# AHMED G. JI. ARIFF & ORS v. COMMISSIONER OF WEALTH TAX, CALCUTTA

- **Citation:** [1970] 2 S.C.R. 19
- **Court:** Supreme Court of India
- **Decided:** 1969-08-20
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ahmed-g-ji-ariff-ors-v-commissioner-of-wealth-tax-calcutta-4778
- **Pages:** 9

## Headnote

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AHMED G. JI. ARIFF & ORS.
v.
COMMISSIONER OF WEALTH TAX, CALCUTTA
August 20, 1969
19
(J. C. SHAH, ACTING C.J., V. RAMASWAMI AND A. N.
GROVER,
JJ.]
Wealth Tax Act (27 of 1957), ss. 2(e), (m) and 7(1)-Right to
receive share from wakf-alal-aulad-Whether asset assessable to wealth
tax-"lf sold in open market" meaning of.
A hanafi Muslim created a wakf-alal-aulad and appointed himself as
the sole Mutwalli and provided that after his death his widow and sons
would act as Mutawallis jointly.
The wakf was for the benefit of the
settler's wife, children and their descendants, and they were each to be
paid a specified share of the net monthly income of the property.
The
ultimate benefit in the case of complete intestacy of the descendants of
the settler was reserved for poor musalmans of sunni community deserving help.
On the question \vhether the right of the assessee who were
the beneficiaries under the deed of wakf, to receive a specified
share of
the net income from the estate, was an asset assessable to weath tax, this
Court,
HELD : (i) The right in question was assessable to wealth tax.
(i) "Property" is a term of widest import and subject to any limitation which the context may require, it signifies every possible interest
which a person can clearly hold or enjoy. [25 C-D]
The definition of "assets" in s. 2(e) and that of "net wealth"
in
s. 2(m) of the Wealth Act were comprehensive provisions and all assets
were included in the net wealth by the very definition. Therefore, when
s. 3 imposed the charge of wealth tax on the net wealth it necessarily
included in it every descfiption of property of the assessee movable and
immovable, barring the exceptions stated in s. 2(e) and other provisions
of the Act. There is no reason or justification ~o give any restricted meaning to the word "assets" as defined by s. 2(e) of the Act when the language employed shows that it was intended to include property Of every
description. [25 H; 26 A-B]
On a .propetr construction of the relevant clauses in the wakf deed,
it must be held that the aliquot share of the income provided for the
beneficiaries was not meant merely for their maintenance and supp0rt.
But even on the assumption that it was so intended or to preserve the
validity of the deeds it should be so construed the right to the share of
the income would certainly be asset within the meaning of s. 2 ( e) and
would be liable to be included in the net wealth of the assessee. [26 B-C]
Vidya Varuthi v. Balusami Ayyar, 48 I.A. 302. 312, Abdul Karim
Adenwalla v. Rahtmabai, 48 Born. L.R. 67, Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt. [1954] S.C.R. 1005, 1019 and
Commissioner of
Inland
Revenue v. Crossman, [1937] A.C. 26, referred to.
20
SUPREME COURT· REPORTS
[1970] 2 S.C.R.
Conunissioner of Wealth Tax, Bombay City v. ·Purshottam N. Amersey
& Anr. 71 LT.R. 180, approved.
(ii) When the statute uses the words "if sold in the open market" it
does not contemplate actual sale or the actual state of the market, but
only enjoins that- it should be assumed that there is· an open market and
the property can be sold in such a market and on that basis the value has
to be found out. It is a hypothetical case which is contemplated and the
Tax Officer must assume that there is an open market in which the asset
can be sold. [26 E-F]
(iii) The contention, that the tight to receive a share of the income
was a mere right to an annuity where the terms and conditions relating
thereto precluded the commutation of any portion into a lump sum grant
must be rejected.
The \\'Ord "annuity" could not be given its popular
and dictionary meaning, but should be given the signification which it
has assumed as a legal term owing to judicial interpretation.
