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TMI Blog1963 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... this contention. Strangely enough no reported case seems to have directly decided the points raised and asked on this reference, although there are many incidental observations on these and cognate points, all of which are not easily reconcilable. Before noticing the varieties of these decisions and authorities and trying to plumb the depth of the complexity of the problem it will be desirable to have first the facts which give rise to this question. 4. The Tribunal consolidated 5 appeals in this connection us they all raise the identical issue. They are in respect of the assessment of three years 1952-53, 1953-54, and 1954-55. Testator Ramkristo Naskar left a Will dated the 17th May, 1899 by which inter alia he left properties as debuttar to two deities. Shri Shri Iswar Kuvereswar Mahadev and Shri Shri Ananda-moyee Kalimata in the land adjoining his residential house at 74/75, Beliaghata Road. The testator appointed his two adopted sons, Hem Chandra Naskar and Jogendra Nath Naskar and their descendants as the shebaits. The relevant actual words used in the Will on this point are: .....the lands of the temples and the adjoining lands of my residence, garden and tenanted properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Assistant Commissioner, therefore, applied a Division Bench decision of this Court in Shri Shri Iswar Gopal Jew v. C. J. T. West Bengal and Saila Behari Singh v. C. I. T. West Bengal : and came to the conclusion that the assessments on the assessees as trustees could not be sustained and therefore allowed their appeal. Then the Income-tax Officer initiated the proceedings for 1952-53 and 1953-54 against Hem and Jogendra and also for the year 1954-55 with the observation: "Since the amendment of Section 41 of the I. T. Act the shebaits of endowment and de-buttar properties could be held responsible as Manager. Accordingly the assessment is being completed on the beneficiaries in the status of an individual, through the shebaits." He also rejected the claim for exemption under proviso to Section 4(3)(a) of the Income-tax Act. There was an appeal from that decision by the assessee to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner came to the conclusion that the deity was a juridical entity capable of owning property although the deity acts through human agency and the deity was liable to be taxed. He also came to the conclusion that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not taken into account in the computation of income under the proviso of Section 4(3)(2)." 9. The main questions arising on this reference, therefore, are clear from the foregoing account of facts. Broadly speaking, three large questions are involved. One is if the Hindu deity is at all assessable under the Income-tax Act as a unit of assessment; the second is that in any event when the debutter is an absolute debutter and the dedication to the deity is complete and outright, it follows as a matter of interpretation of law that such a disposition is always to be regarded as one for public religious purpose and, therefore, exempt under Section 4(3)(i) of the Income-tax Act; the third question is whether Section 41 of the Income-tax Act can at all be applied to shebaits of a Hindu deity. 10. As the question asked in this reference specifically raises the applicability of Section 41 of the Income-tax Act, it will be appropriate to deal first with the import and construction of Section 41 of the Income-tax Act and its applicability to the shebaits of a Hindu deity. In other words, we shall take up first the point formulated above as the third point of law. 11. On behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Commissioner of Income-tax, Bombay ; Kusumben D. Mahadevia Bombay v. Commissioner of Income-tax Bombay and Commissioner of Income-tax, West Bengal v. Khai-tan and Co . 14. On behalf of the assessee it is contended that the shebait is not a trustee at all. For this purpose reliance was placed on three main decisions, namely, Vidya Varuthi Thirtha v. Baluswami Ayyar, 48 Ind App 302: (AIR 1922 PC 123); W. O. Holdsworth v. State of U. P. and Mahant Moti Das v. S. P. Sahi . On a careful perusal of these authorities it appears to us that the ratio of these decisions comes only to this that a shebait is not a trustee in the English sense of the term or within the meaning of Indian Trusts Act which does not apply to she-baits in the present case. On the contrary, these authorities clearly establish this position that the obligations and duties of a shebait are at least those of the nature of a trustee. 15. The Privy Council in 48 Ind App 302: (AIR 1922 PC 123) made the following significant observation which has become celebrated exposition of the law on the subject: "In no case was the property conveyed to or vested in him, nor is he a 'trustee' in the English sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest, are mixed up and blended together; and one of the elements cannot be detached from the other. 16. These authorities, therefore, do not support the proposition that the shebait of a Hindu deity is not a trustee in any sense of the term. All that they say is that the shebait is not a trustee in the English sense or in the sense of the Indian Trusts Act or in the sense of holding the legal estate. Where the dedication is outright and absolute to a Hindu deity, the gift is to the deity. The deity is the donee; the deity is the legal owner. The she-bait in that context cannot be a legal owner as a trustee in the English sense. But the whole concept of division of legal and beneficial ownership is the English concept of an English trustee where under the English law a separation was made between a legal estate and an equitable estate. No such separation exists in India between law and equity or between legal ownership and equitable ownership, as settled by a long line of decisions beginning from the Privy Council and which it is unnecessary to repeat here. The question therefore remains whether a shebait can be construed to be a trustee within the meaning of the words as used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the well-settled function and office of shebait nor is it necessary to convey the properties to the trustees because here the trustees are not the legal owners but the deity is the donee and the legal owner of the property. In that sense the English technical law of Trust will not apply to a shebait. From that point of view also not all shebaits will come within the meaning of the word 'trustee' as used in Section 41 of the Income-tax Act unless such a shebait is appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise. It is common knowledge that dedication in Hindu law may be oral. In such a case a shebait under an oral endowment will not answer the description of trustee as used in Section 41 of the Income-tax Act. But in the facts and circumstances of this reference and as raised on this reference it is quite clear that the shebait is within the meaning of the word 'trustee' as used in Section 41 of the Income-tax Act and I hold accordingly. 