Yogendra Nath Naskar Vs. Commissioner of
Income-Tax, Calcutta  INSC 46 (18 February 1969)
18/02/1969 RAMASWAMI, V.
CITATION: 1969 AIR 1089 1969 SCR (3) 742 1969
SCC (1) 555
F 1974 SC1355 (2) R 1976 SC2520 (19) RF 1977
Income-tax Act (11 of 1922)-Hindu Deity-If
can be taxed through shebaits.
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 the footing that the status of the assessees had not
been correctly determined, the Incometax Officer initiated proceedings for the
assessments against the shebaits of the deities and completed the assessments
on the deities in the status of an individual and through the shebaits. On the
question whether the assessments on the deities through the shebaits were in
accordance with law,
HELD : The Hindu idol is a juristic entity
capable of holding property and of being taxed through its shebaits who are
entrusted with the possession and management of its property.
A Hindu deity fell within the meaning of the
word 'individual' under s. 3 of the Act and could be treated as a unit of
assessment under the section and was capable of being taxed through its
shebaits. The word 'individual' in s. 3 of the 1922 Act included within its
connotation all artificial juridical persons and this legal position was made
explicit and beyond challenge in the 1961 Act. [750 C;
751 D] Neither God nor any supernatural being
could be a person in law. But so far as the deity stands as the representative
and symbol of the particular purpose which is indicated by the donor, it can
figure as a legal person and in that capacity alone the dedicated property
vests in it. There is no principle why a deity as such a legal person should
not be taxed if such a 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 to
defend such property in a court of law again in the ideal sense. [749 F]
Manohar Ganesh v. Lakshmiram, I.L.R. 12 Bom. 247; Vidyapurna Tirtha Swami v.
Vidvanidhi Tirtha Swami & Ors., I.L.R. 27 Mad. 435; Maharanet Shibessouree
Dehia v. Mothocranath Acharjo, 13 M.L.A. 270; Prosanna Kumari Debya v. Golab
Chand Baboo, L.R. 2 I.A. 145; Pramatha Nath Mullick v. Pradyumna Kumar Mullick
& Ors., 52 I.A. 245; Bhupati v. Ramlal, 10 C.L.J. 355; Hindu Law of
Religious & Charitable Trust by Mr. B. K. Mukherjea; The Commissioner of
Income-tax, Madhya Pradesh & Bhopal v. Sodra Devi,  S.C.R. 1; Cape
Brandy Syndicate v. I.R.C.,  2 K.B. 403 and Attorney General v. Clarkson,
 1 Q.B. 156, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 690 to 694 of 1968.
Appeals from the judgment and order dated
April 3, 4, 5, 1965 of the Calcutta High Court in Income-tax Reference No.
50 of 1961.
743 M.C. Chagla and B. P. Maheshwari, for the
appellant (in all the appeals).
S.T. Desai, G. C. Sharma and B. D. Sharma,
for the respondent (in all the appeals).
The Judgment of the Court was delivered by
Ramaswami, J. These appeals are brought from the judgment of the Calcutta High
Court dated 3rd, 4th and 5th April, 1965 in Income Tax Reference No. 50 of 1961
on a certificate granted under section 66A of the Indian Income Tax, Act, 1922
(hereinafter called the Act).
One Ram Kristo Naskar left a will dated 17th
May, 1899 by which he left certain properties as debuttar to two deities Sri
Iswar Kubereswar Mahadeb Thakur and Sri Sri Anandamoyee Kalimata in the land
adjoining his residential house at 74/75 Beliaghata Main Road. He appointed his
two adopted sons Hem Chandra Naskar (since deceased) and Yogendra Nath Naskar
as the shebaits. Elaborate provision was made as to the manner in which the
income from the property was to be spent. For a long time the income from the
property was assessed in the hands of the shebaits as trustees. In respect of
the assessment years 1950-51 and 1951-52, the two shebaits contended that there
was no trust executed in 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 Naskar and his brother Yogendra Nath Naskar as trustees of the
debuttar estate could not be sustained. The Appellate Assistant Commissioner
accepted this contention on appeal and set aside the assessments. Finding that
the assessments have been set aside on the footing that the status of the
assessees had not been correctly determined the Income Tax Officer initiated
proceedings for the assessment years 195253 and 1953-54 against 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 Appellate Assistant Commissioner
upheld the assessment orders of the Income Tax Officer. The assessee appealed
to the Appellate Tribunal and contended 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 any order of
the court and therefore the 'assessments were invalid and should be set aside.
