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TMI Blog1956 (3) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... t at the maximum rate . One Dinanath Ghose executed an Arpan-nama on the 3rd of June, 1917, by which he dedicated to the two deities, one of which is Radha Shyam Jew Jugal Murti and the other a Narayan Sila called Sri Sri Sridhar Jew, properties mentioned in schedules 'Ka' and 'Kha' of the document. He did not specify the shares which each of the deities was to get in these properties. If the gift was a joint gift to the two deities with the share of each indeterminate, the income receivable by each of the deities would be indeterminate and under the proviso to section 41 of the Indian Income- tax Act tax was leviable and recoverable at the maximum rate at the relevant date. If, however, the dedication amounted to two separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 I.T.R. 326 . In Pulin Behari Dey's case [1951] 20 I.T.R. 314 , Harries, C.J., with whom Chatterjee, J., agreed, relying mainly on the pronouncement of the Judicial Committee of the Privy Council in Bahu Rani v. Rajendra Bakhsh Singh [1933] 60 I.A. 95 reiterating what they have stated earlier in Jogeswar Narain Deo v. Ram Chandra Dutt [1896] 23 I.A. 37 that the principle of joint tenancy as known to English law was unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by Mitakshara, held that a joint tenancy cannot be created by a Hindu either by a grant inter vivos or by a will. If this decision that a Hindu cannot create a joint tenancy at all by a grant inter vivos or by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It seems to me unnecessary in the present case to decide whether or not the statements of the law by the Privy Council in Jogeswar Narain Deo's case [1896] 23 I.A. 37 and repeated in more definite terms in Bahu Rani v. Rajendra Bakhsh Singh [1933] 60 I.A. 95 can be reconciled with the earlier statements of law as regards the existence of other joint tenancies in addition to the joint property of the undivided Hindu family nor whether the statements should be held inapplicable to the debuttor estates. It may be mentioned, however, that even if the statement of law 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 Mitakshara be taken t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proposition of the law as stated in Pulin Behari Dey's case [1951] 20 I.T.R. 314 that a Hindu cannot by a grant create a joint estate should not be accepted as correct, I do not think it can be doubted for a moment that the presumption is in favour of a tenancy in common and only the clearest indication of a contrary intention will justify that a joint estate was created. Mention may be made in this connection of the case of Administrator-General of Madras v. Money [1892] I.L.R. 15 Mad. 448 , where it was said at page 469 that the general result of the authorities seems to be that the tendency of the Court is to lean against joint tenancy. If this was a correct statement of the law, as in my opinion it was, at that time, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the houses of the deities, keep the Thakurbati clean and pay regularly such rent, taxes and cess etc. as may be payable on account of the Debutter properties. Then comes clause 5a on which much reliance has been placed on behalf of the applicant. It is in these words: If there be any surplus of the income of the Debutter properties after expenditure in accordance with the provisions of this Arpan-nama has been made, the Sebait shall be entitled to increase in his discretion the scales of expenditure laid down in Schedule 'Ga' and he shall similarly be entitled to reduce the said scales, in case there is a deficit. The copy of the deed of endowment which is printed in the paper book does not contain the schedules. The origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumption that the intention was to create a tenancy in common. It is contended, however, that clause 5a of the Arpan-nama gives clear indication that the Sebait was left free to alter the expenditure. If on a correct interpretation of clause 5a it appeared to us that by this the Sebait was given the right to alter the proportion of expenditure between the two deities and was free to spend less for one deity and more for another deity as he pleased, the argument would require serious consideration. It appears to me, however, that clause 5a cannot be properly interpreted in that manner. The presumption being that the intention of a Hindu is to create equal interest in favour of the two deities, to whom the dedication is made, it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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