Commissioner of Income-Tax, Kerala and
Coimbatore Vs. Puthiya Ponmanichintakam  INSC 245 (14 August 1961)
CITATION: 1962 AIR 163 1962 SCR (3) 137
CITATOR INFO :
R 1971 SC2463 (12)
Income Tax-Wakf-Assessment-If must be in the
status of individual or as association of persons-Mutawalli, if a
trustee-Indian Income-tax Act, 1922(11 of 1922), s. 41(1), First
proviso-Mussalman Wakf Validating Act, 1913 (6 of 1913), ss.3,4.
The question for determination in the appeal
was whether the wakf in question should be assessed to tax under s.41 (1) of
the Indian Income-tax Act. 1922, through the manager as individual or as an
association of persons at the maximum rate under the first proviso to that
section on the ground that the individual shares of the beneficiaries were
indeterminate and unknown. The wakf deed directed the mutawalli to do acts
necessary for charitable purposes and to meet the maintenance expenses of the
wakif's children, grand-children, the female children born in the future and
the male children born to the said female children and after payment of taxes
and meeting of expenses for repairs, and maintenance of properties, to utilise
the balance of the income for daily necessary expenses of the house and for-
food for purchasing dresses and other necessities for the and female members of
the tarwad. for conducting specified ceremonies, for feeding the poor and for.
other then necessary expenses and thereafter
to utilise the balance, if any, in acquiring properties yielding good income.
138 Held that under the terms of the wakf
deed the individual shares of the beneficiaries were indeterminate within the
meaning of the first proviso to s.41 (1) of the Indian Income-tax Act, 1922,
and as such the assessee was liable to pay income-tax thereunder at the maximum
It was not correct in view of ss.3 and 4 of
the Muscleman Wakf Validating Act, 1913, to say that under the wakf deed the
property vested in the Almighty and the Mutawalli did not therefore, receive
the income on behalf of any person within the meaning of s.41 (1) of the Indian
Income-Tax Act and as such the proviso could not come into operation.
Under the Mahomedan law wakf property vests
in the Almighty only in an ideal sense and the Mutawalli, acting in his name,
utilises the income for the advantage of the beneficiaries. The words "on
behalf of any person" in s.41 of' the Act, therefore, could only mean on
behalf of the beneficiaries and not on behalf of the Almighty.
Jewun Doss Sahoo v. Shah Kubeer-ood-deen, (1
841) 2 M.I. A. 390, referred to.
Held, further, that there was no scope for
importing the Mahomedan Law of wakf in s.41 of the Act since that section in
express terms treated the Mutawalli as a trustee though he is not one in the
technical sense under the Mohamedan Law.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 397 of 1960.
Appeal from the judgment and order dated.'
November 24, 1958, of the Kerala High Court ill I. T. R. No. 23 of 1957.
K. N. Rajagopala Sastri and I P.C. Menon, for
A. V. Viswanatha Sastri Narayanaswami and R.
Gopalakrishnan, for the respondent.
1961. August 14. The Judgment of the Court
was delivered by SUBBA RAO, J.-This appeal by certificate' granted by the High
Court of Kerala raises the question of the application of a. 41(1) of the Indian
Income-tax Act (hereinafter called.the Act) to the fact of the case.
139 One P. B. Umbichi and his wife executed a
deed dated December 20 191.5 creating thereunder a wakf of their properties. It
was provided therein., inter alia that the income from the properties mentioned
therein should be utilised for the maintenance of their two daughters and their
children on the female side. For 40 years upto and inclusive of the assessment
year 1954-55, the income-tax assessments were made on the wakf through its manager
under s. 41 of the Act in the status of an individual. But, for the assessment
year 1955-56, the Income-tax Officer treated the assessee as an association of
persons, and, on the ground that the shares of the beneficiaries are
indeterminate, levied tax at the maximum rate under the first proviso to s. 41
of the Act. On appeal, the Appellate Assistant Commissioner of Income-tax held
that the Income- tax Officer was not right in holding that the members of the
family were indeterminate, but he confirmed the assessment for the reason that,
the shares were not specified among the individual members of the family and
also between the members of the family on the one hand and the charitable and
religious purposes on the other, the first proviso to s. 41- would be
applicable to 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 Mutawalli was only to look after ant
administer the properties as a manager and, therefore, the proper person in
whose hands the income from the properties should be assessed was the Mutawalli
in his status as an "individual" at the rates applicable to an
individual. ID 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 in the facts and circumstances
of the case, the first proviso to section 41 is applicable".
