TMI Blog1961 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... section 41 when the section in express terms treats the muthawalli as a trustee, though he is not one in the technical sense under the Mahomedan law. If the argument of learned counsel for the respondent be accepted, it would make section 41 of the Act otiose so far as wakfs are concerned, for in every case of wakf the property would be held for the Almighty and not for any person. We, therefore, reject this contention and answer the question in the affirmative. Set aside the order of the High Court and hold that the respondent was rightly assessed by the Income-tax Officer at the maximum rate. Appeal allowed. - - - - - Dated:- 14-8-1961 - Judge(s) : P. B. GAJENDRAGADKAR., K. SUBBA RAO., M. HIDAYATULLAH JUDGMENT The judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the assessee. On further appeal, the Income-tax Appellate Tribunal took the view that the proprietary rights in the property in question vested in the Almighty and that the muthawalli was only to look after and administer the properties as a manager and, therefore, the proper person in whose hands the income from the properties should be assessed was the muthawalli in his status as an " individual " at the rates applicable to an individual. In that view, the appeal was allowed. At the instance of the Commissioner of Income-tax, the Appellate Tribunal referred, to the High Court of Kerala the following question for its determination : " Whether, on the facts and circumstances of the case, the first proviso to section 41 is applicable ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 ... 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 inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1915, by Umbichi and his wife dedicating their entire property, moveable and immoveable, of the total value of rupees one lakh for the objects mentioned therein. The muthawalli appointed thereunder was directed to manage the properties in such a way as " to do acts necessary for charitable purposes and to meet the maintenance expenses of their children and grandchildren and the female children that might be born to them in future, and to the male children born to the said female children ". The document proceeded to give further specific directions in the management of the properties. After payment of taxes and meeting the expenses incurred for repairs and maintenance of the properties, the balance of the income should be utilised for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirements which wvere left to the discretion of the muthawalli. While it is true that the number of beneficiaries would be ascertainable at any given point of time, it is not possible to hold, as the High Court held, that under the document the beneficiaries had equal shares in the income. The beneficiaries had no specified share in the income, but only had the right to be maintained. The construction put upon the document by the High Court cannot, therefore, be sustained on the plain wording of the document. We, therefore, hold that under the terms of the document the individual shares of the beneficiaries are indeterminate within the meaning of the first proviso to section 41(1) of the Act. If so, under the said proviso, the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priation of a particular article in such a manner as subjects it to the rules of divine property, whence the appropriator's right in it is extinguished, and it becomes a property of God, by the advantage of it resulting to his creatures." That is, though in an ideal sense the property vests in the Almighty, the property is held for the benefit of His creatures, that is, the beneficiaries. Though at one time it was considered that to constitute a valid wakf there must be dedication of property solely to the worship of God or for religious or charitable purposes, the Wakf Validating Act, 1913, discarded that view and enacted by section 3 that a Mussalman can create a wakf for the maintenance and support, wholly or partially, of his family, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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