It was also contended that the case of the trustee having been specifically
given up it would not be open to the Income Tax 744 Department to bring the
shebaits under any of the categories mentioned in section 41. The departmental
representative contended that the assessments had been made on the, shebaits
not under section 41 as trustees or managers but that the deities had been
assessed as individuals and that section 41 was a 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 pot be proceeded 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 assess the shebaits as managers under section 41 could not
be upheld. At the instance of the Commissioner of Income Tax, the Appellate
Tribunal referred the following question of law for the opinion of the High
Court under 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 ?" 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 following
manner to bring out the question in real controversy between the parties
"Whether an 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 appeals
is whether a Hindu deity can be treated as a unit of assessment under section 3
and 4 of the Income Tax Act, 1922.
It is well established by high authorities
that a Hindu idol is a juristic person in whom the dedicated property vests. In
Manohar Ganesh v. Lakshmiram(1) called the Dakor temple case, West and
Birdwood, if. state :
"The Hindu Law, like the Roman Law and
those derived from it, recognises not only incorporate bodies with rights of
property vested in the corporation apart (1) I.L.R. 12 Bom. 247.
745 from its individual members but also
juridical persons called foundations. A Hindu who wishes to establish a
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
conception or morality. A trust is not required for the purpose; the necessity
of a trust in such a case is indeed a peculiarity and a modern peculiarity of the
English Law. In early law a gift placed as it was expressed 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 personified in the idol".
The same view has been expressed by the
Madras High Court in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami &
Ors.(1) in which Mr. Justice Subrahmania Ayyar stated:
"It is to give due effect to such a
sentiment, widespread and deep-rooted as it has always been, with reference to
something not capable of holding property as a natural person, that the laws of
most countries have sanctioned the creation of a fictitious person in the
matter as is implied in the felicitous observation made in the work already
cited "Perhaps the oldest of all juristic persons is the God, hero or the
saint" (Pollock and Maitland's History of English Law, Volume 1, 481).
That the consecrated idol in a Hindu temple
is a juridical person has been expressly laid down in Manohar Ganesh's case (2)
which Mr. Prannath Saraswati, the author of the 'Tagore Lectures on Endowments'
rightly enough speaks of 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 Judicial Committee proceeds on precisely the
same footing (Maharanee Shibessouree Dehia v. Mothocrapath Acharjo(3) and
Prosanna Kumari Debya v. Golab Chand Baboo(4). Such ascription of legal
personality to an idol must however be incomplete unless it be linked of human
guardians for them variously designated in Debya v. Golab Chand Baboo(4) the
Judicial Committee observed thus : 'It is only in an ideal sense that (1)
I.L.R. 27 Mad.435.
(2) I.L.R. 12 Bom. 247.
(3) 13 M.I.A. 270.
(4) L.R. 2 I.A. 145.
746 property can be said to belong to an idol
and the possession and management 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 a degree as the manager of an infant heir'-words which seem
to be almost on echo of what was said in relation to a church in a judgment of
the days of Edward.
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 guardians or 'be barred of an action in
case they would complain of things wrongfully done by their guardians while
they are under age' (Pollock and Maitland's 'History of English Law', Volume 1,
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 recognition thereof by Courts of law, a 'juristic entity'. It has a
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 analogy, 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
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 a legal person as soon as it is
consecrated and vivified by the Pran Pratishta ceremony. It is not also correct
that the supreme being of which the idol is A symbol or image is the recipient
and owner of the dedicated property.
This is clearly Jaid down in authoritative
Sanskrit Texts. Thus, in his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1,
Sabara Swami states :
(1) 52 I.A. 245.
747 "Words such as 'Village of the
Gods', 'land of the Go&' are used in a figurative sense. That is property
which can be said to belong to a 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 expression
'Devaswam' in Manu, Chapter XI, Verse 26 writes "Property of the Gods,
Devaswam, means whatever is abandoned for Gods, for purposes of sacrifice and
the like, because ownership 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 beneficial enjoyment
of the properties, and they can be described as their owners only in a
figurative sense (Gaunartha). The correct legal position is that the idol as
representing and embodying the spiritual purpose of the donor is the juristic
person recognised by law and in this juristic person the dedicated property
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 dedication to
deity", said Sir Lawrence Jenkins in Bhupati v. Ramlal(1) "is nothing
but a compendious expression of the pious purpose for which the dedication is
designed". It is not only a compendious expression but a 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 consistent
with sound principles of Jurisprudence to say that a material object which
represents or symbolises a particular purpose can be given the status of a
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 Roman
Law-as later developed recognised two kinds of juristic persons. One was a
corporation or aggregate of (1) 10 C.L.J. 355 at 369.
(2) Hindu Law of Religious & Charitable
Trust by Mr. B.K, Mukherjee.
