upon and recovered from the trustee. The measure of the trustees liability is the liability of the beneficiary (Section 41) as discussed above. There is no uncertainty as to the shares of the idols. We therefore consider that there should be a separate assessment of the trustee as regards the income of each of the deities of which he is the trustee.'
Dr. Gupta on behalf of the taxing authorities has urged that we should not follow this case. But it appears to me to lay down good law, having regard to the earlier decisions of their Lordships of the Privy Council, to which I have made reference.
Dr. Gupta, however, urged that in the present case there were indications that the settlor and the testatrix could never have intended these deities to take in equal shares, because the scheme of worship of the deities was different. As I have said the Thakur was worshipped by the settlor during the settlors pala, whereas the Thakurani was worshipped daily. That may well be so. But we cannot inter from that that the settlor or the testatrix desired that some greater or lesser proportion of the income should go to the Thakur or the Thakurani. Dr. Gupta has urged that we should inter that the settlor and testatrix must have intended the matter to be left entirely to the discretion of the trustees of the settlement or the executors and trustees of the will. When a settlor or a testator leaves matters to the discretion of trustees or executors the settlor or testator usually says so. But here nothing is left to the discretion of the trustees or executors. All that the settlor or testatrix did was to give this income to the two deities and from that I think the only possible inference a Court can make is that the settlor and the testatrix intended that the two deities should be given an equal share in the properties. No distinction is drawn between the two deities and the form of worship is merely mentioned in a description as it were of the deities. There is nothing to suggest that the settlor executrix held one deity in greater veneration than the other.
Dr. Gupta however suggested that although a joint tenancy was not known to Hindu law it certainly was recognised in the Indian Succession Act and he laid stress particularly on Sections 106 and 107 of that Act. But it appears to me that these sections give him no assistance whatsoever.
Section 106 provides :-
'If a legacy is given to two persons jointly and one of them dies before the testator, the other legatee takes the whole'.
Dr. Gupta suggests that this section expressly permits a joint tenancy. Section 106 however really deals with laps of legacy and follows naturally after Section 105. Section 105 provides :-
'(1) If the legatee does not survive the testator the legacy cannot take effect, but shall laps and form part of the residue of the testators property, unless it appears by the will that the testator intended that it should go to some other person.
(2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator.'
Section 106 merely provides for what is to happen if one of two persons who were jointly named as legatees dies before the testator. The section in no way creates a joint tenancy.
Dr. Gupta then referred to Section 107 of the Act which provides :-
'If a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testators property.'
Again, this section merely deals with the lapsing of a legacy in particular circumstances. From none of these sections can it be inferred that it was the intention of the legislature to create a joint tenancy. In any event it is quite clear that the Act cannot possibly create interests which were unknown to Hindu law before the Act came into force. This is quite clear from Section 57 and Schedule III of the Act. Section 57 provides :-
'The provisions of this Part which are set out in Schedule III shall, subjects to the restrictions and modifications specified therein, apply to all wills and codicils made by any Hindu.............'
Schedule III sets out a large number of sections including Sections 105, 106, and 107 of the Act and paragraph 2 of the Schedule provides :-
'Nothing therein contained (i.e., in the section referred to) shall authorise any Hindu, Buddhist, Sikh or Jaina to create in property any interest which he could not have created before the 1st day of September, 1870.'
It follows therefore that even if the Succession Act created joint tenancies such would not be created by a Hindu will. However it appears to me that these sections relied upon are of no assistance to Dr. Gupta and in any event they cannot affect the position that a joint tenancy is a conception unknown to Hindu law and is an interest which cannot be created by a Hindu either by a grant inter vivos or by a will.
For the reasons which I have given it is I think clear that the grant and the devise to the two deities without specification of shares gave to them the properties in equal shares. That being so, the shares of the deities were certain and known and the proviso to Section 41 of the Indian Income-tax Act could have no application to this case. The Tribunal in my view arrived at a correct conclusion in this case and that being so, the question submitted must be answered in the affirmative.
The assessee is entitled to the costs of this reference. Certified for two counsel.
CHATTERJEE, J. - I agree with my Lord the Chief Justice.
In my view where there is a gift or bequest to two deities they take not as joint tenants but as tenants in common. In the case of Jogeswar Narain Deo v. Ram Chandra Dutt the Judicial Committee made it clear that the principle of joint tenancy is unknown to Hindu law except in the case of a coparcenary between the members of an undivided family. In Bahu Rani v. Rajendra Baksh Singh the grant was made to two undivided brothers, yet it was held that they took as tenants in common. The Judicial Committee has pointed out that it was wrong to import into the construction of a Hindu will an extremely technical rule of English conveyancing.
Even where a gift or bequest is made to two or more persons who are members of Hindu coparcenary they take as tenants in common and not as joint tenants or coparceners, unless a contrary intention appears in the grant or the will.
In my opinion in a case like the present there is no scope for a contrary intention to be expressed. In a case like this where a grant is made to two deities, they are made to judicial persons who are incapable of forming a Hindu coparcenary and therefore they must take as tenants in common.
Dr. Gupta has stressed that Hindu deities cannot alienate debutter property and cannot deal with the same as ordinary owners of property. But it is to be remembered that it is only in an ideal sense that a property can be said to belong to an idol and the possession and management of it must, in the nature of things, be entrusted to a manager or shebait. As a general rule of Hindu law any property given for the maintanance of religious worship and of charities connected with the same is inalienable. Only in exceptional cases, for legal necessity or for the benefit or preservation of the property, the shebait can alienate the same. But in my view that does not affect the nature of ownership of the property or the share to which deities are entitled.
In my view it is only right and proper that the two deities should be entitled equally to the income derived from the properties bequeathed or settled under the will and the deed of settlement.
To attempt to make any other apportionment or to define some other shares as between the two deities would be to make out a new settlement or a new will and that may be quite contrary to the intention of the settlor or testatrix.
In the absence of any indication of intention to the contrary it is only just and proper that there should be equal division of the income of the properties concerned as between the two deities.
I agree with the order proposed to be made by my Lord the Chief Justice.
Reference answered in the affirmative.