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Commissioner of Income-tax Vs. Official Trustee of West Bengal (for the Estate of Smt. Chitra Dassi) - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberIncome-tax Reference No. 339 of 1975
Judge
Reported in(1981)23CTR(Cal)276,[1983]139ITR1(Cal)
ActsIndian Income Tax Act, 1922 - Section 9(3)
AppellantCommissioner of Income-tax
RespondentOfficial Trustee of West Bengal (for the Estate of Smt. Chitra Dassi)
Appellant AdvocateB.L. Pal and ;P. Majmudar, Advs.
Respondent AdvocateP.K. Pal and ;R.N. Datta, Advs.
Cases ReferredRam Gopal v. Nand Lal
Excerpt:
- .....in sinduriaputty hoozoori bagan in the city of calcutta. the headnote of the ekrarnama states : ' sree sree hurry my protector ' smt. chitra dassi made an ekrar (agreement) for debutter and gift executed by her in respect of the lands of sinduriaputty hoozoori bagan. it was stated in the ekrarnama that it was her wish to display the image of sree sree ishwar and for that purpose she dedicated as debutter a piece of land of the area of 3 bighas 10 cottahs (now numbered as 79 and 80, chitpur road) for religious purposes. she enjoined upon her five sons to build upon the said debutter land two mahals (apartments) to be styled as ' sudderbatty ' for jatra and mohutshub of sree sree ishwar and sree sree ishwari thakoorbatty. the deed recited that none of the five sons of smt. chitra dassi.....
Judgment:

Sudhindra Mohan Guha, J.

1. This reference relates to the assessment years 1952-53, 1953-54, 1955-56, 1956-57, 1957-58, 1958-59 and 1959-60, for which the relevant previous years ended on 31st March of each year.

2. One Smt. Chitra Dassi had five sons. She was the owner of certain lands situated in Sinduriaputty Hoozoori Bagan in the city of Calcutta. The headnote of the ekrarnama states : ' Sree Sree Hurry my protector ' Smt. Chitra Dassi made an ekrar (agreement) for debutter and gift executed by her in respect of the lands of Sinduriaputty Hoozoori Bagan. It was stated in the ekrarnama that it was her wish to display the image of Sree Sree Ishwar and for that purpose she dedicated as debutter a piece of land of the area of 3 bighas 10 cottahs (now numbered as 79 and 80, Chitpur Road) for religious purposes. She enjoined upon her five sons to build upon the said debutter land two mahals (apartments) to be styled as ' Sudderbatty ' for Jatra and Mohutshub of Sree Sree Ishwar and Sree Sree Ishwari Thakoorbatty. The deed recited that none of the five sons of Smt. Chitra Dassi and their heirs would have any rights and interests of their own and further it would not be the subject of partition between them inter se. The said Smt. Chitra Dassi permitted her sons after her death to remain in possession of the said premises, being engaged in the performance of seva and worship to Sree Sree Ishwar. By the document known as postscript, the settlor dedicated one more cottah of land and added it to the debutter created by the earlier deed of 1820, In the postscript, it was laid down that only one building, namely, one large Sudderbatty, would be established. Between the dates of these two deeds, Smt. Chitra Dassi installed Sree Sree Radhagobinda Jew in the house known as Bhaghut Shaha and LallooMullick Wallah Batty. On the 8th December, 1842, Smt. Chitra Dassi executed her last will and testament whereby she appointed her four sons, Cossynath Mullick, Lokenath Mullick, Hurronath Mullick and Taranath Mullick, as executors. On the 29th October, 1855, Smt. Chitra Dassi died. The sons continued to act as shebaits and to be in possession of the debut-ter estate, but troubles arose subsequently in 1876 with the management of the property, i.e., 21 years from the date of death of Smt. Chitra Dassi.

3. On or about 4th December, 1878, a preliminary decree was passed wherein it was declared that the property was dedicated to Sree Sree Radhagobind Jew and directions were given as regards the fialas. The Calcutta High Court appointed a receiver. From time to time directions were given to the official receiver. On 21st July, 1884, the final decree was passed. After that the official trustee was appointed and he had to file income-tax returns; he was assessed in respect of the income of the debutter estate and in the assessment orders it was described as follows):

' The official trustee of Bengal for private religious trust of Chitra Dassi (sole beneficiary Sree Sree Radhagobind Jew).'