748 persons which owed its juristic
personality to State sanction. A private person might make over property by way
of gift or legacy to a corporation already in existence and might at the same
time prescribe the particular purpose for which the property was to be employed
feeding the poor or giving relief tothe poor
distressed. The recipient corporate would be in a position of a 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 a new juristic person which depended for its origin upon nothing
else but the will of the founder provided it was directed to a charitable
purpose. The foundation would be the owner of the dedicated property in the eye
of law and the administrators 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 onwards-foundations created by private individuals came to be
recognised as foundations in the true legal sense, but only if they took the
form of a ipia cause' ('pium corpus') i.e. were devoted to 'pious uses', only
in short, if they were charitable institutions. Wherever a person dedicated
property-whether by gift inter vivos or by will--in favour of the poor, or the
sick, or prisoners, orphans, or aged people, he thereby created ipso facto a
new subject of legal rights the poor-house, the hospital, and so forth-and the
edicated 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 law, however, took the view that the endowments of charitable
foundations were a species of Church property. Piae cause were subjected to the
control of the Church, that is, of the bishop or the ecclesiastical
administrator, as the case might be. A pia causa was regarded as an
ecclesiastical, and consequently, as a public institution, and as such it
shared that corporate capacity which belonged to all ecclesiastical
institutions by virtue of a general rule of law. A pia causa did not require to
have a juristic personality expressly coffered upon it. According to Roman law
the act-whether a gift inter vivos or a testamentary disposition-whereby the
founder dedicated property to charitable uses was sufficient, without more, to
constitute the pia cause a foundation in the legal sense, to make it, in other
words, a new subject of legal rights"(1).
(1) Institute of Roman Law, 3rd Edition pp.
749 We should, in this context, make a
distinction between the spiritual and the legal aspect of the Hindu idol which
is installed and worshipped. From the spiritual standpoint the idol may be to
the worshipper a symbol (pratika) of the Supreme Godhead intended to invoke a
sense of the vast and intimate reality, and suggesting the essential truth of
the Real that is beyond all name or form. 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 form the deity is
invoked, the Hindu worshipper purports to worship the Supreme Spirit and
(Rig Vedda 1. 1.64) (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 (Chap. xi39) (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 endowment 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 a matter with
which the law is concerned. Neither God nor any supernatural being could be a
person in law. But so far as the deity stands as the representative and symbol
of the particular purpose which is indicated by the donor, it can figure as a
legal person. The true legal view is that in that capacity alone the dedicated
property vests in it.
There is no principle why a deity as such a
legal person should not be taxed if such a 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 to defend such property in a of law again in the ideal sense.
Our conclusion is that the Hindu idol is a 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 a Hindu deity because it was not a real but a juristic person. We
are unable to accept this argument as correct. We see no reason why the meaning
10Sup./69-13 750 of the word 'individual' in section 3 of the Act should be
restricted to human being and not to juristic entities. In The Commissioner of
Income Tax, Madhya Pradesh & Bhopal v.
Sodra Devi(1) 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 a human being but is wide enough to include a
group of persons forming a unit.
It has been held that the word 'individual'
includes a Corporation created by a statute, e.g., a University or a Bar
Council, or the trustees of a baronetcy trust incorporated by a Baronetcy
We are accordingly of opinion that a Hindu
deity falls within the meaning of the word 'individual" under section 3 of
the Act and can be treated as a unit of assessment under that section.
On behalf of the appellant Mr. Chagla
referred to section 2 sub-section (31) of the Income Tax Act, 1961 (Act No. 49
of 1961) which states :
"2. In this Act, unless the context
otherwise requires(31) 'person' includes(i) an individual, (ii) a Hindu
undivided family, (iii) a company, (iv) a firm, (v) an association of persons
or a body of individuals, whether incorporated or not, (vi) a local authority,
and (vii)every artificial juridical person, not falling within any of the
Counsel also referred to S. 2(9) and S. 3 of
the Income Tax Act, 1922 which state:
"2. In this Act, unless there is
anything repugnant in the subject or context(9)'Person' includes Hindu
undivided family and local authority".
(1) (1958] S.C.R. I at P. 6.
751 "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
previous year of every individual, Hindu undivided family, 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 a comparison of the provisions of the two
Acts counsel on behalf of the appellant contended that a 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 a
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. In Cape Brandy Syndicate v.
I.R.C. (1), Lord Sterndale R. said :
"I think it is clearly established in
Attorney General v. Clarkson (2) 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 ambiguous. I quite agree that subsequent legislation if it
procedure 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 interpretation
which is to be put upon the earlier Act".
For the reasons expressed we hold that the
question of law referred 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
(1)  2 K.B. 403.
(2)  1 Q.B. 156,163,164.