Sabyasachi Mukharji, J.
1. In the instant reference the following questions have been referred to us for answer :
' 1. Whether, on the facts and in the circumstances of the case, and on a correct interpretation of the instrument dated 6th June, 1964, the Tribunal was correct in holding that the Hindu deity is a juristic person capable of entering into partnership and as such there was a valid partnership which was entitled to registration ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that it was the shebaits who have become the partners in the firm on behalf of the deities '
2. In order to appreciate the questions it is necessary to state that the questions arise out of a reference made under Section 256(1) of the I.T. Act, 1961, for the assessment year 1965-66. The assessee is a firm consisting of seven partners which was constituted on the strength of a partnership deed executed on 6th of June, 1964. It had filed an application for registration in Form No. 11 of the I.T. Rules. It also satisfied all other necessary conditions for a valid partnership. But the ITO was not satisfied with regard to the validity of the partnership because out of seven partners two were Hindu deities--Netai Gourji (by shebait Lingaraj Paikara) and Broja Ballav Jew (by shebait Lingaraj Paikara). According to the ITO, Hindu deities were ' perpetually infant ' and they could not enter into partnership. He, accordingly, refused registration to the assessee-firm. In order to appreciate this order, it would be necessary to refer to the relevant clauses of the partnership deed, which is dated 6th June, 1964. This deed is between seven contracting parties, of which two, as we have mentioned before, were Hindu deities, namely, Sri Sri Netai Gourji represented by Shebait Lingaraj Paikara of the Sixth Part and Sri Sri Broja Ballav Jew represented by Shebait Lingaraj Paikara of the seventh part. The partnership deed set out the history and, thereafter, continued to state that the parties had been continuing and were carrying on the business of iron foundry and contractors and order suppliers under the firm name of ' Tapang Light Foundry & Co. 'in co-partnership together as from 4th April, 1964, after the expulsion of one Raghunath Chotteray and then further states that the head office should be at Belur, Howrah. The partnership deed, inter alia, provided as follows :
' 4. That the capital of the firm shall be the amounts standing to the credit of each partner in the capital account of the books of the firm as on the 4th day of April, 1964.
5. That the net profit and loss of the business shall be divisible amongst the partners in the proportion as under :
1. Lingaraj Faikara First Party
2. Parties here to of the Second, Third,Fourth and Fifth Parts
SatishCh. Bhattacharya 6% each
3. Parties of the Sixth and Seventh Parts
6%each . . .
9. That if it becomes expedient for the purpose of the business of the said Lingaraj Paikara, the party hereto of the First Part shall be at liberty to borrow money for the purpose of the business with or without security of the assets of the partnership and for such borrowing the whole of the partnership shall be bound and liable....
11. That the assets of the partnership business shall be the assets of the firm and no partner shall have any right title or interest in whole or in part thereof save and except as is provided under the Indian Partnership Act.
18. That the share of the partners of the partnership business cannot be attached but provisions as regards retirement will follow if any attachment is made on the share of any partner due to his individual debt.
19. That all partners shall faithfully look to the interest of the business of the partnership and if any overt act is done by any of the partners to the detriment of the partnership business, he shall be ousted or expelled from the partnership and the provision as regards retirement shall apply in that case.
20. That no partner shall transfer by sale or by mortgage or in any other way charge his share of the firm or any part thereof except to his legal heirs.'
3. The assessee felt aggrieved by the assessment order and took the matter up to the AAC who, after considering the factual as well as legal positions, came to the conclusion that the firm was entitled to registration. He held that the idol is an infant, and not sui juris and, according to him, when Hindu deities were capable of holding extensive properties they could also become partners in firms. He accordingly allowed the appeal of the assessee.
4. The Revenue being aggrieved by the said order went up in further appeal before the Tribunal. The Tribunal discussed the rival contentions of the parties and came to the conclusion that a Hindu deity was a juristic entity and could certainly become a partner. The Tribunal accordingly upheld the order of the AAC. Upon the findings of the Tribunal, two questions mentioned hereinbefore have been referred to us.
