MITTER, J. - (1.) THE question referred under s. 66(1) of the Act is : "Whether, on the facts and in the circumstances of the case, and on a proper construction of the deed of dedication, dt. 17th Baisakh, 1303 B. S. (28th April, 1896), the income from the properties covered by the said deed was assessable under s. 9 of the Indian IT Act in the hands of the respondent-assessee ?" THE facts laid in the statement of the case are as follows :
(2.) THE relevant assessment years are 1952-53, 1953-54, 1954-55, 1955-56 and 1956-57, the corresponding previous years being the Bengali years 1358 to 1362 B. S. By an arpannamah dt. the 17th Baisakh, 1303 B. S., one Kadambini Dassi and her son, Purna Chandra Daw, created a debutter endowment in respect of their family dwelling house at No. 12, Sib Krishna Daw Lane, Calcutta, in which the ancestral family deity Sri Sri Sridhar Jiew was installed as well as other immovable properties including a temple on the banks of the Ganges at Barrackpore in which the deities Sri Sri Radharaman Jiew and Sridhar Jiew Salgram and six images of Shiva had been enshrined. THE deed was executed by the said two persons for selves and as executrix and executor to the estate of the late Haridas Daw. For the asst. yrs. 1952-53, 1953-54 and 1954-55, the assessment was made in respect of the properties covered by the deed on Pulin Chandra Daw, shebait to the Estate Shib Kristo Debutter Estate and for the next two assessment years, namely, 1955-56 and 1956-57, the same assessee was described as trustee to the debutter estate. THE income from the debutter estate was assessed under two heads : (1) house property under s. 9, and (2) other sources under s. 12 of the Act. THE assessments were confirmed by the AAC in appeal. In further appeal to the Tribunal, however, a different view was taken. THE Tribunal found that no trust in the technical sense of the term had been created by the arpannamah and that there was no conveyance in favour of any trustee. Nor in the opinion of the Tribunal was there any formal conveyance of the property in favour of the idols. According to the Tribunal "what the settlors had unequivocally done was to extinguish their own interests in the property and dedicate the same for certain pious and benevolent purposes to be carried out by the said Purna Chandra Daw and his successors." In these circumstances, the Tribunal held that, despite the absence of a formal conveyance in their favour, the idols were the legal owners of the property dedicated to them and the correct status of the assessee was that of a shebait or a manager who had no beneficial interest in the property. On this view, the Tribunal held that the assessee was not liable to be taxed under s. 9 and that the assessments made in respect of the income from property could not be sustained. As the whole thing turns on the interpretation of the arpannamah and the rights created thereby, it is necessary to examine the same in detail. Even at the outset it was apparent that the translation of the arpannamah, which was in Bengali, and an annexure to the statement of the case was not a correct rendering of the document in English. Accordingly, we directed that the arpannamah be translated officially by an official translator and interpreter of this Court and this was done. By consent of parties the official translation of the arpannamah was marked as an exhibit and the parties proceeded and put their cases basing the arguments on the official translation. The executants of the document, as already noted, were Sreemati Kadambini Dassi, widow of late Shib Krishna Daw, and Purna Chandra Daw, son of late Shib Krishna Daw for selves and as executor and administrator respectively to the estate of late Haridas Daw. The material provisions of the document may be noted as follows : The deed opens with the words "This deed of dedication is to the deity to the effect following : we have our residential house at No. 12, Shib Krishna Daw Lane, and in that house the daily seva of Sri Sri Ishwar Sridhar Jiu is carried on and regular annual celebrations of Sri Sri Ishwar Autumnal Durga Puja, Sri Sri Ishwari Shyama Puja, Sri Sri Ishwar Kartic, Sri Sri Ishwari Saraswati Puja and Dol Jatra of Sri Ishwar Sridhar Jiu are performed and according to the family traditions the puja of Sri Sri Ishwari Gandeswari, etc., are daily and regularly performed. 2. Besides this there are one Nababattan and six temples and one Rangamancha, etc,. situate on the banks of Ishwar Bhagirathi in the Mouza Barrackpur and there is also a ghat at Ishwar Bhagirathi and a temple was caused to be constructed wherein the deity Sri Sri Ishwar Radharaman Jiu in pair and the salagram Sri Sri Ishwar Sridhar Jiu and six idols of Lord Siva were installed and were duly consecrated on the 21st of Jaistha, 1297 B.S. 3. There is no other separate debutter property sufficient for the purpose of carrying on the daily seva and other rites of the aforesaid deities and hence whatever properties we have out of the same a pucca three storied building together with the rent free land containing the same being premises No. 56, Clive Street, which has been partitioned this marked half share and 10 pucca double-storied buildings on Baranashi Ghose Street, etc., we have decided to dedicate these properties for Ishwar Dev seva. 4. Besides the properties already made debutter a market known as Hargunj Bazar together with rent free land thereunder as well as other lands are in our possession.
(3.) WE execute this deed of dedication in respect of the rented house, etc., the said Harganj Bazar, two mouzas in Touzi No. 80 of Burdwan Collectorate, all mentioned in the schedule for performing the share of daily seva of ancestral deity Sri Sri Ishwar Sridhar Jiu, the performance of pujas and festivals and daily and periodical rites as also Sri Sri Ishwar autumnal Durgotsab, etc., and daily seva, pujas, etc., of recently consecrated deities Ishwar Radha Raman Jiu, etc., according to the system mentioned in the schedule to be performed forever and dedicate the same in favour of the deity. Whatever rights and income the executants have in the properties mentioned in the schedule below become debutter.;