YOGENDRA NATH NASKAR versus COMMISSIONER OF INCOME-TAX, CALCUTTA

YOGENDRA NATH NASKAR

COMMISSIONER OF INCOME-TAX, CALCUTTA

February 18, 1969

{I. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)

Income-tax A.ct (11 of 1922)-Hindu Deity-If can be tax.<d througlt shebtlits.

Finding that the assessments of the income from the properties of two Hindu. deities in the hands of its shebaits as trustees were set aside on th~ footing that the status of the assessees had not been correctly determined, the Income-tax Officer initiated proceedings for the assessments again!ft th~ shebaita of the deities and c:Ompleted the assessments on the deities in th!! statuo of an individual and through the shebaits. On the question wh<ther tlae auessments on the deities through the i;hebaits were in accordance with law,

HELD : The Hindu idol is juristic entity capable of holding property and of being taxed through its shebaits who are entrusteJ with the pos-session and management of its proper.ty.

Hindu deity fell within the meaning of the word 'individual' under s. 3 of the Act ;,.ind couid be treated as unit of assessment undl!r the section and was capable of being taxed through its shebaits. Tne word 'individual' in s. 3 of the 1922 Act included within its connotation al! artificial juridical persons and this legal position was n1ade explicit and beyond challenge in the 1961 Act. (750 C; 751 DJ

Neither God nor any supernatural being could be person in law. But liO far as the deity stands as the representative and symbol of rh.:-particular purpose whic.in is indicated by the donor; it can figure as legat persoo and in that capacity alone the dedicated property vests in it. Th,:-r~ is no principle why deity as such legal person should not bt! taxed if such legal person is allowed in law to own property even though in ·the ideal sense and to sue, for the prvperty, to realise rer..t and to dcfen\.~ such property in court of law again in the ideal sense. [749 F]

Manohar Ganesh v. Lakshmira1n, I.L.R. 12 Born. 247; Vidyap1!l'J11! Tirtha Swami v. Vi<l,vo·nldhi Tirtha Swami & Ors., !.L.R. 27 ~fad. 435; .Maharan~t Shibessouree Dehia v. Mothocrariath Acharjo, 13 1\1.L:A. 270; ./'rosanna Kw:ir.ri Dcbya v. Golab Chand Baboo, L.R. 2 I.A. 145; l'ramotha Nath Mullick v. Pradyumna Kumar Mullick & Ors., 52 I.A. 245; Bhupati v. Ram/al, 10 C.L.J. 355; Hindu Law of Religious & Clra1·i1-·ahl~ Trust by Mr. B. K. 1\lukherjea; The Commissioner of lncome•tax, Madhya Pradesh & JJhopal v. Sodra Devi, (1958] S.C.R. I; Cape Br«ndy Syndical~ v. l.R.C., (1921] 2 K.B. 403 and Attorney General v. Clarkson, .(1900] 1 Q.B. 156. referred to. ·

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 690 • 694 of 1968.

Appeals from the i.udgment and order dated April 3 4, 5. 1965 of the Calcutta High Court in Income-tax Reference 1'1o. 50 of 1961.

Y. N, NASKAR v. C,I.T. (Ramaswami, I.)

M. c. Chagla and B. P. Maheshwari, for the appellant (i;n all the appeals).

S. T. Desai, G. C. Sharma and B. D. Sharma, for the ·reopon-dent (in all the appeals).

The Judgment of the Court was delivered by

Ramaswami, J. These appeals are brought from the judg-:11.cnt of the Calcutta High CoUrt dated 3rd, 4th and 5th April, 1965 in Income Tax Reference No. 50 ot 1961 on certificate granted under section 66A of the Iµdian Income Tax, Act, 1922 (hereinafter called the Act).