140 The High Court held that the said proviso
was not applicable, as under the wakf deed the beneficiaries and their shares
were ascertainable. Aggrieved by the said order, the Commissioner of Income-tax
has preferred the present appeal.
Mr. Rajagopala Sastri, learned counsel for
the Commissioner of Income-tax, contended that on a fair reading of the terms
of the wakf deed it would be clear that the Mutawalli was only directed to
maintain the members of the family, that none of the members of the family had any
ascertainable &hare in the income, and that, therefore, the case squarely
fell within the first proviso to s. 41 of the Act.
Mr. Viswanatha Sastri, learned counsel. for
the respondent, in addition to his attempt to sustain the construction put upon
the wakf deed by the High Court, contended that the instant case fell outside
the scope of s. 41(1) of the Act, as the Mutawalli was only receiving the
income, on behalf of the Almighty, that the Almighty was not a
"Person", and that, therefore, as the main, section (lid not apply,
the proviso also would not be attracted, with the result that the Muta award
would have to be assessed as an "individual"..
As the argument turns upon the construction
of s. 41 of the Act, it will be convenient at"the outset to read the
relevant parts thereof.
"Section 41 : (1) In the case of income,
profits or gains chargeable under this Act which...... any trustee or trustees
appointed under a trust declared by a duly executed instrument 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 trustees, 141 in the like manner and to the
same amount as it would be leviable upon and recoverable from the pers on 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 indeterminate or unknown, the tax shall be levied and
recoverable at the maximum rate, but, where such persons have no other personal
income chargeable under this Act and none of them is an artificial juridical
person, as if such income, profits or gains or such part thereof were the,
total income of an association of persons." This section in term s applies
to a trustee under a wakf deed which is valid under the Mussalman Wakf Validating
Act,, 1913. Under the substantive part of. the section, tax is leviable on the
trustee of the wakf in the like manner and to the same amount as it would be
leviable upon and recoverable from the beneficiary, that is, the assessment
would be at the-individual rates of tax applicable to the beneficiary. But,
under the first proviso to that section, there are two exceptions to the
general rule, viz., (1) where the income is not specifically receivable on
behalf of anyone person; and (ii) where the individual shares of- the persons
on whose behalf the income is receivable are indeterminate or unknown. In those
two circumstances tax shall be levied and recoverable at the maximum rate. It
is agreed that the first exception does not apply to the instant case. But the
question that falls to be decided is whether the individual shares of the
persons on whose behalf the income is receivable are indeterminate or unknown.
The answer to the question depends upon the construction of the 142 provisions
of the Wakf deed. The Wakf deed was executed on December 20, 1950 by Umbichi
and his wife dedicating their entire property, moveable and immoveable, of
total value of rupees one lakh for the objects mentioned therein. The Mutawalli
appointed there under 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 grand-children 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 "daily necessary
expenses of the house and food expenses as we are doing now", and for
purchasing "dresses and other necessities for the then male and female
members of the tarwad" and for conducting "nerchas (ceremonies) ,such
as Yasin, Moulooth, etc., charitable ceremonies for feeding the poor and such
other necessary expenses , and out of the balance, if any, the Mutawalli was
directed to acquire properties yielding good income. The rest of the recitals
in the document are not relevant for the present purpose..
Can it be said that, under the document, the
individual shares of the beneficiaries are specified ? The document does not
expressly specify the shares of the beneficiaries;
nor does it do so by necessary implication.