5. In order to answer the questions, it is necessary to consider the question posed before us, whether a Hindu deity cannot enter into partnership. It was contended that in view of the limitations and the circumstances under which a shebait was obliged, according to the well-settled principles and decisions, to hold the properties of deities on behalf of the deities, it was impossible to comprehend that such properties could be the subject-matter of obligations of partnership and, as such, it was submitted that the deities were not capable of entering into any kind of partnerships. It was also contended that shebaits as a general rule, except for legal necessities of the deities, were incapable of alienating the properties of the deities. Before we deal with these submissions and proceed to answer the question, it is necessary to bear in mind the provisions of Section 2(23) of the I.T. Act, 1961, which provides the definition of a ' firm' and ' partnership' and states that they have the same meaning assigned to them by the Indian Partnership Act, 1932. It is made clear that the expression ' partners ' should also include any person, being a minor who has been admitted to the benefits of partnership. Section 4 of the Partnership Act states that partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into a partnership with one another are called individually partners and collectively a firm and the name under which their business was carried on called a firm name. Our attention was drawn to certain observations in the decision in the case of CIT v. Pulin Chandra Daw : 63ITR179(Cal) , where the assessee was a shebait of a debutter endowment consisting of immovable properties. The entire income from the properties was to be spent for the daily and periodical worship of certain deities, repairs to the properties, etc., and any surplus income was to be utilised in purchasing other properties to be made debutter. On the question whether the shebait could be assessed on the income from properties under Section 9 of the Indian I.T. Act, 1922, it was held that, though the assessee as shebait might have the custody of the property and the right to manage it, he was not the owner of the property and was not liable to be assessed in respect of it under Section 9. Under Hindu law the property vested in the idol which was a juristic person. In order to appreciate this decision, it has to be understood that Section 9 provided that the assessments for house property stipulated that the income from the property was liable to be assessed in the hands of the owner. So, the question was, who the owner was. Our attention was drawn to the observations at page 185 of the decision where the court had referred to Mukherjee's Treatise on the Hindu law of Religious and Charitable Trusts. The court observed that there could be no dispute that in case of a gift to a deity no acceptance was necessary to complete the gift as in the case of secular gifts. Reference was also made to page 186 of the decision where the court summed up the position of the Hindu law and to the legal character in respect of shebaitship. After discussing the above position, the Calcutta High Court summed up as follows (p. 188); ' In the light of the above exposition of the law, the position of a person in charge of Shiv Krishna debutter estate appears to be as follows : He is a mere custodian of the property. It is his duty to carry on all the functions of deb seva puja, etc., the periodical rites and ceremonies in accordance with the scheme laid down in the deed and to preserve the debutter property. Though not liable to render any account to anybody, he is to spend the income of the property towards deb seva work and repairs, etc., only, and invest the surplus in purchasing property to be made debutter. He has only a limited right of residence in some of the debutter properties. So far as the properties covered by the arpannamah are concerned, the founders renounced all their right, title and interest in them. The properties were dedicated for ishwar deb seva, etc., they were dedicated in favour of the deities, the periodical pujas, festivals enumerated and to be performed in the manner indicated on stated occasions. The daily seva to be performed is of Sri Sri Ishwar Sridhar Jiew as also of the deities, Sri Sri Ishwar Radharaman Jiew and the other deities, mentioned in the deed. The vesting of the property, therefore, in my opinion, was in the deities and they were the owners of the property. Although as shebait or as trustee, the assessee, Pulin Chandra Daw, may have the custody of the deities as also of the properties, the right to manage the same, the right to let out portions thereof and sue and be sued in respect of the property, he was not the owner. He may have the limited right of ownership in the property in that he can do all acts of management and can even alienate portions of the debutter property in case of legal necessity but the property never vested in him so as to make him the full owner and, whether or not he could be assessed under Section 41 of the Act, no assessment can be made on him as regards the income from the property under Section 9. Further, the deities, so far as the ownership of the property is concerned, are not to be treated as an association of persons under Sub-section (3) of Section 9. Our attention was drawn by the learned advocate for the Revenue to certain observations made in the case of Executors of the Estate of J.K. Dubash v. Commissioner of Income-tax,  19 ITR 182 (SC), at p. 189, reading ' The Income-tax Act directs its attention primarily to the person who receives the income, profits or gains rather than to the ownership or enjoyment thereof. The assessee is