One Ram Kristo Naskar left will dated 17th May, 1899 by which he left certain properties as debuttar to two deities Sri Sri Iswar Kubereswar Mahadeb Thakur and Sri Sri Ananda-moyee Kalimata in the land adjoining hi.s residential house at 7 4 /7 5 Beliaghata Main Road. He appointed his two adopted sons Hem Chandra Naskar (since deceased) and Yogendra Nath N askar as the shebaits. Elaborate provision was made as to the liWmer in which the income from the property was to be spent. For long time the income from the property was assessed in the hands of the shebaits as trustees. In respect of the assess-ment years 1950-51 and 1951-52, the two shebaits contended that there was no trust executed ~n the case and as such the income from the property did ·not attract liability to tax and particularly the assessments made in the name of Hem Chandra ]'(askar and his brother Yogendra Nath Naskar as trustees of the debuttar estate could not be sustained. The Appellate Assistant Commissioner accepted this contention oo appeal and set aside the assessments. finding that the assessments have been set aside on the footing that the status of the assessee.; had aot been correctly determined the Income Tax Officer initiated proceecliiugs for the assessment years 1952-53 and 1953-54 a!Jlinst Hem Chandra Naskar and Yogendra Nath Naskar, the shebaits of the two deities and completed the assessments on the deities in the status of an individual and through the shebaits. The claim for exemption under the proviso to section 4(3)(i) of the Income Tax Act was rejected. On appeal the Appell.ate Assistant Commissiqner upheld the assessment orders of the Income· Tax Officer. The assessee appealed to the Appellate Tribunal and coatended that the deities were not chargeable· to tax under s. 3 of the Act; that section 41 of the Act did not apply to the facts of the case. Though the shebaits were the managers who could come under the ambit of section 41, they had not been appointed by or under lli!l!y order of the court and dlercfore the assessments were invalid and should be set aside. It was also contended that the case of the trustee having been 1pccifically giwn . up it would not be open to the Income Tax

Department to bring the shebaits upder any of the categori~ mentioned in section 4 L The departmental representative contended that the assessments bad been made on the shebaits not under section 41 as trustees or managers but that the deities had beem assessed as individuals and that section 41 was surplusage in. making the assessments. The Tribunal held that though the shebaits were the managers for the purpose of section 41, they were not so appointed by or under any order of ·the court, and, .therefore, the second condition required by · section 41 was not fulfilled, and the shebaits could pPt be pro-ceeded against. The' Appellate Tribunal added that the specific provision which the Tribunal first relied. was that of trustees under section 41, but that case having been given up the further attempt to a5sess the shebaits as managers .under section 41 could not be upheld .. At the insta,nce of the Commissioner of Income Tax, the Appellate Tribunal referred the _ followin~ · question of law for the opinion of the High Court 'Q,rider section 66(1) of the Act:

"Whether on the facts and in the circumstances of the case, the assessment on the deities through the shebaits under the provisions of section 41 of the ·Indian Income Tax Act were in accordance ··with law?"

of the

After having heard learned cOunSel for both the parties we are satisfied that in the question referred by . the Appellate Tribunal the words 'under the provisions of section 41 of the Indian Income Tax Act' should be deleted as superfluous and the question' should be modified in the follo,wing manner to bring out the question in real controversy between the parties : "Whether ari the facts and in the circumstances of the case, the assessments on the deities through the shebaits were in accordance with law."

The main question hence presented for determination in these appe'als is whether Hindu deity can be treated aS unit . of assessment under section 3 mid 4 of the Income Tax Act, 1922.

It is well. established by high authorities that Hindu idol is. juristic person in whom the dedicated property vests. In Manohar Ganesh v. Lakshmiram(') called the Dakor temple case, West and Birdwood, JJ. state: . . . · · ·

' "The Hindu Law, like the Roman Law and those derived from it, recognises not only incorporate bodies with rights of property vested m the corporation apart

(1) I.L.R. 12 Born. 247.

from its individual members but also juridical persons called foundations. Hindu who wishes to establish religious or charitable institution may according to his law express his purpose and endow it and the ruler will give effect to the bounty or at least, protect it so far at any rate as is consistent with his own Dharma or con-I ceptiQll or morality. trust is not required for the purpose; the necessity of trust in such case is in-deed peculiarity and modern peculiarity of the English Law. In early law gift placed as it was ex-pressed on the altar of God, sufficed it to convey to the Church the lands thus dedicated. It is consistent with the grants having been made to the juridical person symbolised or pernonified in the iclol".

The same view has been expressed by the Madras High Court in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami & Ors. ( [1]) ill which Mr. Justice Subrahmania Ayyar stated :

"It is to give due effect to such sentiment, wide-spread and deep-rooteq as it has always been, with reference to something not capable of holding property ·as natural per.;on, that the laws of most countries have sanctioned the creation ol fictitious person in the matter as is implied in the felicitous observation made in the work already cited "Perhaps the oldest of all juristic pernons is the God, hero or the saint" (Pollock and Maitla.nd's History of English Law, Volume I, 481).