20. In this connection and on this point the observations of the Supreme Court in Aggarwal Chamber of Commerce Ltd. v. Ganpat Rai Hiralal may be seen where the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is expressly inapplicable to Hindu and Moham-madan endowments, could not be said to be impliedly included. If a shebait in Hindu law or oven a mutwali under the Mohammedan law answers the description of a trustee as qualified in Section 41 then he is already included. Secondly, this argument fails to notice the history and language of introduction of the Mussalman Wakf Validating Act in Section 41 of the Income-tax Act. The language is: "Including the trustee and the trustees under any wakf deed which is valid under the Mussalman Wakf Validating Act, 1913." Therefore, the mutwalis or trustees under the wakf deed were brought in as 'including'. They had to be expressly included because wakf deeds were held to be bad according to the strict Mohammadan law where any personal benefit in the shape of maintenance and support of a Mohemadan founder of his family, children and descendants was held to vitiate the wakf and the Wakfs Validating Act, 1913 was passed in order to validate such wakfs and, therefore, those trustees who were formerly held to be trustees under an invalid wakf trust because of that personal benefit had to be expressly brought in. The histor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come derived from property held under trust or other legal obligation wholly for religious or charitable purposes in so far as such income is applied or accumulated for application to such religious or charitable purposes as relate to anything done within the taxable territories, and in the case of property so held in part only for such purposes, the income applied or finally set apart for application thereto. There is at the end of this Sub-section (3) of section I an attempt to define charitable purpose and it is provided there: "In this Sub-section 'charitable purpose includes relief of the poor, education medical relief, and the advancement of any other object of general public utility, but nothing contained in Clause (i) or Clause (ii) shall operate to exempt from the provisions of this Act that part of the income from property held under a trust or other legal obligation for private religions purposes which does not enure for the benefit of the public." 25. A reference to the above provision makes it clear at once that it is not the intention of the Income-tax Act to give a general tax exemption to income accruing from religions or charitable purpose and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and specially to the words "artificial juridical person". Although this proviso refers to the question of maximum or minimum rate or rather which rate should be applicable, it is obvious that the legislature had in view not merely ordinary living person but the legislature had also in view 'artificial juridical person' as corning within the contemplation of Section 4(1) of the Act while using the word 'person'. This Section 4 of the Act, as pointed out already on the highest authority, is as much a charging section us Section 3 of the Income-tax Act. Now a person includes an artificial person. It includes a company or a legal corporation. The doctrine of 'artificial juridical person' has also been extended to the Hindu deity. It is needless to multiply authorities on the well settled principle that the Hindu deity is a juridical entity and a juridical person. It will be enough to cite the Privy Council decision in Prosunno Kumari Debya v. Golab Chand Baboo, reported in 2 Ind App 145 (PC); Pramatha Nath v. Pradyumna Kumar, ; Income-tax Appellate Tribunal Bombay v. Managing Trustee Shri Radha Madho Trust, Saugor, ; Shri Shri Jyotishwari Kalimata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion. In fact the deity is always an assessable person in view of the authorities and the propositions that I have tried to expound. The deity is all the more so because otherwise there would be no question of claiming exemption on the ground of public religious purpose. It is only a person liable to assessment who can claim exemption. Incidentally it must be emphasised that the principle and scheme of exemptions such as those mentioned in Sections 14, 15 and 16 of the Income-tax Act or even any other Section do not contemplate either expressly or im-pliedly any exemption in favour of the Hindu deity or Hindu debutter as such. Finally, the fallacy of this argument lies in the fact that the expression "in the like manner and to the same amount as it would be leviable upon and recoverable from a person" does not at all mean that that other person should be assessable in the way that the argument assumes. Indeed the interpretation is that because that other person or the principal for whom the income is received is not otherwise available that the tax is levied upon the representative and is recoverable from him by express language of section 41(1) as quoted above. The ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be necessary only now to go into greater details on the basis of arguments advanced at the Bar on these points. 