4. In the proceedings for the assessment of tax for the years under references, the assessments had been made on the official trustee of West Bengal for private religious trust of Chitra Dassi, sole beneficiary Sree Sree Radhagobinda Jew. The status of the assessee had been held as that of an individual. The ITO rejected the contention of the assessee in respect of exemption under Section 4(3)(i) of the Indian I.T. Act, 1922, and completed the assessments up to the years mentioned with reference to interest on securities, property income from other sources and added the dwelling house income under Section 9(3) of the Act upon the trust, the beneficiary being Sree Sree Radhagobinda Jew.

5. In the appeal before the AAC, it was contended, amongst others, that the dedications were made to two deities, and that they should be assessed separately. This argument did not find favour with the AAC. The appeal was accordingly dismissed.

6. The assessee came in further appeal before the Tribunal. The learned counsel for the assessee contended that the assesses had been able to secure evidence in the form of solemn declaration by a Sanskrit scholar and pandit of eminence, Dr. Gouri Nath Sastri, and stated that the deities were two, Sree Sree Radha Jew and Sree Sree Gobind Jew. He also produced photostat copies of the temple of Sree Sree Gobind Jew and Sree Sree Radha Jew, where there were two deities. He referred to the statement of the priest, Sri Tarapada Chakrabarti, and the system of bhog nibedans of two deities.

7. The departmental representative, on the other hand, argued that even assuming that there were two deities, the shares being indeterminate, theviews taken by the I.T. authorities were correct. On hearing the arguments of both the parties and on consideration of the entire evidence, the Tribunal held that beneficiaries of the trust are Sree Sree Radha Jew and Sree Sree Gobind Jew, commonly styled as Sree Sree Radha Gobind Jt:w, deities holding properties as tenants-in-common, and the status of the beneficiaries, Sree Sree Radha Gobind Jew, is that of an association of persons, so far as income from securities and income from dividends are concerned. It was also held that having regard to the provisions of Section 9(3) of the Act, the income from property is to be included separately in the income of the two deities, Sree Sree Radha Jew and Sree Sree Gobind Jew. The Tribunal discussed the matter from historical, socio-religious and philosophical standpoints vis-a-vis the provisions of the Indian I.T, Act, 1922.

8. On the above facts, two questions were referred to this court. It may be mentioned here that question No. 2, during the arguments, on consent of both the parties, was reframed. We shall answer the refrained question No. 2. Thus, the questions are as follows :

' 1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that on the basis of the documents executed by Sm. Chitra Dassi and on the basis of the evidence available, the dedication was made in favour of two deities, Sree Sree Radha and Sree Sree Gobind

2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that having regard to the provisions of section 9(3) of the Indian I.T. Act, 1922, income from property is to be included separately in the total income of the two deities, Sree Sree Radha and Sree Sree Gobind Jew '

9. Thus, the whole controversy between the parties rests on the question whether Radha Gobind Jew was a deity or these were two deities, viz., Radha Jew and Gobind Jew.

10. Mr. Balai Pal, the learned advocate for the revenue, argues that the documents executed by the dedicator should be read as a whole and there is no scope for interpretation of the same with the aid of extrinsic evidence or circumstances. He places before us the ekrarnama dated 13th of Jaistha, 1227 B.S., executed by Smt. Chitra Dassi which finds place at p. 59 of the paper book, the postscript executed by the said Smt. Chitra Dassi on 17th Falgoon, 1228 B.S. at p. 64 of the paper book and the will executed by her on 24th Agrahayan, 1249 B.S., corresponding to 8th December, 1842, which again finds place at p. 66 of the paper book. For the purpose of construing these documents, Mr. Balai Pal refers to ' The Construction of Deeds and Statutes ' by Sir Charles E. Odgers (4th Edn.), pp. 28 to 32. It is stated therein that words in the deeds and statutes are to be taken intheir literal meaning. It is not necessarily etymological or dictionary sense which is to be applied, by the sense in which the words are used by the majority of people--popular sense---which prima facie would he the meaning intended by the parties at the time of execution of the. instrument.