That the consecrated idol in Hindu temple is juridical pernon has been expl'a%1y laid down in Manohar Ganesh's case('), which Mr. Prannath Saraswati, the author of the 'Tagore Lectures on Endowments' rightly enough speaks ol as one ranking as the leading case on the subject, and in which West J., discusses the whole matter with much erudition. And in more than one case, the decision of the Judi-G cial Committee proceeds on precisely the same footing (Maharanee Shibessouree Dehia v. Mothocrapath Acharjo([1 ]) and Pr0sanna Kumari Debya v. Golab Chand Baboo(•). Such ascription of legal personality to a,n idol must however be incomplete unless it be Jinked of human guardians for them variously designated in Debya v. Golab Chand Baboo(•) the Judicial Com-mittee observed thus : 'It is only in an ideal sense that

(t) I.LR. 27 Mad. 435.

(2) 1.l.R. 12 Born. 247.

(3) 13 M.l.A. 270.

(4) L.R. 2 I.A. 145.

property can be said to belong to an idol and the possession and managemi;nt must in the nature of things be entrusted with some person as shebait or manager. It would seem to follow that the person so entrusted must be necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property at least to as great degree as the manager of an infant heir'-words which seem to be almost on echo of what was said in relation to church in judgment of the days of Edward I : 'A church is always under age and is to be treated as an infant and it is not according to law that infants should be disinherited by the negligence of their guar-. / dians or be barred of an action in case th_ey would ./ complain of things wrongfully done by their guardians while they are under ·age' (Pollock and Maitland's 'History of English Law', Volume I, 483".

In Pramatha Nath Mullick v. Pradyumna Kumar Mullick &: Ors.([1]) Lord Shaw observed:

."A Hindu idol is, according to long . established authority, founded upon the religious customs of the Hindus, and the recog1tiition thereof by Courts of law, 'juristic entity'. It has juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who -is in law its manager with all the powers which would, in such circumstances, on ana-logy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities; . - for this doctrine thus simply stated, is firmly estal>-lished".

It should however be remembered that the juristic person in the idol is· not the material image, and it is an exploded theory that the image itself develops. into legal person as soon as it is con-secrated and vivified by the Pran Pratishta ceremony. It is _111ot also correct that the supreme being of which the idol is sym-bol or image is the recipient and owner of the dedicated property. This is clearly laid down in authoritative Sanskrit Texts. Thus, in his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada I, Sabara Swami states : ·

~T ~'l:r'1';'1fa, '3"'!'11('11\'lli._ I 'IT 'Rf>r~a' f<tf~ifl[frr, ~ 'i'!'). I 'f 'I" m1f mf "IT

(1) 52 I.A. 245.

'f'nfmn<f fef;p:r'f'T~ ..:> ..:>· ~T I • ffi'l1A <f5flf"<!i'l'olcf 11 ~'l'IJ<." I«· I ujj <HT 'ITf<Nefa, ~<rarrf'tll'f 'fa <'f'R!lf I "Words such as 'village of the Gods', 'land the.Gods; are used. in figurative sense. That is property which c;¢ be said to belong to person, which he can make use of as he desires. God. however does not make use of the village or lands, according to its desires". Likewise, Medhathithi in commenting on the expres-sion 'Devaswam' in Manu, Chapter XI, Verse 26 writes :

.... ~'fl'ffB<>:r, .. llT'!TlG' f'l"IT<l <!'if ~·. "' "' "'"' d~'lf'l'l ,' lf"'1<'! f'lffif!f<f'Flm', ~00 om'1'11?: I ... "' ...