defined in Section 2(2) as the person by whom income-tax is payable and by Section 10 the tax is payable by an assessee who carries on the business, profession or vocation. The statute thus fastens on the person who carries on business, etc., the liability to pay the tax on the profits earned by him regardless of their destination or enjoyment. It is also worthy of note that in several instances persons who have no proprietary or other right in the income charged to tax are made liable to pay the tax for no other reason than the convenience of assessment and collection. Such instances are to be found in Section 26(2), proviso, Section 18(7), Section 23A(3), Section 25A and Section 42(1). As observed by Lord Cave in Williams v. Singer,  1 AC 65 (HL), the fact is that, if the Income-tax Acts are examined, it will be found that the person charged with tax is neither the trustee nor the beneficiary as such, but the person in actual receipt and control of the income, which it is sought to reach.' These observations were made in the context of quite a different set of circumstances and they do not mean and were never intended to mean that proceedings could be launched under Section 9 on a person who was not the owner of the property but could be assessed to income from the property because he was in receipt thereof. If Section 9 is to be resorted to, assessment can only be made in the hands of the owner, although the payment of the tax may be made through the hands of somebody else. Our attention was also drawn to a judgment of a single judge of this court in Sri Sri Sridhar fiew v. Income-tax Officer : 50ITR480(Cal) , which relates to this very debutter estate. There, an application was made under Article 226 of the Constitution by the deities, Sri Sri Sridhar Jiew and Sri Sri Radharaman Jiew, in the hands of Pulin Chandra Daw as shebait. There, because of the decision of the Income-tax Appellate Tribunal that Pulin Chandra Daw had no beneficial interest in the property and was not liable to taxation as owner of the properties, notice under Section 34 of the Act and addressed to the petitioners-idols, represented by their shebait, was served upon the shebait. It was contended on behalf of the idols that they could not sign any income-tax returns and they could not be described as assessee for the purpose of the Income-tax Act. The learned judge observed that, even if the contention about the disability to sign the declaration under an income-tax return was to be upheld, the admitted income of the idols from the debutter estate did not become immune from assessment because of the special nature of income-tax proceedings. '
6. Then, the learned judge had referred to the various decisions to which our attention was drawn, where it was emphasised, as a general rule of Hindu law, any property given for, the maintenance of religious worship and of charities connected with the same was inalienable. Only in exceptional cases, for legal necessity or for the benefit or preservation of the property, the shebait could alienate the same. In the light of the above principle, it was held that the shebait was only the manager of the deity and he could not be assessed as the owner of the property.
7. Reference was also made to the observations of this court in the case of Sri Sri Sridhar Jiew v. ITO : 63ITR192(Cal) , where a Division Bench of this court held that a Hindu deity was a juristic person capable of having property and acted through the shebait, who held the property, realised the income and looked after the estate of the deity and did all acts in connection therewith. A Hindu deity was, therefore, included in the word ' individual' in Section 3 of the Indian I.T. Act, 1922, and was liable to be assessed to income-tax as an individual under the said Act. We may incidentally mention that there has been a slight alteration in the terminology and now the expression is ' person ' and not ' individual'. It must be emphasised that it is only in the ideal sense that a property belongs to an idol but the management of the property in entirety is entrusted with the manager or shebait with certain limitations or restrictions. In that case, it was also emphasised by the Division Bench of this court that the word ' trustee ' in Section 41(1) of the said Act had been used in the larger sense and would include the shebait of a Hindu deity, and the view that the Indian I.T. Act, 1922, did not provide a machinery for the assessment of, or realising the tax from, a Hindu deity was not correct. It was, according to the Division Bench, competent for a shebait to sign a form of the return on behalf of the deity. Such signature should be taken to be the signature of the deity, who could hold property and receive income but who could not be equated with an ordinary human being. In expressly including a juristic person within the net of taxation and in amending the form of return, the 1961 Act had done nothing but had made clear what was always the law.
8. Reference was also made to the decision of the Supreme Court in the case of Official Trustee of West Bengal v. CIT : 93ITR348(SC) , where the Supreme Court held that the Hindu deity was an ' individual' within the meaning of the word in Section 3 of the Indian I.T. Act, 1922, and could be treated as a unit of assessment. As a Hindu deity was a juristic person and could hold property and be in receipt of income and could also sue and be sued in a court of law, there was no reason why its income should also be held to be outside the ambit of taxation, if it could only be brought within it without straining the language of the statutory provision. It would naturally be taxed through a shebait who was in possession and management of its property.
