TMI Blog1937 (1) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... he May 10, 1934, a fresh application was filed which is also said to have been made under Section 2(14) of the Act read with Section 26-A of the Act. That application was for registration of the firm in the accordance of with the terms of the new partnership deed, that is to say, the deed of the March 25, 1934. The case of the assessee at the time of the application was that the constitution of the firm at all material times was governed by this instrument of the March 25, 1934. That instrument of partnership purports to constitute a partnership as between twenty different parties and of these parties Nos. 17, 18, 19 and 20 are minors and are represented by Hossen Kasam Dada who is, in fact, their father. According to clause 4 of the instrument of the March 25, 1934, the partnership was to be deemed to come into existence, or at any rate, into force, as from the July 10, 1933, on which date new account books for the businesses were to be opened and the partnership was to remain in the first instance for one year terminating on or about the July 9, 1934, but could be extended by mutual consent of all the parties. The application for registration was dealt with by the Income Tax Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss ? Is the investment wholly invalid ? can it be challenged collaterally by any person other than the beneficiaries ? (f) Whether on a proper construction of the instrument of partnership, the partners Nos. 7 and 9 can correctly be regarded as inanimate objects, viz., the Wakf or the funds in question or as non-personal beings like the Almighty, or whether the said partners Nos. 7 and 9 are really represented by their respective managers. (g) Whether in law there can be partnership in which one or more partners are the Managers of the Mohammedan Wakfs ? (h) Whether the delivery of possession in the present case to the several donees evidenced and accompanied by necessary entries in the account books together with the subsequent conduct of the donor and the donee is not sufficient in law to complete and validate the gift ? (i) Is physical delivery of possession absolutely necessary for the validity of a gift under the Mohammedan law even where the donee is either the wife or an infant son of the donor living under his guardianship. (j) Whether under correct interpretation of the deed of gift of January 16, 1930 the donees became actual owners of the properties gifte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be invested in business or any commercial activities of a risky nature, while the Assistant Commissioner supported this view on the further argument that under the Mahommedan Law when a wakf has been legally constituted the owner of the property is the Supreme Being and the Supreme Being cannot be partner in a firm . The assessees were not content in having the matter put before the Court in such a precise form as that in which the Income Tax Officer thought fit to state it. They were of opinion that there were other matters as set forth in the original questions of law which ought to have received consideration by this Court. Accordingly, they moved for a Rule calling on the Commissioner of Income Tax to show cause why he should not refer to this Court the whole of the questions of law which I have already read and which are set forth at page 24 of the paper book. This matter was heard by the Hon'ble the Chief Justice and the Hon'ble Mr. Justice panckridge and they directed that a Rule should issue calling upon the Commissioner of Income Tax to show cause why he should not state the case for the opinion of this Court on the questions Nos. (b) to (j) which are set f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted by the learned Advocates that the restrictions imposed upon the Trustees decided on not appear to have been intended to bind the founder himself. I am, however, unable to accept his view. Mere absence of the restrictions cannot mean that the founder did not intend to bind himself with them. Moreover he has clearly forbidden the Trustees to invest the fund in business or to enter into partnership with others or to decided on any business in the name of the fund. In view of this I think there should be clear direction to the contrary, so far as the founder himself if concerned, in order to empower himself to do what he has forbidden the Trustees to do. In this particular case we find nothing of the sort. The only direction given, so far as the founder himself is concerned, is that he will try to invest in immovable properties. From this it cannot be inferred that the directions empower him to enter into partnership. It seems quite clear, therefore, from the decision given by the Income Tax Officer that the he was of opinion that the parties Nos. 7 and 9, as they were the managers of the two wakf firms, could not lawfully be partners in order to constitute partnership and it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be no partnership in law. With that statement of law I entirely agree. It has been conceded by Mr. Gupta on behalf of the assessees that these two mutwallis of the two Wakfs who are stated to be partners Nos. 7 and 9 cannot really be partners. But says Mr. Gupta that in spite of that they ought to be treated as though they were persons having some kind of share in the profits of the concern. Therefore, although in law they are not, strictly speaking, partners, they were sufficiently in the position of partners as to justify the Income Tax Officer in granting registration of the firm as applied for by them. Mr. Gupta has also conceded that the minors, that is to say the per sons who are said to be parties Nos. 17,18,19 and 20 cannot, properly speaking, be partners by reason of the provisions of Section 30 of the Indian Partnership Act. But again, says Mr. Gupta, although, strictly speaking, these persons could not be partners in this concern nevertheless the provision of Section 30 entail that they should be treated as if they were infant partners and according to what has been laid down in the Income Tax Manual was no bar to the registration of the firm after excluding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument shows, as in the case of Jewan Das Shahu v. Shah Kuburddin (2 Moo.I.A. 390) that a dedication to pious or charitable purposes is meant, the right of the wakif is extinguished and the ownership is transferred to the Almighty. The donor ma name any meritorious subject as the recipient of the benefit. The manager of the Wakf is the Mutwalli, the governor, superintendent or curator. Then at page 315 the learned Judge says Under the Mahommedan Law the moment the wakf is created all tights of property pass out of the wakif, and vest in God Almighty. The curator, whether called Mutwalli or Sajjadanishim or by any other name, is merely a manager. He is certainly not a trustee as understood in the English system. That judgment was referred to an approved of by LORD SUMNER in the case of Abdur Rahim v. Marayan Das Aurora (50 I.A. 84 at page 90) where after quoting the passage from Mr. AMEER ALIs judgment to which I have just referred, His Lordship said : The principle of the respondents contention, accordingly, appears to their Lordships to be fallacious. The property in respect of which a wakf if created by the settlor, is not merely charged with such several trusts as he may dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from the - day of April up to 31st March, 19 . It seems to me that the Income Tax Officer is only empowered to register a partnership or rather the partnership which has been put forward or nothing else. Mr. Gupta says that even if the two wakfs have to be eliminated or even if the infant partners or quasi partners have to be eliminated, nevertheless there remain other partners and they constitute a partnership which can and should be registered. The short answer to that is that if you take away two or more or even one of the persons constituting the constituents of the partnership then what is left is not the partnership which the assessee seeks to register but another partnership altogether, if indeed there is in existence any partnership at all. It is quite clear that it was open to the Income Tax Officer of look into the matter and if any authority is needed for that, one may refer to the case of In Re Bisseswar Lal Brijlal, (I.L.R. Cal. 1336 at page 1338) where the late Chief Justice of this Court sitting with Mr. Justice BUCKLAND said It is said that the rules contain no provision for an investigation into the reality of such document, that is to say, relating to ..... 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