11. As to the methods by which the meanings of the words used is to be discovered, it is stated that it should be always borne in mind that, in the first place, it connotes that meaning. The clues to that meaning--the evidence of intention--are to be sought for in the document itself and not outside it.

12. For the purpose of proving what the literal meaning of the words used is, according to the sense in which the expression ' literal meaning ' is used as explained above, extrinsic evidence is admissible, not to construe the deed, but to translate for the court the terms used by the parties,

13. In order to answer the question as to when an intrinsic evidence is admissible to translate a note, the author says that it is to be noticed that intrinsic evidence here does not mean the evidence of the writer's intention to enable the court to interpret the thing used. Thus, going through the document and deeds executed by Smt. Chitra Dassi, it is contended by Mr. Pal that it is evident from those documents themselves that it was the intention of the dedicator, Smt. Chitra Dassi, to install a deity, viz., Radha Gobind Jew. He takes exception to the evidence adduced by Dr. Gouri NattvShastri by the Tribunal in interpreting these documents. In support of his arguments, he placed before us a decision of the Privy Council in the case of Rajendra Prasad Bose v. Gopal Prasad Sen . It is laid down by the Privy Council that while construing the document, the court is entitled to put itself into the testator's arm-chair. The law on this point was fully enunciated at p. 244 of the report, which may be quoted here :

' In England, as also in India, even where a document is executed in vernacular, the fundamental rule of construction is the same. The duty of the court is to ascertain the intention from the words used in the document. The court is entitled and bound to bear in mind surrounding circumstances, but the court does that only to ascertain the real intention of the executant from the words used by him. The surroundings of an Indian, his manners, his outlook proceeding from different religion and social customs, are often different from those of an Englishman. Ordinarily, documents executed by an Indian in his own language, particularly without any professional aid, are often expressed in loose and inaccurate language. All these considerations have to be borne in mind, and sometimes by reason of these aforesaid circumstances a more extended or restricted meaning may have to be given to particular words than their exact literal meaning permits, provided always that the context justifiesit. In short, the court is entitled to ' put itself into the testator's arm-chair'.'

14. This case was followed by the Supreme Court in the case of Ram Gopal v. Nand Lal, : [1950]1SCR766 .

15. Next, Mr. Pal refers to the decision in the case wherein these very documents executed by Smt. Chitra Dassi were taken into consideration by this court in the case of Official Trustee of West Bengal v. CIT : [1968]67ITR218(Cal) . The facts in that case were stated as follows: One Smt. Chitra Dassi had five sons. She was the owner of certain lands situated at Sinduriaputty Hoozoori Bagan in the city of Calcutta. By ekrarnama dated 25th May, 1820, (1st Baisak, 1213 B.S.) the said Smt. Chitra Dassi made a gift of a piece of land of the area of 3 bighas and 10 cottahs (now numbered as 79-80 Chitpur Road) for religious purposes and she enjoined upon her five sons to build, at their own cost, two houses to be styled Sudderbatty for Jatra Mohutshub of Sree Ishwar and Sri Ishwari Thakar-batty for the constant sheva. By a second document described as the ' postscript', the settlor dedicated one more cottah of land and added it to the debutter estate created by the earlier deed of 1820. On the 8th December, 1842, the said Smt. Chitra Dassi executed her last will and testament whereby she appointed her four sons as the executors. In the will she referred to the fact of having already made the Sudderbatty and the land on which it stood, debutter. She made further debutter in respect of Bhagut Shaha and Lalloo Mullick property and directed the executors to perform the daily service of Sree Radha Gobind Jew from the rents and profits of the property. In this case, at p. 236 of the report, it was contended that the Hindu concept of God is that of an infinite being; It was also pointed out that in the ekrarnama and the ' postscript ' mention was made of ' Sree Sree Eshwar ' and not Radha Gobind Jew. It was contended that it was clear that the settlor conceived of dedication to the infinite Godhead which later on took shape in her mind in the form of an idol of Sree Radha Gobind Jew. It was also contended that it was permissible for Hindus to see the infinite in a finite form. In other words, a Hindu recognised divinity in a finite form which ultimately progressed into and dissolved itself in the infinite. There is, therefore, no conflict in conceiving the infinite in a finite form and to attribute to the infinite a capacity to enjoy mundane properties.

