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TMI Blog1931 (6) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... am alive, and for the maintenance of my children according to the Mohammadan law and the Wakf Validating Act of 1913, to earn blessings in the next world, and from the date of this deed according to the conditions laid down in the deed, I release from my possession as a proprietor the property in question and take possession of the said property as a Mutwalli. The conditions of the trust shall be as under:-(1) I will remain in possession of the said property as a Mutwalli and manager during my lifetime and will spend the income from the property according to my own wishes for my own maintenance and that of my children and also for religious or charitable purposes . Other clauses of the deed lay down that the income from the property shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the Income-tax Commissioner that the reference was invalid as under the terms of section 66(3) of the Income-tax Act the provisions of section 98, Civil Procedure Code, shall apply to such a reference notwithstanding anything contained in the Letters Patent of any High Court. His argument was that, as the learned Judges had differed and had expressed their opinions in judgments signed and dated by them, they were functus officio and as there was no majority, one way or the other, the opinion of the Income-tax Commissioner should prevail. I do not think there is any force in this preliminary objection. In all such cases the question is one of intention and it is clear from the record that the learned Judges did not intend that their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el appearing for the Income-tax Commissioner was that the words should be construed either in their plain grammatical sense or in accordance with the principles of English Law. Now I find that in Commissioners for Special Purposes of Income-tax v. John Frederick Pemsel, [1891] AC 531 the matter was considered with reference to the Income-tax Act in England where the question was whether a certain gift was for charitable purposes or not. At page 548 Lord Halsbury in his dissenting judgment observed as follows:- I also think the true view of the construction of an Act which is to apply to England, Ireland, and Scotland alike, is that it ought to be construed according to the canon of construction laid down by the Court of Session in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of the majority, as given in the judgments of Lord Macnaghten and Lord Herschell, was of opinion that the ordinary sense of the words for charitable purposes would include the gift in question. Lord Herschell was also of that opinion if the popular sense was to be adopted for the purposes of construction. He thought, however, that there was no distinction between the English and the Scotch legal construction. Lord Macnaghten was of opinion that while there was no vital difference between the English and Scotch Law on the point yet on the principle of construction he preferred the rule laid down by Lord Hardwicke that you must take the meaning of legal expressions from the law of the country to which they properly belong, and in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gested by Lord Halsbury were adopted the result, in my opinion, would be the same in the present case. Secondly, it is not in the least likely that the legislature in using the words in question expected the Income-tax authorities to go into the complicated questions of law that may arise, if they had to find out in each particular case the meaning of the words with reference to the personal law of the assessee. Thirdly, it is not in the least likely that the legislature intended to benefit any one community or any individuals of any one community at the expense of other members of different communities or of the same community. As pointed out by Lord Halsbury every remission of income-tax from one property or individual finally throws a he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Validating Act the decision might be otherwise. It is clear, therefore, that their Lordships did not accept the contention that the Validating Act had declared the Mussalman Law to be other than what had been laid down by their Lordships in Abdul Fata Mahomed Ishak s case (supra). In M. E. R. Malah s case (supra) a case under the Income-tax Act, their Lordships pointed out that the Validating Act introduced a third element into the case namely, pious purpose as distinct from religious or charitable purposes. Their Lordships appear to have held that, while a gift for the maintenance of oneself and one's children with an ultimate reversion to the poor might be a gift for a pious purpose and the income devoted to the purpose might be in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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