Indeed,' the individual shares of the beneficiaries Are not germane to the
objects of the document. The Mutawalli was directed to bear, out of the income
the expenses necessary for maintaining the members of the tarwad and to conduct
the necessary religious ceremonies. The distribution of the family income and:
family expenses was left to the discretion of the 143 Mutawalli, the document
also further contemplated that the Mutawalli by his prudent and efficient
management would save sufficient amounts for purchasing properties. The
'directions indicate beyond any reasonable doubt that no specified share of the
income was given to any of the benefit series, and their right was nothing
more, than to be maintained having regard to their reasonable requirements
which were left to the discretion of Mutawalli. 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 bold that under
the terms of the document the individual shares of the beneficiaries are
indeterminate within the meaning of the first proviso to s. 41(1) of the 'Act.
If so, under the said proviso, the assessee is ,liable to pay income-tax, at
the maximum rate.
The alternative contention of learned counsel
'for the respondent remains to be considered. The argument is that 'under the
Wakf deed the properties vest in the Almighty and, therefore, the Mutawalli
receives the income 'only on behalf of the Almighty and not on behalf of any
person within the' meaning of s. 41(1) of the Act, with the result that s.
41(1) is not applicable to the assessment in question. The argument is rather
subtle, but it has no force. There are three effective answers to this
contention Firstly, it was not raised before the High Court-the only question
argued before the High Court was whether the beneficiaries of the trust and
their individual shares of the income of the trust were ascertainable.
144 Secondly, though under the Mahomedan Law
the properties dedicated under a Wakf deed belong to the Almighty, it is only
in the ideal sense, for the Mutawalli in the name of the Almighty utilises the
income for the purposes and for the benefit of the beneficiaries mentioned
therein. Under the Mahomedan Law, the moment a Wakf is created all rights of
property pass out of the wakf and vest in the Almighty.
'The property does not vest, in the,
Mutawalli, for he is merely a manager and not a trustee in the technical sense.
'Though Wakf property belongs to the
Almighty, the practical significance of that concept is explained ill Jeuwun
Dass Sahoo v. Shah Kubeer-good-deen (1) thus :
"................... Wakf signifies the
appropriation 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 yet in the Almighty, the property is held for the benefit of His
creatures, that is, the beneflciaries. 'Though at one time it was considered
that to constitute a valid Wakf there must be dedication of property solely to tbe
Worship of God or for regious or charitable, purposes, the Wakf Validating
,Act, 1913, discarded that view and enacted by s. 3 that a Mussalman can create
a wakf for the maintenance and support, wholly or partially, of his family,
children or descendants, provided the ultimate benefit is expressly or
impliedly reserved for the poor or for any other purpose recognised by the
Mussalman law as a religious, pious or charitable purpose of a permanent
character. Section 4 of the said Act, goes further and says that a wakf shall
not be invalid by the mere' circumstance that tile benefit (1) (1840)2. M.I.A.
145 reserved for the poor or for religious
purposes is postponed until the extinction of the family It is, therefore,
manifest that under the Mahomedan Law, the property vests only in the Almighty,
but the Mutawalli, acting in' His name, utilises the income for the advantage
of the beneficiaries. Therefore, the words ,,on behalf of any person" in
s. 41 of the Act , can only mean on behalf of the beneficiaries and not on
behalf of the Almighty.
The third and more effective answer to the
argument is that s. 41(1) of the Act provides for a vicarious assessment in
order to facilitate the levy and collection of income-tax' from a trustee in
respect of income of the' beneficiaries.
In express terms it equates the Mutawalli of
a wakf to a trustee. For the purpose of S. 41 the Mutawalli is treated as a
trustee and, on the analogy of a trustee, he holds the property for the benefit
of the beneficiaries. There is no scope for importing the Mahomedan Law of Wakf
in s. 41 when the section in express terms treats the Mutawalli as a trustee,
though he is not one in the technical sense 'under the Mahome'dan Law. If the
argument of learned counsel for the respondent be accepted, it would make s. 41
of the Act otiose so far as wakfs are concerned, for in every case of wakf the
property I would be held for the Almighty and not for any person. We,
therefore, reject this contention and answer the question in the affirmative.
In the result, we 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. The appeal is allowed with costs.