Where the
legislature uses a legal term which has received judicial interpretation
courts must assume that the terms has been used in the sense in which it
has been judicially interpreted. [26 G-H; 27

## Text

A
B
c
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F
G
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AHMED G. JI. ARIFF & ORS.
v.
COMMISSIONER OF WEALTH TAX, CALCUTTA
August 20, 1969
19
(J. C. SHAH, ACTING C.J., V. RAMASWAMI AND A. N.
GROVER,
JJ.]
Wealth Tax Act (27 of 1957), ss. 2(e), (m) and 7(1)-Right to
receive share from wakf-alal-aulad-Whether asset assessable to wealth
tax-"lf sold in open market" meaning of.
A hanafi Muslim created a wakf-alal-aulad and appointed himself as
the sole Mutwalli and provided that after his death his widow and sons
would act as Mutawallis jointly.
The wakf was for the benefit of the
settler's wife, children and their descendants, and they were each to be
paid a specified share of the net monthly income of the property.
The
ultimate benefit in the case of complete intestacy of the descendants of
the settler was reserved for poor musalmans of sunni community deserving help.
On the question \vhether the right of the assessee who were
the beneficiaries under the deed of wakf, to receive a specified
share of
the net income from the estate, was an asset assessable to weath tax, this
Court,
HELD : (i) The right in question was assessable to wealth tax.
(i) "Property" is a term of widest import and subject to any limitation which the context may require, it signifies every possible interest
which a person can clearly hold or enjoy. [25 C-D]
The definition of "assets" in s. 2(e) and that of "net wealth"
in
s. 2(m) of the Wealth Act were comprehensive provisions and all assets
were included in the net wealth by the very definition. Therefore, when
s. 3 imposed the charge of wealth tax on the net wealth it necessarily
included in it every descfiption of property of the assessee movable and
immovable, barring the exceptions stated in s. 2(e) and other provisions
of the Act. There is no reason or justification ~o give any restricted meaning to the word "assets" as defined by s. 2(e) of the Act when the language employed shows that it was intended to include property Of every
description. [25 H; 26 A-B]
On a .propetr construction of the relevant clauses in the wakf deed,
it must be held that the aliquot share of the income provided for the
beneficiaries was not meant merely for their maintenance and supp0rt.
But even on the assumption that it was so intended or to preserve the
validity of the deeds it should be so construed the right to the share of
the income would certainly be asset within the meaning of s. 2 ( e) and
would be liable to be included in the net wealth of the assessee. [26 B-C]
Vidya Varuthi v. Balusami Ayyar, 48 I.A. 302. 312, Abdul Karim
Adenwalla v. Rahtmabai, 48 Born. L.R. 67, Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt. [1954] S.C.R. 1005, 1019 and
Commissioner of
Inland
Revenue v. Crossman, [1937] A.C. 26, referred to.
20
SUPREME COURT· REPORTS
[1970] 2 S.C.R.
Conunissioner of Wealth Tax, Bombay City v. ·Purshottam N. Amersey
& Anr. 71 LT.R. 180, approved.
(ii) When the statute uses the words "if sold in the open market" it
does not contemplate actual sale or the actual state of the market, but
only enjoins that- it should be assumed that there is· an open market and
the property can be sold in such a market and on that basis the value has
to be found out. It is a hypothetical case which is contemplated and the
Tax Officer must assume that there is an open market in which the asset
can be sold. [26 E-F]
(iii) The contention, that the tight to receive a share of the income
was a mere right to an annuity where the terms and conditions relating
thereto precluded the commutation of any portion into a lump sum grant
must be rejected.
The \\'Ord "annuity" could not be given its popular
and dictionary meaning, but should be given the signification which it
has assumed as a legal term owing to judicial interpretation.
Where the
legislature uses a legal term which has received judicial interpretation
courts must assume that the terms has been used in the sense in which it
has been judicially interpreted. [26 G-H; 27 A-Bl
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2129
to 2132 oi 1968.