31. The main submission is that a Hindu deity is not assessable or changeable at all as a unit of assessment under the Income-tax Act. In support of this submission many arguments are put forward. In the first place, it is said that the Income-tax Act when it was introduced never contemplated or had in view a Hindu deity. It is no doubt true that Hindu deity is never mentioned as such in the Income-tax Act. Companies, firms, artificial juridical persons, associations and individuals and many other categories are expressly mentioned as a possible or probable unit of taxation but no Hindu deity as such. Not without force it is contended that the Income-tax Act is a self-contained statute and exhaustive of the matters dealt with therein, and vague principles of equity and good conscience should not be introduced into the construction of the Income-tax Act. That is perfectly right. There can be no two opinions on that point. But the whole question is whether the Hindu deity comes within the meaning and language of the Income-tax Act. I have indicated that the word 'pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, in short, conceived as a living being and is treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy; the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest." So the Hindu deity is also treated as an individual in that respect. No doubt he is not an individual in the ordinary sense nor is he an ordinary individual at all. That a deity is not only an individual but individual plus something else may not disqualify him from being an individual if he has got by custom, convention or local fiction attributes of an individual. A deity can sue or be sued, no doubt through the shebaits. But to be a plaintiff or a defendant is ordinarily a right or obligation of an individual. 33. To counter this theory or argument. Or. Pal relied on the decision of the Bombay Division Bench consisting of Beaumont. C. J. and Wadia, J. in Commissioner of Income-tax. Bombay Presidency v. Ahmedabad Millowners' Association, . This case was really concerned with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trued the word 'individual' in Section 16(3) as restricted in its connection to mean only the male species and not the female species. An unreported decision of a learned single Judge of this Court in Sri Sri Sridhar Jiew v. Income-tax Office in Matter No. 93 of 1961 (Cal) arising out of proceedings under Article 226 of the Constitution also takes the view after discussing some of the eases that the Hindu deity or the idol can be construed to be an individual within the meaning of Income-tax Act. 36. I have already analysed the general scheme of the Income-tax to show that a Hindu deity can be either an individual or a person or both under Sections 3, 4 and 41 of the Income-tax Act. It is no doubt true, that the deity may not be an individual or a person in some other sections of the Income-tax Act as pointed out by the Supreme Court in the case just quoted, and that the interpretation of the word 'individual' will depend on the context of the particular section in which it is used. For instance, Section 48 dealing with refunds and for claims for refund in prescribed forms by individuals, or Sections 51 and 52 dealing with failure to make payment or deliver returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext of Malsya Sukta which says; Having made offerings to a God, the sacrificial fee also should be given to the God. The whole of that should be given to a Brahmin otherwise it is fruitless," 38. A very exhaustive treatment on the subject is to be found in a decision of the Division Bench of this Court in Tarit Bhusan v. Sri Iswar Sridhar Salagram Shila Thakur, where it is said that a Hindu idol although a juristic person, this juristic person is of a peculiar type. It is conceived by the Hindus as a living being its own interests apart from the interests of its worshippers, and it is recognised as a juristic person capable of being the subject of legal rights and duties but only in an ideal sense. See the observations at pages 490-91 of that report. Pal, J. at page 532 of that report (ILR Cal): (at p. 119 of AIR) observed as follows: "Though an idol is thus recognised as a juristic person capable of suing and being sued, strictly speaking it has no material interest of its own. The efficient subject of the rights ascribed to an Idol must ultimately be some human beings. It must be they who enjoy such rights and, if law protects such rights, it is because of the existe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporation but that of a trust for charitable purposes, the property being vested in the shebaits as alternating trustees. Not, of course, that the English law could be applied wholesale; a purely family worship of this kind would not be a public charitable purpose in the eyes of English lawyers, and the rule against perpetuities would therefore be infringed. Still the main principle mutatis mutandis is a useful one. It is extraordinary how chary we have been in India of using the most original and far-reaching of English legal conceptions". Sir Frederick Pollock, the learned Editor, at page 422 at the end of Prof. Fitz Gerald's Comments adds the most significant remarks in these terms: "If the Fiction Theory of juristic person is right, the Thakur is as good a person as the Secretary of State for India in Council; both are fictitious. But if, as now seems the better opinion, it is wrong in principle, and has never been positively adopted by our authorities (unless a fiction can be respectable and responsible): see (1925) Ch 577, the personified idol is an inconvenient anomaly which ought to be got rid of if it is not too late." 41. Prof. P. W. Duff writing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all systems of law, excluded from operation of the rule against perpetuity, and they are generally ex-empted from liability to pay income-tax." He quotes in that connection Section 4(3) of the Indian Income-tax Act, but points out that religious purpose is not defined in that section but charitable purpose is described as including relief of the poor, education, medical relief and the advancement of any other object of public utility. Speaking on the difference between English law and the Indian law on this subject Dr. Mukherjea points out at page 395 of his lectures: "One fundamental distinction between English and Indian Law, lies in the fact that there can be no religious trust of a private character under Hindu law which is not possible in English law." 43. To summarise the conclusion on this point I will only say this that the deity is and can be an individual or a person within the meaning of the Income-tax Act and certainly so within the meaning of