PATHAK, J. : This is a reference made by the Income-tax Appellate Tribunal under Section 66(1) of the Income-tax Act, 1922.

2. The assessee is a registered firm consisting of six partners, one of whom, Nanhi Devi, enjoys a share of four annas in the firm. On Bhado Sudi 13, Sambat 2010, the account of Nanhi Devi in the books of the assessee firm disclosed an opening credit balance of Rupees 1,57,056-14-6. On the same day, her account was debited with a sum of Rs. 1,01,000 and various sums totalling this amount were credited in the accounts of different persons in the books of the firm, among them being a sum of Rs. 15,000 credited in the account of the deity Sri Parmanand Behariji Maharaj. The sums were credited in these several accounts at the instance of Nanhi Devi as gifts made by her. Excepting the deity, the recipients of the remaining sums were the descendants of the brother of Nanhi Devi's husband, Nanhi Devi herself being a childless widow. The transfer entries in the cash book of the firm were signed by the donees personally and where they were minors were signed by their natural guardians. In the case of the deity, however, it seems that one Sri Ram Gupta appended his signature. Although it was alleged that Sri Ram Gupta was the duly constituted trustee on behalf of the deity no evidence was produced in support of the allegation.

3. In the assessment proceedings for the year 1955-56 the firm claimed a deduction of Rs. 4,370 as interest paid on the sums standing to the credit of some of these donees and the deity. The claim was disallowed by the Income-tax Officer and by the Appellate Assistant Commissioner on appeal. The Tribunal allowed the claim in respect of the interest credited to the several donees but rejected it in respect of the interest credited in the account of the deity. For the assessment year 1957-58, with which this reference is concerned, the Tribunal similarly disallowed the claim to deduction of the interest credited in the account of the deity. The Tribunal took the view that acceptance of the gift on behalf of the deity was necessary to constitute a gift in law, and found that there was no evidence of such acceptance. It held, therefore, that Nanhi Devi had not divested herself of the ownership of the fund credited to the account of the deity. It repelled the contention of the assessee that S. 322 of the Transfer of Property Act did not apply to Hindu religious endowments.

4. At the instance of the assessee, the following question has been referred :

"Whether on the facts and the circumstances of the case, there was a valid gift in favour of the idol Sri Parmanand Beharrji Thakurji Maharaj by Smt. Nanhi Devi ?"

5. What constitutes a "gift" has been defined in S. 122 of the Transfer of Property Act. That there may be a gift there must be a transfer of moveable or immoveable property. What is a "transfer of property" has been defined in S. 5. It is an act by which a living person conveys property to one or more living persons. And the words "living person" have been defined in that provision to extend to a company or association or body of individuals, whether incorporated or not.

6. Now it seems to us that a deity is neither a "living person" within the natural meaning of those words nor is it so within the scope of their extended definition. In their natural meaning, the words "living person" cannot apply to a deity. The words must refer to a person who is capable of death. The words "living" is used in contradistinction to "dead".. It is not possible to conceive of the birth or death of the deity. According to the fundamental notions of Hindu religious thought the deity always was and always will be. It was observed in Narasimhaswami v. Venkatahngam, ILR 50 Mad 687 : (AIR 1927 Mad 636 (FB)), that "by no stretch of imagination legal or otherwise, can it be said (hat the Almighty is a living person within the meaning of the Transfer of Property Act." And the entities mentioned in the extended de