Appeals from the judgment and order dated December 4,
1964 of the Calcutta High Court in Tax Matters Nos. 69, 62 and
64 of 1963.
A. K. Sen, S. K. Hazare and P. K. Mukherjee, for the appellants (in all the appeals).
B. Sen, S. A. L. Narayarta Rao and R. N. Sachthey, for the
respondent (in all the appeals).
The Judgment of the Court was delivered by
Grover, J.
These appeals by certificate from a judgment of
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the Calcutta High Court involve a common but important quesF
tion, namely, whether the right of an assessee to receive a specified share of the net income from an estate in respect of which
Wekf-alal-aulad has been created is an asset assessable to Wealth
Tax.
By a deed dated November 19, 1928 as.modified by a deed
of rectification dated July 5, 1930 one Golam Hossain Kasim
G
Ariff, a muslim governed by the Hanafi School of the Mohammadan Law created a wakf in respect of his properties in Noormul Lohia Lane and Armenian Street in Calcutta. The settlor
appointed himself as the sole Mutwalli for the term of his life and
provided that after his death his widow Aisha Bibi and his sons
would act as Mutwallis jointly.
The settlor died on January 1,
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1937.
He left behind h:.; widow Aisha Bibi and three ~ons who
are the appellants before this Court.
The wakf created was of
the nature of Wakf-alal-aulad for the benefit of the settlor's wife,
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G. H. ARIFF v. C.W.T. (Graver, J.)
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children and their descendants.
The extent of the benefit conferred on them would appear from clause 5 of the deed of wakf as
modified :
·
"5. After payment of all necessary outgoings such
as establishment charges, collections charges, revenue
taxes, costs of repairs, law charges and other expenses
for the upkeep and management of the said Wakf property, the Mutwalli or Mutwallis shall apply the net income of the said Wakf property as fo]]ows, viz. :
(a) In payment to me during the term of my life of
one-fifth of the said net income by monthly
instalments.
(b) In payment to each of my sons during the respective terms of their lives one-sixth of the said
net income by monthly instalments.
( c) In payment to my wife Aisha Bibi during the
term of her life one tenth of the said net income
by monthly instalments.
The moneys payable as aforesaid to such of my sons
as are minors shall until they attain the age of majority be respectively invested (after defraying the expenses of their maintenance and education) in proper
securities or in landed property in Calcutta and such
securities or property shall be made over to the said
sons on their respectively attaining the age of majority."
The ultimate benefit in the case of complete intestacy of the descendants of the settlor was reserved for poor musalmans of Sunni
community deserving_help.
The appellants who are the beneficiaries under the deed of
wakf were paying income tax on the amount which was being received by them in terms of that deed from the Mutwalli. In the
year 1957 the Wealth Tax Act 27 of 1957, hereinafter called the
Act, came into force. During the assessment years 1957-58 and
1958-59 the appellants were not only assessed to income tax in
respect of the income received by them. from the wakf estate but
were also assessed to Wealth tax by the Wealth Tax Officer on the
basis that they had a share in the wakf estate. The total value of
the immoveable property belonging to the wakf estate was valued
at 20 times tlie annual municipal valuation and 1/6th of the value
of the immoveable property along with other properties was
taken to be the net wealth of each assessee. Appeals were taken
to the Appellate Assistant Commissioner of Wealth Tax but these
were dismissed.
There were further appeals to the Income tax
Appellate Tribunal where no dispute was raised as . indeed it
could not be raised with regard to the validity of the deed of wakf.
22
SUPREME COURT REPORTS
[1970] 2 S.C.R.
It was held that the right of the sons of the wakf to receive a
share of the rents and profits of the wakf property was property
or an interest in property and as it was not limited in enjoyment
to a period of six years it fell within the definition of the temi
"assets" as·defined bys. 2(e) of the Act.
