Das Gupta, J. - (1.) This is a reference made by the Appellate Tribunal at the instance of the Income-tax authorities for the opinion of this Court on a question which is formulated in these words; Whether in the facts and circumstances of the case the Tribunal were right in holding that under the endowment the two' deities took equally and that their shares being thus defined there was no scope for an assessment at the maximum rate. One Dinanath Ghose executed an Arpan-nama on 3-6-1917 by which he dedicated to the two deities, one of which is Radha Shyara Jew Jugal Murti and the other a Narayan Sila called Sri Sri Sridhar Jew, properties mentioned in Schs. 'Ka' and 'Kha' of the document. He did not specify the shares which each of the deities was to get in these properties. If the gift was a joint gift to the two deities with the share of each indeterminate, the income receivable by each of the deities would be indeterminate and under the proviso to Section 41, Income-tax Act tax was leviable and recoverable at the maximum rate at the relevant date. If, however, the dedication amounted to two separate gifts to the two deities, the necessary conclusion from the absence of specification of shares of each would be that each of the two deities would have an equal share in the properties so that the income receivable would be determinate and the proviso would not apply. The question is whether by the dedication a joint estate was created in favour of the two deities or two separate estates were created. The question is covered by the authority of this Court's decision in -- 'Commr. of Income-tax v. Pulin Behary De', 20 ITR 314 (A). In that case. there was also dedication to two deities Thakur Harihar and Thakurani Sachimata without specifiction of shares and earmarking of any sum for the religious expenses in each case. The Tribunal held that the individual shares of the beneficiaries were determinate and the assessment should have been made on each separate and respective income. A case was stated on the question whether the Appellate Tribunal was right in holding that although the shares of the two deities were not defined in the deed of endowment, their shares were defined in law, that is, they were equal and, therefore, the first proviso to Section 41 is inapplicable. In this Court Harries C. J. and Chatterjee J., held that the Tribunal had arrived at a correct conclusion and answered the question in the affirmative. This decision was followed by this Court in the subsequent case of -- 'Commr. of Income-tax, W. B. v. Sm. Ashalata Debi', reported in the same volume of ITR at p. 326 (B). In -- 'Pulin Behari De's case (A), Harries C. J., with whom Chatterjee J., agreed, relying mainly on the pronouncement of the Judicial Committee in the Privy Council in -- 'Bahu Rani v. Rajendra Bakhsh Singh', 60 Ind App 95 : (AIR 1933 PC 72) (C), reiterating what they have stated earlier in 'Jogeswar Narain Deo v. Ram Chund Dutt', 23 Ind App 37 (D), that the principle of joint tenancy as known to English law was unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by Mitakshara held that a joint tenancy cannot be created by a Hindu either by a grant inter vivos or by a will.
(2.) If this decision that a Hindu cannot create a joint tenancy at all by a grant inter vivos or by a will be a correct proposition of law, the necessary conclusion must be that in the present case also the Tribunal has by holding that a tenancy in common came into existence so that the shares of the two deities were equal and determinate came to a correct conclusion. Mr. Meyer, however, tried to convince us that the proposition of law as laid down in 'Pulin Behari De's case (A)', that a joint tenancy cannot be created by a Hindu either by a grant inter vivos or by a will is not a correct proposition of law. He has first contended that the pronouncement of the Judicial Committee that the principle of joint tenancy was unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by Mitakshara was itself irreconcilable with numerous statements of the law by the Privy Council itself that the interests of two or more daughters succeeding as heirs to their father, two or more sons, grandsons or great grandsons succeeding, as heirs to the self-acquired property of a paternal ancestor, two or more grandsons of a daughter who are living as members of a joint family succeeding as heirs to the maternal grandfather and two or more widows succeeding as heirs to the estate of their husband were in the nature of joint tenancies. He further contended that in any case the pronouncement of the Privy Council was not and could not be intended to apply to the creation of debuttor estates where altogether separate considerations arise.
(3.) It seems to me unnecessary in the present case to decide whether or not the statements of the law by the Privy Council in -- 'Jogeswar Narain Deo's case (D)', and repeated in more definite terms in '60 Ind App 95: (AIR 1933 PC 72) (C)', can be reconciled with the earlier statements of law as regards the existence of other joint tenancies in addition to the joint property of the undivided Hindu family nor whether the statements should be held inapplicable to the debuttor estates. It may be mentioned, however, that even if the state ment of law that the principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family gov erned by Mitkashara be taken to be fully consis tent with the earlier statement of the law and also applicable to debuttor estates it would not neces sarily follow that such an estate could not be created by a Hindu by a grant. It is important to mention in this - connection that in -- 'Yethirajulu Naidu v. Mukunthu Naidu', ILR 26 Mad363 (E), where Sir Arnold White C. J., and Subrahmania Ayyar J., had to consider the question whe ther by bequest of a house in favour of the sons the sons took it as tenants in common or joint tenants, Subrahmania Ayyar J., observed at p. 373 of the Reports: "The decision of the Judicial Committee in -- 'Jogeswar Narain Deo v. Ram Chand Dutt', (D), points out that the principle of joint tenancy as obtaining in England is quite foreign to the Hindu Law and that, when property is gifted to more than one, in the absence of anything in the grant to the contrary the presumption is that the donees take as tenants in common." It seems to me that much can be said in favour of the view taken in the above case that it is not right to base on the pronouncement of the Privy Council mentioned above that no Hindu can create a joint estate in favour of two persons, but that such an interest being ordinarily unknown to Hindu law a grant by a Hindu should be presumed not to have created a joint estate but that presumption can be rebutted by a clear indication of an intention of the grantor to create a joint estate. Assuming that we agree with Mr, Meyer that the proposition of the law as stated in --'Pulin Behari De's case (A)', that a Hindu cannot by a grant create a joint estate should not be accepted as correct, I do not think it can be doubted for a moment that the presumption is in favour of a tenancy in common and only the clearest indication of a contrary intention will justify that a joint estate was created. Mention may be made in this connection of the case of -- 'Administrator-General of Madras v. Money', ILR 15 Mad 448 (P), where it was said at p. 469 that "the general result of the authorities seems to be that the tendency of the Court is to lean against joint tenancy". If this was a correct statement of the law, as in my opinion it was, at that time, the consequence of the pronouncement of the Judicial Committee that the idea of a joint tenancy was unknown to Hindu law would certainly be that there would be a very strong presumption in the case of a grant by a Hindu that he did not intend to create a joint tenancy and that it is only on the clearest indication of an intention to create a joint tenancy that the above presumption can be rebutted.;