certain particular sections which I have already mentioned. Section 3 of the Income-tax Act in essence provides inter alia: ".....tax at that rate or those rates shall be charges for that year in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er possible to harp back to the pristine conception of Hindu jurisprudence in the matter of dedication of property to a Hindu deity. It was really formally and trully res sacra and res extra com-mercium. This aspect of the problem will become more important when I come to deal with the second branch of the question about public and charitable purpose. It is interesting to find that Churches and chapels enjoy no statutory exemption, as such, from tax under schedule A of the English law but may be entitled to exemptions as trusts established for charitable purposes only. It is, however, the practice of the Inland Revenue in U. K. to exempt all places of worship except as regards ground rent and mortgage interest. See Simon's Income-tax, 2nd Edition. Vol. 1 Section 519 page 415. 44. The last point urged in this respect on behalf of the assessee is the important question whether in Hindu law an absolute dedication must always be regarded as for public religious purpose and as such entitled to exemption within the meaning of Section 4(3)(1) of the Income-tax Act. 45. Now Hindu law according to the original 'shastras, as I understand them, never made any distinction between pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charitable purposes within the meaning of Section 539 of the old Code of Civil Procedure. Pointed attention was drawn in that case at page 263 of the report about the distinction between the English law and Indian law on the subject by the following observation of West J.: "A trust is not required for this purpose: the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English law.'' Again at page 64 West J. observes: "Property dedicated to a pious purpose is, by the Hindu as by the Roman law, placed extra commercium,....." 48. But the difficulty in the way of the assessee on the authorities in this respect is a subsequent decision by the Bombay High Court in Bhagwan Sitaram v. Namdeo Narayan, ;. There a Division Bench of Mudholkar J. and Tambe J., emphasised that Hindu law recognised endowments to a private as well as a public temple; and it did not invariably follow as a matter of course that whenever property was endowed for the purpose of a deity, a public trust was created and that the temple (in which the deity was installed) was a public trust. It was pointed out in that case that the question whether a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndan v. Murlidhar, is relevant on the point. It was laid down there that the issue whether a religious endowment was a public or a private one was a mixed question of law and fact the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found. It is said there that the distinction between a private and public endowment is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. That is a broad test. It is emphasised in that decision that though under Hindu law an idol is a juristic person capable of holding property and the properties endowed for the temple vest in it, it can have no beneficial interest in the endowment, and the true beneficiaries are the worshippers, as the real purpose of a gift of properties to an idol is not to confer any benefit on God, but the acquisition of spiritual benefit by providing opportunities and facilities tor those who desire to worship. But the point is more acutely raised in the decision of the Supreme Court in Menakuru Dasaratharami Reddi v. Subba Rao reported in AIR 1957 SC 797. At page 800 of that report G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t again in Narayan Bhagwantrao v. Gopal Vinyak, . This case also proceeded on the distinction between public and private endowment recognised in the present modern Indian law of Hindu endowments. It is said there that the vastness of the temple, the mode of its construction, the long user by the public us of right, grant of land and cash by the Rulers, taken along with other relevant factors were consistent only with the public nature of the endowment in the particular case. The observation by the Privy Council in this respect may not be out of place. In Bhagwan Din v. Gir Har Saroop, the Privy Council laid down that: "dedication to the public was not to be readily inferred when it was known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous, since it would not in general, be consonant with Hindu sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind, it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Thus in Mundacheri Koman v. Achuthan Nair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een religious and charitable endowments is a modern one. Religious endowments are of two kinds, public and private. In a public endowment, the dedication is for the use or benefit of the public. But when property is set apart for the worship of a family god, in which the public are not interested, the endowment is a private one." 57. J. C. Ghose in his Tagore Law lectures for 1904 on the Law of Hindu Endow-ments and Religious Institution Vol. If at pages 61, 72 and 73 points out that in ancient time the Hindu law did not recognise any difference between public and private religious purpose but some now through the languages of English law and through decided cases the distinction has now crept in. 58. In that view of the mattes it appears to me that it is too late in the day for this Court now to go back to original Vedic law on the subject and I must with regret come to the conclusion that a valuable original contribution of Hindu jurisprudence has been lost almost unobtrusively by misapplication of foreign jurisprudence and by failure to notice before it was too late, that Hindu jurisprudence was Very different on this point from other systems of jurisprudence of the worl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earth approach to the problems and as there is no reported decision of the Supreme Court, exactly touching the points, raised in this reference, and as the observations made in numerous other decisions of different Courts, some of which at least reveal exercises in futility and as the concept of a Hindu Deity by some of the gentlemen, having periwigs, and wearing knee-breaches, three-cornered