The circumstances and property of a person within the municipality must depend upon the facts of the particular case, and the assessment of the tax was justified based on the available circumstances and property within the municipality.

JUDGMENT

1. The appellants who are three brothers instituted a suit against the Chairman and Commissioners of the Patna Municipality for, amongst others, a declaration that the assessment of a personal tax on them of Rs. 21 per quarter was illegal and ultra vires. The suit has been dismissed by both the Courts below. The appellants contend, in the first instance, that the imposition of a personal tax jointly against them is illegal as has been recently held to be so by this Court. We have considered the question whether we should allow the appellants to urge this contention now when it was not urged in any of the Courts below or even in their grounds of appeal to this Court. We think we shall not be justified in doing so.

2. They next urge that in assessing the tax the meaning of the expression "according to their circumstances and property within the municipality" appearing in Section 85 (a) has been misunderstood. Now the Subordinate Judge appears to have proceeded upon the following findings:

1. The zemindari properties of the plaintiffs let out in patna are situated outside the municipality. The income on this head is Rs. 5,487 odd a year. The rents from the patnidars are realized within the municipality at the house of the plaintiff. In 1328 the total realization amounted to Rs. 4,101 odd and in 1329, Rs. 18,921 odd.

2. In 1328 the plaintiffs received within the municipality.

Rs. 1,293 on account of interest on G. P. Notes.

Rs. 852 on account of dividends on shares in companies.

Rs. 108 on account of interest from the Post Office Savings Bank.

Rs. 7,624 on account of decrial and other dues.

Rs. 303 on account of interest from deposit in the Pabna Savings Bank.

Rs. 944 on account of fees of plaintiff 2 as managing Director of a Limited Company.

3. The total amount of patina rent payable to the plaintiffs for properties within the municipality is Rs. 642.

4. The collections made at the plaintiffs' house within the municipality are remitted to Tantiband from where they go back to the Bank within the limits of the municipality.

3. The question that arises is whether on these findings it can be said that the "circumstances and property" of the plaintiffs "within the municipality" can be fairly estimated at Rs. 9,000, so as to admit of a personal tax of Rs. 21 per quarter.

4. Upon the decisions that have been cited before us the following points may be treated as settled.

1. The word "circumstances" is equivalent to " means ": Chairman of Giridih Municipality v. Suresh Chandra [1908] 35 Cal. 859; Deb Narayan Dutt v. Chairman, Baruipur Municipality [1911] 39 Cal. 141.

2. The expression "within the municipality " governs both " circumstances " and "property": Debendra Nath Rai Chaudhuri and Others Vs. Pranab Chandra Ghose, Chairman, Taki Municipality, AIR 1921 Cal 567 .

3. The word "property" includes both real and personal property or estate and tangible as well as intangible rights of value: Chairman Giridih Municipality v. Suresh Chandra [1908] 35 Cal. 859.

4. When income or sale proceeds are brought from outside within the limits of the municipality and put into a Bank to the credit of a person it may without undue strain on the language, be described as his circumstance and property: Chairman Jalpaiguri Municipality v. Jalpaiguri Tea Co. Ltd. AIR 1922 Cal. 46 per Mookerjee, J. The proceeds so deposited are property within the municipality: per Buckland, J.

5. What constitutes the circumstances and property of a person within the municipality must on a large measure depend upon the facts of the particular case: Chairman, Jalpaiguri Municipality v. Jalpaiguri Tea Co. Ltd. AIR 1922 Cal. 46.

5. It is true that in assessing the assessee's circumstances and property within the meaning of Section 85 (a) of the Act his circumstances and property which are only within the municipality itself have to be considered Kameswar Pershad v. Chairman, Bhabua Municipality [1900] 27 Cal. 849 and Chairman, Rajpur Municipality v. Nagendra Nath Bagchi 23 C.W.N. 475.