The contention of the
appellants that the right of the beneficiaries under the deed of wakf
was a mere right to an annuity as mentioned ins. 2(e)(iv) and
was, therefore, not an asset assessable to wealth tax was rejected:
The third argument which had been raised before the Tribunal
that the allowances under assessment were payable to the beneficiaries by way of maintenance were not transferable under s.
6 ( dd) of the Transfer of Property Act and therefore they had no
market value for inclusion in the net wealth was also refuted. It
was pointed out that the right to maintenance was not one of the
assets mentioned in s. 5 which alone entitled an assessee to claim
exemption in respect of certain ass.ets.
The Tribunal did not find
it possible to hold on the facts of the case that the amounts in
dispute were receivable by the beneficiaries as maintenance under
the terms of the wakf.
As regards the quantum of valuation a
direction was made that the value of the assessee's life interest
may be capitalised on the basis of the valuation table set out in
Park's Principles and Practice of Valuations
taking the rent
security at 6%.
On applications for referring the question of Jaw, the fo!Jowing common question was referred to the High Court under s. 27
of the Act :
"Whether on the facts and circumstances stated the
right of the assessee to receive a specified share of the
net income from the Wakf Estate is an asset the capitalised value of which is assessable to Wealth-tax?"
The High Court negatived the contentions of the appellants that
the right to receive a definite share of the net income from wakf
property did not fall within the meaning of the word "assets" as
defined by s. 2 ( e) of the Act or that it was a mere right to an
annuity which nnder the Mohammedan Law could not be commuted into a Jumpsum. It was held that the right of each assessee
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was to receive an aliquot share of the net income of the proper- ·
ties which were made the subject matter of the wakf and there
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was a clear distinction between an aliquot share of income and
an annuity.
The High Court was of the view that even if the
asset of the nature under consideration was non-transferable and
could not be sold in the open market it could not be said that such
an asset had no value.
For the purpose of the Act the Wealth
Tax Officer must proceed to value it as if it was an asset which
was saleable in the market and that would depend on acturial
valuation.
The question was consequently answered in the affirmative and in favour of the revenue.
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G. H. ARIFF v. c. w. T. (Grover, J.)
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A
The d~finition of the word "assets" as given in s. 2 (e) of the
Act to the extent it is material is in the following terms :
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( e) "assets" includes property of every description, movable or immovable but does not include--
(iv) a 'right to any annuity in any case where the
terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant;
( v) any interest in property where the interest is
available to an assessee for a period not exceeding six
years;"
"Net wealth" is defined by section 2(m). Section 3 is the charging valuation date of every individual etc. Section 4 gives the
financial year a tax in respect of the net wealth on the corresponding valuation date of every individual etc. Section 4 gives the
assets which have to be included in computing the net wealth.
Section 5 gives those assets which are exempt from and are not
to be included in the net wealth of the assessee. Section 7 ( 1)
provides that value of any asset other than cash shall be estimated
to be the price which, in the opinion of the Wealth Tax Officer,
it would fetch, if sold in the open market, on the valuation
date.
It is to be essentially decided whether the right to receive an
aliquot share of the net income of the properties which were made
the subject matter of the wakf would be covered by the definition
of "assets" within the meaning of s. 2(e) of the Act.
There can
be no difficulty if such a right can be regarded to be property
giving that word the widest meaning as is contemplated by the
language employed in the aforesaid clause. The principal aqp1ment of Mr. A. K. Sen for the appellants is that the right to receive
a share of the income under a deed creating wakf-alal-aulad can;
by no streich of reasoning, be regarded to fall within the'
meaning of the word "property" even in its wide and extended
sense.
He has referred to the incidents of such a right with particular reference to the Mohammedan Law relating to wakf. That
law owes its origin to a rule laid down by the Prophet of Islam;
and means "the tying up of property in the ownership of God
the Almighty and the devotion of the profits for the benefit of
human beings." Once it is declared that a particular property is
wakf, the right of the wakif , is extinguished and the ownership is
transferred to the Mutawalli (vide Vidya Varuthi v.