hats and silver-buckled shoes, being mercifully non-religious, which concept is difficult to reconcile at places, it might serve a useful purpose to give as a background, a short narration about the views, ideas and concept as I understand of a Hindu Deity, Idols and consecrated or otherwise, of Hindu Religious Institutions and Endowments in the background of Hindu Religion. I give a short account of Temples, Mutts, etc., which are closely connected with the concept of a Deity and Idols. They are of numerous categories and naturally divergent and variegated, as well as enormous in the aggregate. As in the very nature of things, it is impossible even to indicate the law, on all the points noted by my learned brother, a brief historical survey of legislations regarding the temples, and the Idols ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been the feature of the long continued history of Indian (originally bracketted with 'Hindu') thought and experience. Hinduism being 'a way of life' has recognised as equally valid, every approach to the Supreme being or ¼ijekReu½(Pramatman) as an impersonal, formless and indescribable entity or as Iswara (Deity), manifested in various forms and incarnations, supplication and prayer to whom and worship of whom, may satisfy the cravings of individual souls and enable them to concentrate on something beyond, It is to satisfy these cravings and not for realising the 'prona-mis' and to cater to the manifold needs of individuals and groups that temples were established, worship and prayers in those temples were organised, and festivals were contemplated; some of which are mentioned in the will of Naskars, executed more than 60 years ago and which aiso provides for the appointment of the testator's two adopted sons as the shebaits. Religious and cultural activities are associated with tern-pies, dedicated to multiform manifestations and embodiments of the Supreme Being in one or other of its several aspects, comprising the idea of the Divinit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70. In the Vedic period there are references to the Goddess Parvati and her consort Siva under various names. The idea of a personal God is developed in the Ramayana, the Mahabharata, the Puranas and the Upapuranas (literary vehicles for interesting the common man in metaphysics and philosophy through stories and parables and engendering in him a quest for the higher values of life) and is well exposed in the Bhagavat Gita and the Brahma Sutras. The images of the Puranic Deities, generally of Siva and Vishnu, were worshipped by the Emperors. The worship of Sakti or the female principal described as a consort of Siva in different forms of Uma, Parvati, Durga, Kali, thereafter became popular. The ideas so evolved have survived till now, but one should have the basic knowledge about the elementary forms of the Idols or images of the Hindu Deity. It is not an uncommon sight that a Jain image with its five-headed serpent, is being worshipped as Lord Shiva and 'Bibhuti' (ashes) are applied on the same. 71. Temple, in some form or other, to continue the account, was known in the Sutra period. Dharma Sastras of Goutama make definite mention of temples. By that time charitable end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lcutta, Srikrishna Mahaprabu at Navadwip, Jagannath at Puri, Tirupati (Balajji) in Andhra Pradesh, Nathdwara and Pushkar in Rajasthan, Guruvayur in Malabar, Dwaraka and Bet Temples, which Srikrishna himself is reported to have founded. Temples were mostly erected by former rulers and chieftains by way of solace to their souls. In course of time the general public came to worship in private temples constructed by the zemindars ana other rich persons in Bengal and Bihar, where Idols were installed for the worship of the members ol the family. Closely connected with Hindu Religion Haridwar, Mathura, Varanasi, Ajodhya, Ujjain, Kanchipuram and Dwaraka are the seven celebrated cities of ancient and medieval India. Biddhyachal, Gaya, Deoghar, Puri, Bhubaneshar are still some of the celebrated religious centres. 74. I have given the above account of some of the temples, because a temple though a temporal setting for the eternal, promises with bold vividness the grace of God to those, who have faith and who believe. 75. It is no doubt true that Temples, Churches or Books are only the supports, the helps of the spiritual childhood; and Images, Crosses & Crescents are so many pegs to hang t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 92 and 93 of the present Code of Civil Procedure. Bills were introduced in Madras Legislative Council in 1872, 1377, 1883 and 1886, but met with no success, for one reason or the other. Dr. Rash Bihari Ghose also placed a Bill before the then Imperial Legislature which was not passed. In the year J.890 the Charitable Endowment Act (Act VI of 1890) was enacted. Came 30 years thereafter. Charitable and Religious Trusts Act, (Act 16 of 1920). Both related to public trusts. I may mention that the Religious Trust Bill of 1960 (but not intended to apply to Sikh, Muslim, Christian, Jew or Parsee religious trusts) is now pending in the Lok Sabha. Of course, it is not a rag bag of notions on anything for public accommodation to voting rights but in what final terms the Bill may emerge, it is to be seen. If some of the clauses as considered by some, are negotiable, it is said, there may be then horse-swapping, some of it, perhaps in mid-stream. The submission that the Bill will be filibustered, might be without the word of lie. 78. As to the State Enactments regulating Hindu Religious endowments, Madras produced Act 1 of 1925 which was replaced by Act 22 of 1959, amended by Act 40 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uperstitious uses, enacted during the time of the Queen Elizabeth, every one knows no gifts or bequests to the Roman Catholic Church or to any Institutions under the direction of the Pope at Rome, were recognised as valid in law. Many of the disabilities of various religious denominations were swept away by legislation from about 1829, when the Catholic Emancipation Bill was passed by the Parliament. In this Country after substantial grants were made to temples with liberal gifts of land, Hindu Kings however exercised supervision over temples and endowments. 