"Property of the Gods, Devaswam, means· whatever is abaindoned .. for Gods, for. purposes of sacrifice and the like, because owner-ship in the primary sense, as showing the relationship between · the owner and the property owned, is 'impossible of application._ to Gods". Thus, according to the texts, the Gods have no bene-ficial enjoyment of the properties, 'aJ!ld they can be described as their owners only in figurative sense ( Gaunartha). The correct legal position is that the idol as representing and em-bodying the spiritual purpose of the donor is the juristic person._ recognised by law and in this juristic persOJil the dedicated pro- -perty vests. As observed by Mr. Justice B. K. Mukherjea :

"With regard to Debutter, the position seems to be somewhat different. What is personified here is not the entire property which is dedicated to the deity but the deity itself which is the central part of the foundation and stands as the material symbol and embodiment of the pious purpose which the dedicator has in view. "The dedicatioin to deity", said Sir Lawrence Jenkins in Bhupati v. Ram/a/([1 ]) "is nothing but compen-F dious expression of the pious purpose for which · the dedication is designed". It is not only compendious expression but material embodiment: of the- pious purpose and though there is difficulty in holding that property can reside in the aim or purpose itself, it would be quite cQ'1Sistent with sound principles of Jurisprudence to say that material object which repre-G sents or symbolises a· particular purpose can be given the status of legal person, and regarded as owner of the property which is dedicated to it."(2)

The legal position is comparable in many respects to the · development in Roman Law. So far as charitable endowment is concerned Romalll. Law. as later developed recognised two kinds of juristic persons. One was corporation or aggregate · of·

(I) JO C.L.J. 355 at 369.

(2) Hindu Law of Religious & Charitable Trust by M·r. B.K. lvfukherjee.

persons which owed its juristic personality to State sancti~n. private person might make over property by way . of gift or legacy to corporation already in existence and might at the sa.me time prescribe the particular purpose for which the property wu to be employed e.g. feeding the poor, or giving relief to the poor or distressed. The recipient corporatiqib wpuld be in position of trustee and would be legally bound to spend the funds for the particular purpose. The other alternative was for the donor to create an institution or foundation himself. This would be j!lew juristic person which depended for its origin upon nothing else but the will of the founder provided it was directed to charitable purpose. The foundation would be the owner of the dedicated property in the eye of law and the ad-ministrators would be in the position of trustees bound to carry out the object of the foundation. As observed by Sohm :

"During the later Empire-from the fifth century onward&--foundations created by private individuals came to be recognised as foundations in the true legal iense, but only Ji they took the form of ipia causli ('pium corpus') i.e. were devoted to 'pious uses', only in short, if they were charitable institutions. Wherever person dedicated property-whether by gift inter vivos or by will-ijll favour of th!l poor, or the sick, or prisoners, orphans, or aged people, be thereby created ipso facto new subject of legal rights -the poor-house, the hospital, and so forth-and the dedicated property became the sole property of this new subject; it became the sole property of the new juristic person whom the founder had called into being. Roman Jaw, however, took the view that the endowments ,of charitable fobndations were species of Church property. Pioe causae were subjected to the control of the Church, that is, of the bishop or the ecclisiastical administrator, as the case might be. pitz causa was regarded as an ecclisiastical, and consequen-tly, as public institution, and as such it shared that corporate capacity which belonged ·to all ecclisiastical institutions by virtue of general rule of law. pia causa did not require to have juristic personality expressly confered upon it. According to Roman law the act-whether gift inter vivos or testamen-tary disposition-whereby the founder dedicated pro-perty to charitable uses was sufficient, without more, to constitute the pia causa foundatioo in the legal sense, to make it, in other words, new subject o.f legal rights"(').

(1) 111''.:i·ute of Roman L~w. 3rd Edition pp. 197-198.

Y. N. NASKAR v. C,I.T. (Ramaswami, J.)

We should, in this context, make distinction between the spiritual and the legal aspect of the llindu idol which is installed and worshipped. From the spiritual standpoint the idol may be to the worshipper symbol (pratika) of the Supreme God-head intended to invoke sense of the .vast and intimate reality, and suggesting the essential truth of the R~ that is beyond all name or fonn. It is basic postulate of Hindu religion that different images do 'not represent different divinities, they are really symbols of One Supreme Spirit and in whichever name or fonn the deity is invoked, the Hindu worshipper purports to worship the Supreme Spirit and nothing else.

~>it fir.I ~ 3ff"111; 3\1§1 " ...... q;'!i ~ f'fl!T qg~T <Rfli'I' I (Rig Veda I. 164)

(They have spoken of Him as Agni, Mitra, Varuna, Indra; the one Existence the sages speak of in many) . The Bhagavad Gita echoes this verse when it says :

'"'!' <r•ftsfr.i<: ~: mrr~= llorN~ <ii llf<r~ I (Chap. xi-3 9)

(Thou art Vayu and Yama, Agni, Varuna and Moon: Lord of creation art Thou, and Grandsire).