Balusami
Ayyar('). Wakfs could be divided into two classes : (i) public
and (ii) private. A private wakf is one for the benefit of the-
(1) 48 I.A. 302 at p. 312.
. 24
SUPREME COURT REPORTS
(1970] 2 S.C.R .
settlor's family and his descendants.
It is called Wakf-alaJ-aulad.
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.Before the enactment of the Mussalma·n Wakf Validating Act·
1913, a wakf, exclusively for the benefit of the settlor's family,
. children and descendants in perpetuity, was invalid. It was,
Jiowever, valid if the property was given in substance to charitable
uses.
Section 3 of the aforesaid Act declared it lawful for a
person professing the Mussalman faith to create a wakf which in
8
all other respects was in accordance with the provisions of the
.1y1ussalman law, for the following among other purposes :-
" (a) for the maintenance and support wholly or
partially of his family, children or descendants, and
(b) where the person creating a wakf is a Hanafi
Mussalman, also for his own maintenance and support
during his lifetime or for the payment of his debts out
of the rents and profits of the property dedicated;
Provided that the ultimate benefit in such cases 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."
.As mentioned before, the moment a wakf is created, all rights of
property pass out of the Wakif and vest in the Almighty. There-
.fore, the Mutawalli has no right in the property belonging to the
wakf.
He is not a trustee in the technical sense, his position being merely that of a superintendent or a manager. A Mutawa!li
has no power, without the permission of the court, to mortgage,
sell or exchange wakf property or any_ part thereof unless he is
expressly empowered by the deed of wakf to do so : ( ss. 202 and
207, Mulla's Principl.es of Mahomedan Law, 16th Edn.)
In Abdul Karim Adenwalla v. Rahimabai (1), a distinction
·was made between a settlor belonging to the Hanafi sect reserving for his own maintenance and support during his lifetime the
income of the trust property and has reserving for his absolute use
income of the whole of the property during his lifetime. It was
·pointed out that a Hanafi Mussalman was not permitted to follow
the latter course and it was only when he reserved the income
for his maintenance and support that the provisions of the
Mussalman Wakf Validating Act, 1913 would not be offended,
·There would be a difference in law between these two provisions;
if a settlor reserved to himself income for his own maintenance
and support that would not be transferable as property under tlte
·Transfer of Property Act nor would it be attachable under the
provisions of the Civil Procedure Code.
If he, however, reserved
·for himself a life interest, s. 6 of the Transfer of Property Act
(I) 48 Born. L.R. 67.
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G. H. ARIFF v. C.W.T. (Grover, J.)
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and s. 60 of the Code with regard to the non-transferability and
non-liability to an attachment would not be attracted.
The crux
of the matter, according to Mr. Sen, is that the aliquot share of
in~ome under the deeds executed in the present case was reserved
for the maintenance and support of the wakf and other beneficiaries during their lifetime. It is pointed out that if the provisions contained in cl. (5) of the deed of wakf were not to be read
in that manner, the deed would be rendered void a result which
has to be avoided by the courts. It is thus contended that the
right, in question, is a right to future maintenance measured by
the aliquot part of the income and it is neither partible nor alienable, and is one which is wholly personal to the beneficiary. It
lacks the basic attribntes of property.
Now "property" is a term of the widest import and subject to
any limitation which the context may require, it signifies every
possible interest which a person can clearly hold or enjoy. The
meaning of the word "property" has come up for examination before this Court in a number of cases. Reference may be
made to one of them in which the question arose whether MahantD
ship or Shebaitship which combines elements of office and property would fall within the ambit of the word "property" as used
in Article 19(1)(f) of the Constitution. It was observed in
the Commissioner, Hindu Religious Endowments, Madras v. Shri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt(') that there
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was no reason why that word should not be given a liberal and·
wide connotation and should not be extended to those wellrecogniscd types of interests which had the insignia or characteristics of proprietary right. Although Mahantship was not herit-
. able like the ordinary property, it was still held that the Mahant
was entitled to claim protection of Art. 19(1 )(f) of the Constitution. It is stated in the Halsbury's Laws of England, Vol. 32
3rd Edn. page 534 that an annuity (which is a certain sum of
money payable yearly either as a personal obligation of the granfor or out of property not consi-ting exclusively of land) can be
an item of property separate and distinct from the beneficial interests therein and from the funds and other property producing it.