81. As to the short account of Mutts, besides several well-known mutts (both celibate and non-celibate) e.g. Gosavi, Ahobilani and Embar; Mutts at Udipi and Tarakeswar and non-Brahmin Mutts in South India there are several Jain temples and Institutions (snch as famons shrines of Dilwara and Ranekpur (Rajasthan) Pawapuri and Rajgir (Bihar) and Pareshnath in this City of Calcutta and other Jain Institutions in Bombay, Madhya Pradesh. Madras and Mysore which are governed by the same laws as applied to Hindu Religions Institutions. By and large, they are public trusts with big purse, the capital of one or which exceeds a crore of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther in the conception of Dharma. In the Rig-Veda, Ista (Yoga) Purtam (Kshema) is said to be the means of going to Heaven. 88. Coming to the other aspect, it cannot be overlooked that religions Institutions are now faced with grave dangers on various fronts. Due to recent land Reforms legislations in almost all the States in India, the endowments are undergoing rapid changes. A number of States like Andhra Pradesh, Gujarat, Kerala, Madras, Madhya Pradesh, Orissa and Uttar Pradesh have exempted religious and charitable Institutions from the provisions of land ceiling, while certain other States like Bihar have fixed a higher acreage as the ceiling area for these Institutions. A few States like Mysore, Punjab and Rajasthan have not exempted these Institutions from the ceiling provisions at all. In certain States again, provision has been made in the relevant enactments for the payment of a perpetual annuity equal to fair rent or net-income based on fair rent. Provisions differ from State to State as to tenancy reforms in the land where the Idols are the recorded owners. 89. Among other dangers, glaciers are approaching to the Kedar Nath Temple and the detritus is approaching to its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, is not only the person by whom the tax is payable, but on whose income, profits or gains, an assessment is based. A firm generally (without taking note of the difference of its position before or after 1956) and an association (which is not a juridical entity) are yet regarded by the Act as assessable units. Companies are excluded from claiming earned income on the ground that they are inanimate entities incapable of personal exertion. 94. Now, if we go to the main charging section, namely, Section 3 of the Act, (Section 4 being held also to be a charging section by the Supreme Court, not accepting the dictum of the Privy Council), it will appear that the liability to tax does not depend on the assessment. The charging words of the Act are not the same as those of the English Statute. "Income" in Section 2(6c) of the Act is an expression of elastic ambit. It is again an inclusive definition and not exhaustive. The Act describes sources of income and prescribes methods of computing income, but it discreetly refrains from saying, what constitutes income. It does not throw any light on the general concept of the word. Some of the learned Judges likened it pictorially to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all decisions were easy to reconcile. They fluctuated as gently and respectably as the emotions of a Victorian maiden. As some of the decisions are inconclusive, if I refrain from examining them, I do so, not out of want of respect for the learned Judges who were parties to the decisions; but because I am content to found my judgment upon the principles of Hindu Law and the principles laid down by the Supreme Court and following the binding decisions of this Court. It is a depressing experience to mo that the whole subject is enveloped in an artificial atmosphere. The trouble is, that persons practising religion other than Hinduism, differ about the concept of a religious and charitable object of the Hindus. The position is made worse with their words of wisdom regarding concept of Hindu Deity and Idol, position of shebait, pujari, archaka or dharma-karta in relation to an idol or Deity, regarding concept of the position of a shebait, trustee and/or manager and lastly with the word of wisdom regarding the idea about the nature of a Hindu Religious endowment, being public or private. I need not repeat discussing the cases, as they are in bulk. I would now refer to some of the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles, namely, that the religious purposes according to Hindu Law are not confined to purposes which are productive of actual or assumed public benefit ana that they must be determined according to Hindu notions, were recognised and affirmed by his Lordship in the said decision. Gajendragadkar J. in delivering the judgment in the case of 1957 SCR 1122: (S) AIR 1957 SC 797 holds that no instrument or grant is necessary for the purpose of dedication of property to charity and to religious or charitable purposes. Conduct of the parties and user of the properties may be sufficient. 99. In laying down as to who would be the beneficiaries in a Hindu Religious endowment, Venkatarama Ayyar J., delivering the judgment on behalf of the Court in the case of which has a great bearing in the instant reference held that under the Hindu Law, the Idol was a juristic person capable of holding the property; the Idol was the owner of the endowed property but the property vested in the Idol, only in an ideal sense. His Lordship made it clear that the Idol could not make use, enjoy, dispose of and protect the endowed properties. According to the said decision they were owners only in a figurativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngurbala (supra) that the relation of a shebait to the Idol was not that of a trustee in the English sense. The shebait enjoyed the right partially of a character of a proprietary nature. In the case of Kali Pada v. Palani Bala it was held by Mukherjea J. that the shebaitship combined in it, both the elements of office and property. The trusteeship carried uo beneficial interest with it. In the case of Shirur Mutt (supra) it is held that the office and property, duty and personal interests are all blended together in the concept of a Mahant or a Shebait, and it has no relation to concrete property rights. Jagannadha Das J., in the case of Rajkali v. Ram Rattan, held that the Shebaiti combines office of a pujari with the office of a manager, in the case of Mahani Ram Saroop (supra) our attention was drawn