Samkara, the great philosopher, refers to the one Reality, who, owing to the diversity or intellects ( matibheda) is conventionally spoken of (parikalpya) in various ways as Brahma, Visnu and Mahesvara. It is however possible that the founder of the en-dowment of the_ worshipper may not conceive on this highest spiritual plane but hold that the idol is the very embodiment of a' personal God, but that is not matter with which the law is concerned. Neither God nor any supernatural being could be person in Jaw. But so far as the deity stands as the represen-tative and symbol of the particular purpose which is indicated by the donor, it can figure as legal person. The true legal view is that in that capacity alone the dedicated property vests in it. There is no principle why deity as such legal person should not be taxed if such legal person is allowed in law to own property even though in the ideal sense and to sue for the property, to realise rent and ti> defend such property in court of law again in the ideal sense. -Our conclusion is that the Hindu idol is juristic entity capable of holding property and of being taxed through its shebaits who are entrusted with the possession and management of its property. It was argued on behalf of the appellant that the word 'individual' in s. 3 of the Act should not be construed as including Hindu deity because it was not real but juristic person. We are unable to accept this argument as correct. We see no reason why the meaning LIOSup./69-13

of the word 'individual' in section 3 of the Act should be res-tricted to human being and not to juristic entities. In The Com-.mlsioner of Income Tax, Madhya Pradesh & Bhopal v. Sodra Devi(') Mr. Justice Bhagwati pointed out as follows :

"the word 'individual' has not been defined in the Act and there is authority, for the proposition that the word 'individual' does not mean only human being but is wide enough to include group of persons form-ing unit. It has b~ held that the word 'individual' includes Corporation created by statute, e.g., University or Bar Council, or the trustees of baro-netcy trust incorporated by Baronetcy A.ct".

We are accordingly of opinion that Hindu deity falls within the meaning of the word fadividual" under section 3 of the Act and can be treated as unit of assessment under that section.

On behalf of the appellant Mr. Chagla referred to section 2 .sub-section (31) of the Income Tax Ad, 1961 (Act No. 49 of 1961 ) which states : ·

''2. In this Act, unless the context otherwise

requires-

( 31) 'person' includes-

(i) an individual,

(ii) Hindu undivided family,

(iii) company,

(iv) firm,

(v) an association of persons or body of indivi-

duals, whether incorporated or not,

(vi) local authority, and

(vii) every artificial juridical person, not falling

within any of the preceding sub-clauses".

·Counsel, ~so referred to s. 2 ( 9) and s. 3 of the Income Tax Act, 1922 which state :

. "2. In .this Act, unless th~re is anything repugnant m the subject or context-

( 9) 'person' includes Hindu undivided family and local authority".

(I) (1958] s.c.R. 1a1p,6.

"3. Where any Central Act enacts that income-tax shall be charged for any year at ,any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the pre-vious year of every individual, Hindu undivided family, ·B company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually".

On comparison of the provisions of the two Acts counsel on behalf of the appellant contended that restricted meaning should be given to the word 'individual' in section 3 of the earlier Act. We see no justification for this argument. On the other hand, we are of the opinion that the language employed in 1961 Act may be relied upon as Parliamentary exposition of the earlier Act even on the assumption that the language employed in section 3 of the earlier Act is ambiguous. It is clear that the word 'individual' in section 3 of the 1922 Act includes within its connotation all artificial juridical persons and this legal position is made explicit and beyond challenge in the 1961 Act. ln Cape Brandy Synilicate v. I.R.C.([1]), Lord Sterndale M.R. sfild: '

"I think it is clearly established in A. ttorney Gen· era! v. Clarkson(') that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is am-biguous. I quite agree that subsequent legislation if it proceeded on an erroneous construction of previous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpre-tation which is to be put upon the earlier Act".

For the reasons expressed we hold that the question of law reler-red by the Income-tax Appellate Tribunal and as modified by us should be answered in the affirmative and in favour of the Commissioner of Income-tax. We accordingly dismiss these appeals. with costs. One hearing fee.

Appeals dismissed.