9. Our attention was drawn to Mulla's Hindu Law, 14th edition, where it was emphasised that as a general rule of Hindu law the property given for the maintenance of religious worship and of charities connected with it was inalienable. It was competent, however, for the shebait or mohunt in charge of the property in his capacity of shebait or mohunt and as manager of the property to incur debts and borrow money on a mortgage of the property for the purpose of keeping up the religious worship, and for the benefit and preservation of the property. The power, however, to incur debts must be measured by an existing necessity for incurring the expenditure. It was emphasised further that the power of a shebait or a Mohunt to alienate debutter property was analogous to that of a manager for an infant heir as denned by the Judicial Committee in Hunooman persaud Panday v. Mussumat Babooee Munraj Koonweree,  6 MIA 393.
10. Lastly, our attention was drawn to the decision of this court in the case of Hoosen Kasam Dado. v. CIT : 5ITR182(Cal) , where a Division Bench of this court held, as early as in 1937, that under the Mahomedan law, the moment a wakf was created, all rights of the property passed out of the wakf and vested in the Almighty, and, as a non-personal being such as the Almighty was, it could not enter into a partnership with material persons, a partnership which purports to exist with a wakf represented by mutawalli as a partner was not a partnership in law, and could not be registered as a firm under Section 26A of the Indian I.T. Act, 1922. Further, a man could not at one and the same time, be a partner in his individual capacity and a partner in his representative capacity. We may incidentally point out that here the shebait has been a partner in both capacities. Under Section 26A of the Indian I.T. Act, 1922, and Rules 3 and 4 of the Rules framed under the Act, an ITO was only empowered to register the partnership which was specified in the instrument of partnership which had been put forward. Therefore, where a mutawalli of a wakf or infants were partners in the firm which was sought to be registered, the partnership could not be treated as one between the remaining partners and registered as such, under Section 26A, nor could a wakf or infant partners be treated as partners in a loose sense in such cases and the partnership be considered as one that could be registered under Section 26A. Where an application was made for registration of a firm, the ITO had power to determine whether the partnership which was alleged to exist really existed and to refuse registration, if it did not exist. Here, in the said decision, our attention was drawn to the observations of Mr. Justice Costello at pages 196 and 200.
11. We have examined the partnership deed in this case. We find that the partnership assets have been made liable, in view of the provisions of clauses which we have mentioned hereinbefore, to alienation not only confined to the case of legal necessity but also for ordinary losses of partnership. Thus, the partnership assets would also include the income derived from the assets of the deity and which have been brought into the capital of the firm. In that view of the matter, it appears that such a deed, which permitted alienation or which contemplated alienation of assets of the deity not only confined to legal necessity but also for other purposes would be bad and illegal, as is well settled by the principles of Hindu law. It was contended, on the other hand, that the deities were juristic persons and if they were juristic persons they could not do what other persons could do. Unfortunately, in contemplating the deity as a juristic person, the Hindu law has been inhibited by certain amount of limitations and these limitations are that the deity being a juristic person, in the ideal sense, must operate through a manager or a shebait who was also inhibited with regard to the power of alienation. Therefore, what an ordinary person can do, such a juristic person like a deity cannot do ; in our legal imagination, therefore, that what an ordinary man can do, God cannot do --a self-evident absurdity. But so it has been held and so it must be.
12. It appears, in our comprehension, we have made God not as an ordinary man. God is much more handicapped than ordinary persons are. If that is the position in this case as we have now found that the partnership deed permitted alienations on other grounds apart from legal necessity, this partnership was not legal and was not entitled to be registered. In that view of the matter, it is not necessary for us to rest our decision on the principles enunciated by the decision last mentioned, namely, the decision in the case of Hoosen Kasam Dada v. CIT : 5ITR182(Cal) , which proceeded on the basis that Almighty could not enter into a partnership with material persons. Therefore, we need not go into the question whether under any circumstance there can be a partnership with the deities, in the facts and circumstances of the case. In that view of the matter we will answer question No. 1 by saying that though the Hindu deity is a juristic person but in view of the clauses of this partnership the partnership deed was not entitled to be registered. In that view of the fact, question No. 1 is answered in the negative and in favour of the Revenue in the facts and circumstances of the case. The question No. 2 is also answered in the negative and in favour of the Revenue.
13. In view of the points involved in this case, parties will pay and bear their own costs.
Suhas Chandra Sen, J.