JUDGMENT

Teunon, J. - These second appeals arise out of certain suits brought by tax--payers occupying holdings within the Joynagar Municipality to have it declared that the assessments made upon them by the Commissioners in respect both of personal tax under the provisions of Sections 85 and 87 of the Bengal Municipal Act and also of latrine fees or tax under the provisions of Chapter IX are illegal and ultra vires. As regards the personal tax, the plaintiffs have succeeded in both the lower Courts, while as regards latrine tax they have failed in all cases but one. The appeals to this Court have been preferred by the Municipal Commissioners.

2. As regards latrine tax, the point is a small one. The holding in question was valued at Rs. 436. The scale fixed by the Commissioner under the provisions of Section 321 is 2 par cent. on the annual value. In the present oases the fee should, therefore, have been, say, Rs. 8-11-6, while the assessment is Rs. 8-12-0. As it has been found that, as regards latrine tax or fees, the Commissioners have proceeded on correct principles we are of opinion that the above small error in calculation should not have bean held to vitiate the whole assessment. The assessment will be reduced by the sum illegally added, that is, by a sum of six pies.

3. The substantial question in the appeals then is, whether the plaintiffs--respondents have succeeded in showing that, in assessing them to the tax upon persons, the Commissioners have acted otherwise than in accordance with the provisions of the law. This question again depends upon the construction to be placed upon the words in Section 85 "according to their circumstances and property within the Municipality."

4. It is now settled law Deb Narain Dutt v. Chairman of the Baruipur Municipality 12 Ind. Cas. 32 : 39 C. 141 that the words "within the Municipality" govern both "circumstances" and "property", and in the same case Deb Narain Datta v. Chairman of the Baruipur Municipality 20 Ind. Cas. 264 : 41 C. 168 : 17 C.W.N. 1230 : 19 C.L.J. 205, and also in the case of Chairman of Giridih Municipality v. Srish Chandra Mozumdar 35 C. 859 : 12 C.W.N. 709 : 7 C.L.J. 631, it has further been held that the word "circumstances" must be interpreted to be in substance the eqivalent of "means". In reliance on an earlier case. Kameshwar Pershad v. Chairman of the Bhabua Municipality 27 C. 849 : 14 Ind. Dec.(N.S.) 556, the contention of the plaintiffs--respondents here and in the Courts below was, and is, that the word "circumstances" (or "means") within the Municipality "must further be restricted to income earned, or accruing from sources, within the Municipality." On its own facts the case cited wan, no doubt, rightly decided, but the essential distinction between that case and the present cases is, that in the former the tax payer, though occupying a holding for business purposes within Bhabua, was resident elsewhere, while here the plaintiffs tax payers are resident in their holdings within Jaynagar, To their homes in Jaynagar they bring the whole of their income no matter where earned and no matter from what source derived, income thus brought within Jaynagar there to be spent and enjoyed, in our opinion, becomes part of their "means" or circumstances" within Jaynagar and liable to assessment there u/s 85.

5. Now, all that the plaintiffs have succeeded in showing is, that the Commissioners in making the assessments in question did not limit themselves to income earned, or derived from sources within the Municipality, but took into account also the income brought into and spent within the Municipality. This, in our view, the Commissioners were entitled to do, and the plaintiffs have made no attempt to show that, when such out side income is taken into account, the assessments are inequitable. On the contrary, the suggestion made that the Commissioners had acted arbitrarily and out of malice has been negatived.

6. In the result, with the slight modification indicated in