16. Mr, Pronab Pal, learned advocate for the assessee, points out that in the earlier case reported in Official Trustee of West Bengal v. CIT : [1968]67ITR218(Cal) , the question was not as to the existence of a single deity or two in one and he also points out that in that case the question referred to the High Court by the Tribunal was : ' Is the Thakur Radha Gobind Jew liable to assessment under the Indian I.T. Act ' But he points out atthe same time that, in that case, it was stated in the statement of case that under the ekrarnama dated 25th May, 1822, the settlor enjoined upon her five sons to build, at their own cost, two houses to be styled ' Suddarbatty for Jatra Mohutshub of Sree Sree Ishwar and Sree Ishwari Thakur Batty for the constant sheva '. It is also pointed out by her that it had always been the intention of Smt. Chitra Dassi to install not a single deity but two deities, viz., Radha Jew and Gobind Jew. But Mr. Balai Pal contends with reference to the ekrarnama and the ' postscript ' that mention is made of Sree Sree Ishwar and not ' Radha Gobind Jew '.

17. Mr. Pronab Pal contends that the Revenue, in the facts and circumstances of this case, has no scope to reagitate the fact as to whether there was the existence of one deity only or two deities, viz., Radha Jew and Gobind Jew. According to him, it was a clear finding of the Tribunal that two deities, Sree Sree Radha Jew and Sree Sree Gobind Jew, were in existence and the two idols were being served pujas and offerings separately. We do not propose to uphold the contention of Mr. Pronab Pal that such a finding is to be based on the interpretation of the deeds and documents executed by the settlor, Smt. Chitra Dassi.

18. It should not be overlooked that these three documents were executed by an illiterate and unsophisticated religious lady as far back as 1227 B.S. 1228 B.S. and 1249 B.S. In this context, the words ' Radha Gobind Jew ' are to be interpreted, as pointed out by Sir Charles Odgers, that it is not necessarily the etymological term of the dictionary sense which is to be applied for interpreting the sense in which the words are used by the majority of people. The Privy Council also in the case of Rajendra Prasad Bose , points out that ordinarily documents executed by an Indian in his own language, particularly without any professional aid, are expressed in loose and inaccurate language and sometimes a more extended or restricted meaning may have to be given to particular words than what their exact literal meaning permits, provided always that the context justifies it. In such circumstances, the court is entitled to put itself into the testator's arm-chair. The evidence of Dr. Gouri Nath Shastri may not be taken as aid for the interpretation of the documents but his opinion on Hindu Shastras and religion may certainly be taken into consideration. He points out that according to the concept of Hindu religion and shastras Lord Sree Krishna is the incarnation of Sree Sree Gobind Jew which is the supreme almighty and Sree Sree Radha is the Joyous (Ahlaadini) incarnation of Sree Sree Gobind Jew. Sree Sree Gobind Jew and Sree Sree Radha are two different deities having separate existence represented by independent idols and owned independent pujas and worships. Each has separate invocation, incantation, meditation, offerings and hymns peculiar to each. Each of them is propitiated and worshipped separately by theHindus and never as one deity. The photostat copy of the images has been made a part of the paper book. It would appear that the two images are placed apart on the pedestal. It would be apparent that the two deities are not identical but separate.

19. The priest, Sri Tara Pada Chakraborti, states that Sri Gobind Jew and Sri Hadha, the two Hindu deities, consecrated and installed by Chitra Dassi, were being worshipped by him separately according to the edicts and canons of the Hindu Shastras. The argument of Mr. Pal, that there may be two idols but the deity was, in fact, a single one, does not hold good in the facts and circumstances found by the Tribunal.

20. In the aforesaid facts and circumstances, the Tribunal appears to be sufficiently justified in finding that Sri Gobind Jew and Sri Radha Jew are two different deities having separate existence.

21. In this view of the matter, we answer question No. 1 in the affirmative and in favour of the assessee. As question No. 1 is answered in the affirmative, question No. 2 automatically follows in favour of the assessee. This conclusion is corroborated by the decision of this court in the case of CIT v. Bhim Chandra Ghosh : [1956]30ITR46(Cal) .

22. There will, however, be no order as to costs.

Sabyasachi Mukharji, J.

23. I agree.


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