that the expression trustee is equated with the expression shebait and both the expressions have been used freely in the some sense in the judgment. The same learned Judge who delivered the judgment in the case of held that the religious Institution and the property form one whole and the liability, if there be any, should be imposed on the trustee. The decision . Prosaddas Pal v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic charitable trusts because private temples were practically unknown there. Deokinandan's case (supra), laid down further that where the beneficiaries were specific or specified individuals, ascertained or capable of being ascertained, the trust became a private trust but where the beneficiaries were general public or a class thereof and they constituted a body incapable of ascertainment, intended to benefit the general body of worshippers, if became a public trust. The said principles applied to religious endowments as well. Menakuru's case, 1957 SCR 1122: ((S) AIR 1957 SC 797) (supra) also lays down that if dedication is complete, a trust in favour of public religious charily is creat- ed; if partial, a charge in favour of the charity is attached and the property retains its original private and secular character. Again, if substantial income is applied for the use of the chanty and an insignificant sum is kept for the worshippers it might still be a case of complete dedication. There is no general rule. It is again held in the case of Mahant Ram Saroop (supra) that where the public is not interested in the worship, it becomes a private trust. In the ease of State of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... external religion, because our standard is the sense. Such desires have caused a veil to come in between external religion and the truth. It is only a dull reflection of which is inside. 109. It is true tot on the subject of an-throomorphic and physical conception of Gods we get some reference from Rig Veda and Atharva Veda. Praises and hymns speak of the Deities and represent them like conscious being. They are sometimes described with menlike limbs. So also are their designations. They are also stated to have possessed of things used by men. 110. In Babylonion or Greek Mythologies we find one God struggling upwards and he assumes a position and remains there, while the other Gods die out. Zeus then comes to the front. Of all the Molochs, Jehovah became Supreme and the other Gods are lost for ever. The Buddhists and the Jains raised each of their prophets to the God-head and all others were made subservient to Buddha or to Jaina. Buddha, who himself speaks that he is the twenty-fifth Buddha (twenty four before him are unknown in history), wherever he went, it is stated, tried Ho pull down every old thing sacred to the Hindus, to the dust So did the Tains. It is submitted, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the omis-cient and the omnipotent being. He is omnipresent. Without hands, he grasps everything. Without feet, He can move. He is the deathless, the eternal. Him, the sword cannot pierce, Him the fire cannot burn, Him the water cannot melt, Him the air cannot dry say the ancient sages. He is the ancient one beyond all darkness. At the head of all laws, proclaim the Vedas, stands one, by whose command the wind blows, the fire burns, the clouds rain and death stalks upon the earth. Him, neither the sun, nor the moon nor the stars illumine. He in my judgment, is the Brahman of the Hindus, the Ahura--Mazda of the Zoroastrians, the Buddha of the Buddhists, the Jehova of Jews, the father in heaven of the Christians. 114. The idea that God created the universe in one minute and then went to sleep and since then. He is sleeping, is an association of all sorts of hobgoblins with the real concept of a Deity. He is not a personal Governor of the universe. He is not a human being immensely magnified. This idea is very soothing to many, something like the effect that comes from an opiate. From all the theories of the Hindu concept the residium is, that God is the witness, rather manifester of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rope. The history of the world is a standing witness to this fact. When Europe was a baby, sprawling on the floor trying to swallow his thumb, Indian philosophers already reached their culmination. India declared five thousand years ago, which we are now merely reiterating the same truth in a different language, that progress is from seen to the unseen but never in reverse direction. It cannot be disputed that all over the world, there have been changing, jumping and howling sects, who titilate the nerves of others for a moment, after taking nibbles from here and nibbles from there, but the philosophy of India percolates throughout the whole civilized world, moving and permeating as it goes. This formed the theme of the sacred books of Asia, though brokenly described by some foreign commentators. Everytime it was almost feared that the Hindu religion was at an end and some people think that under the tremendous sledge-hammer blows of scientific research it is crumbling into pieces of porcelain; but we should try to get beyond such prattle of men, to whom religion is only little intellectual assent or dissent. 119. Apart from the above view, the word 'Individual' as appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hindu Deity is not an individual. 121. The question as to the concept of a Hindu Deity was answered once for all thousands of years ago. I have only made a restatement of the answer, which I have attempted to do above. I do not pretend to throw a new light on this all absorbing question. It is my humble attempt to put the ancient truth in the language of the modern times. As Swami Vivekananda puts it "it has been the theme of the poets and sages, of priests and prophets. Kings on the throne have dismissed it, beggars in the street have dreamt of it. The best of humanity have approached it and the worst of men have hoped for it. It will not die so long as human nature exists". In my view the concept of God is a fundamental element in human constitution and religion is a constitutional necessity of human mind. In this stress and hurry of our materialistic life, though the world has become a lost balance still we are debtors to the world, giving us opportunities for exercise in a grand moral gymnasium. No study has taken so much of human energy whether in times past or present, as the study of the concept of God. However, immersed we are in our daily occupations, in our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and protections afforded to the Deity must have been thought necessary because of the existence of some ultimate human interests. It might utmost be said that the juridical personality of the Deity is "only the technical means of developing the juristic relations" between the several human beings differently interested in the Institutions. 