It is property capable of passing on a death and can be separately valued for the purpose of estate duty.
The only direct case on the point under consideration is :i
decision of the Bombay High Court in Commissioner of Wealth
Tax, Bombay City v. Purshottam N. Amersey and Another(2 ).
There the deed of settlement provided thai the trustee; shall apply
the net income from the fund for the support, maintenance and
advancement in life and otherwise for the benefit of the settlor and
H
his wife etc. · It was held that the definition of "assets" in s. 2 ( e)
and that of "net wealth" in s. 2(m) were comprehensive provi-
(1) [1954] S.C.R. 1005.-1019,
(2) 71 I.'f'.R. 180.
L l Sup Cl/70-3
26
SUPREME COURT REPORTS
[1970]2 S.C.R.
sions and all assets were includell in the net wealth by the very
definition. Therefore, when s. 3 imposed the charge of wealth
tax on tlie net wealth it necessarily included in it every description of property of the assessee, movable and immovable, barring
the exceptions stated in s. 2(e) and other provisions of the Act.
We are in entire concurrence with that view. There is no reason
or justification to give any restricted meaning to the word ·"asset"
as defined by s. 2 ( e) of the Act when the language employed
shows that it was intended to include property of every descrip-
:ion. On a proper construction of the relevant clauses in the
wakf deed we are not satisfied that the aliquot share of the income
provided for the beneficiaries was meant merely for their maintenance and support.
But even on the assumption that it was s1·
intended or to preserve the validity of the deeds it should be so
construed the right to the share of th.e income would certainly be
an asset within the meaning of s. 2 ( e) and wou.ld be liable to L.·
included in the net wealth of the assessee.
Nu-. Sen has laid emphasis on the language of s. 7 ( 1) of the
Act and has contended that the right to a share in the income is
not capable. of any valuation and the price which it would fetch,
if sold in the open market, could not possibly be ascertained.
Such an argument was fully examined in the Bombay case(')
in which the High Court referred to the provisions of the English
statutes, w1'ich were in pari materia as aim decisions given by
the English Courts including the one by the House of Lords
(Commissioner of Inland Revenue v. Crossman) ( 2). It has been
rightly observed by the High Court that when the statute uses the
words "if sold in the open market" .it does not contemplate actual
sale or the actual state of the market, but only enjoins that it
should be assumed that there h an open market and the property
can be sold in such a market and on that basis, the value has to
be found out. It is a hypothetical case which is coniemplated
and the Tax Officer must assume that there is an open market in
which the asset can be sold.
A faint attempt was made to invoke the exception contained
in s. 2 ( e) by suggesting that the right to receive a share of the
income was a mere right to an annuity where the terms and
conditions relating thereto precluded the commutation of any portion into a lump sum grant.
The High Court in the judgment
under appeal dwelt at length on the true meaning and import of
the exp1ession "annuity" and negatived that suggestion.
The
burden of the argument was and is that the word "annuity" should
be given its popular and dictionar; meaning and not the signification which it has assumed as a legal term owing to judicial interpretation. Such a contention has only to be stated to be rejected
{I) 71 l.T.R. 180.
(2) (1937) A.C. 26.
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G. H, ARIFF v. C.W.T. (Grover, J.)
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because it is well settled that where the legislature uses a legal
term which has received judicial interpretation, the courts must
assume that the term has been used in the sense in which it has
been judicially interpreted.
For the reasons given above, the appeals fail and are dismissed
with costs. (One hearing fee.)
Y.P.
Appeals dismissed.