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TMI Blog1949 (9) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... ly idol which had been installed by the settlor's predecessors, but the Thakurani had been installed by the settlor himself. This appears clear from the will made by the settlor's wife shortly afterwards to which reference will be made later. The value of the premises transferred to trustees was said to be ₹ 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 testator's 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 husband's 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viable 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers. 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 [1896] L.R. 23 I.A. 37 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 conveyance 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 Mit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [1912] I.L.R. 33 All. 41. In that case a Hindu died leaving a will whereby he bequeathed the whole of his property to his two married daughters without specification of shares. It was 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 [1896] L.R. 23 I.A. 37. 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 commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach 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 [1896] L.R. 23 I.A. 37 is a clear authority for this proposition and in Gopi v. Mussamat Jaldhara [1912] I.L.R. 33 All. 41 the same view was taken following the Privy Council case reported in Jogeswar Narain Deo v. Ram Chandra Dutt [1896] L.R. 23 I.A. 37. We therefore hold that each idol should be assessed on that deity's income and the tax should be based upon and recovered from the trustee. The measure of the trustee's 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 autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot take effect, but shall lapse and form part of the residue of the testator's 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 testator's 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nglish 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 juridical 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 maintenance 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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