126. On the test as to the ownership and use of the property of the Deity, though the decision in the case of Maharanee Shibessuree v. Mothooranath, 13 Moo Ind App 270 (PC) lays down that the Deity is the owner of the property but their Lordships of the Judicial Committee themselves have explained, in the case of 2 Ind App 145(152) (PC) that it is only in an ideal sense that the property can be said to belong to a Deity. "Probably this is the true legal view when the dedication is of the com-pletest kind known to the law", again observed their Lordships of the Judicial Committee in the case of Jagadindra Nath v. Hemanta Kumari, 31 Ind App 203 (PC). 127. In favour of this view, we have the doctrine of Medhatithi, the oldest and most au-thoritative of the commentators of Mann (Verses of Manu, Mandalik's Edition) and Secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebaits for this purpose and appoints them, as it were, to be the persons who are to represent the Deity for all juridical purposes. 131. There is no statutory provision as to the juristic person being made applicable to the case of a Deity. I do not think that the rule of a juristic person involves any such principles of justice and practical experience, as would entitle me to extend it to the case of a Deity by analogy. In any event, the said principle cannot be applied in the case started under the Income-tax Act. 132. The fiction that an Idol is capable of holding the property must be kept within proper limits and must be employed cautiously and subject to many limitations as held by the Supreme Court in the case of Deoki Nandan (supra). 133. The Hindu Deity is not a juristic person in the Hindu conception either. Our legislatures including the Income-tax Act, do not expressly treat him as such. The judicial Committee of the Privy Council treated the Hindu Idols as juristic persons, only for the procedural purposes in litigations. In my judgment the introduction of the Idol's recognition as a "juristic person" is "more a matter for the procedure, recognisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its favour whether the image has to be prepared and destroyed periodically or once for all, is valid. The true Hindu conception, from dedication for the establishment of the image of the Deity, is that religious merit and spiritual benefit accrue to the founder and material benefit accrues to the person in charge of the worship and to the creatures of God. 137. From the general principles laid down by the Supreme Court, it would not be safe and correct to say that when the dedication is complete, still the endowment would be private. By nature, it would be public. The concept of the Hindu Deity or Idol, as stated earlier, supports the said view. The said principle finds support also in Shri Golap Sastri's Hindu Law, 5th Edition page 711 etc., and Dr. B. K. Mukherjea's Tagore Law Lectures on Hindu Law of Religious Endowment, (2nd Edition), specially at pages 12, 40, 41, 50, 58, 71, 74, 75, 89 and 90. Pandit Prana Nath Saraswati in his Tagore Lectures oh Hindu Law of Endowment also stated that debutter property by nature is impartible, the reason being that the property dedicated to God is not private. The Full Bench decision of this Court in the case of Bhupati v. Ramlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 3 and 4 of the Act, which are charging sections. It is true that in this enabling section, the Department, if it so chooses, can take steps to assess the trustee or other representatives or it may assess the beneficiary direct. But the language in Section 41(1) is mandatory. If one compares the language of Section 40 (1), it appears that there is no direct assessment on minors, lunatics or idiots but only on their guardians i.e., it specially deals with the trustees of minors, lunatics and idiots; while Section 43 deals with the trustees in general. In my view the fax should be levied on the shebaits under the provisions of Section 11, which section has been expressly made applicable to the trustees, and mutwallis appointed under a valid deed of wakf. The relevant decisions, referred to by my learned brother, which I am not repealing, hold that the shebaits of a Deity are liable for payment of income-tax. Though a trust in the English sense of the word was unknown to the Hindu law and though the shebaits are not trustees in the English sense (see the case of Supreme Court of Angurbula supra); but their obligations are, like those of the trustees (see the case of Supreme Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the position of the nature of a trustee though not in the English sense. They cannot escape the position of at least mere trustees us discussed above. Provisions of Section 41 of the Income-tax Act, 1922 are applicable to the petitioners, as the assessments on the shebaits under the said provision of the Act are lawful. But to conclude this much is not necessarily to concede that the Hindu Deity as such is liable to income-tax. I need say no more than this.
144. Lastly. I may mention that Ananda-moyee Kalimata was in existence in the F. B. case of ILR 37 Cal 128; 14 Cal WN 18 (FB); is in existence in this Reference and will always be in existence. It is my conviction, that candles will still flicker before the Idols and in the temples with the subdued splendour, preserving the same sense of divinity, though with the marks of vicissitudes but with the lasting feeling of centuries of worship of the Hindu Deity. The Supreme Court declares in the case of Mahant Ram Saroop Dasji, (supra) that the Deity is immortal.
145. I accordingly, agree, respectfully, in the answer proposed by my learned brother and I also agree with no order for costs as passed by him. X X X X Extracts X X X X X X X X Extracts X X X X
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