A Hindu cannot create a joint tenancy by a grant inter vivos or by a will, and the presumption is in favor of a tenancy in common. This presumption can be rebutted only by a clear indication of an intention to create a joint estate.

( 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 u