JUDGMENT

COLLISTER, J. - The Commissioner of Income Tax has on his motion u/s 66 (1) of the Income Tax Act referred the following two questions to this Court for decision :-

"(1) Whether on the facts of the case stated below (i.e., in his statement of the case) the various co-shares owning the Mandi known as the Khalifa Mandi at Allahabad constitute an association of individuals within the meaning of Section 3 of the Income Tax Act ?

(2) If the answer to the above question be in the affirmative, whether in view of the fact that Mufti Mohammad Aslam has, subsequently to the issue and service of the notice u/s 2 (12) of the Income Tax Act, 1922, transferred his proprietary interest to his wife, the Income Tax Officer is debarred from treating him as the principal officer of the association within the meaning of the section quoted above ?"

The Khalifa Mandi consists in some shops, houses and a piece of open ground on which a market is held. It originally belonged to one Mufti Karim Quli who died in 1860. It appears that from 1925 onwards twenty-six persons have by right of association or transfer been the owners of this Mandi. Up to 1925 the owners used to lease the Mandi thekadars, but in that year they appointed a man named Kanhaiya Lal to collect rents and maintain accounts. These accounts were kept in Hindi; but subsequently, for the convenience of some of the co-sharers, another man, named Abdul Shakoor, was also appointed, who wrote in Urdu. It appears that Kanhaiya Lal has now resigned, but we do not know the date of his resignation and we do not know whether Abdul Shakoor is still in the employment of the owners.

As regards question No. (1) the learned counsel for the department contends that an association of individuals within the meaning of Section 3 of the Income Tax Act will cover any case where a number of persons have a specified but undivided share in property which produces income; but he has not been able to show us any authority for this definition. Taken by itself, it cannot be denied that the expression is capable of a very wide interpretation, but having in view its context and the Act as a whole, we do not think it was the intention of the Legislature that the words should have so comprehensive a meaning. Originally the words used in the Act were "individuals, company firm and Hindu undivided family", but under an Amending Act of 1924 (II of 1924) the words "individual, Hindu undivided family, company, firm and other association of individuals" were substituted. There is no comma after the word "firm" and from this as well as from the fact that the words "Hindu undivided family" have been transposed to a higher position in the sentence it must be inferred that it was the intention of the Legislature that the expression "other association of individuals" should be ejusdem generis with the word immediately preceding, i.e., the word "firm". Thus, before there can be an association of individuals within the meaning of the section, it must first be shown that the association has at least some of the attributes of a firm or partnership, though not in the strictly legal sense of the term. Learned counsel for the department has referred us to the following cases : Commissioner of Income Tax, Madras v. Mohideen Sahib of Bellary; Hotz Trust of Simla v. Commissioner of Income Tax; Commissioner of Income Tax, Madras v. Mrs. J. V. Saldhana; Trustees of the Tribune Press v. Commissioner of Income Tax; In the matter of Messrs. B. N. Elias and Mian Channu Factories Union v. Commissioner of Income Tax, Punjab. None of the above cases, with the possible exception of B. N. Elias, In re, is of much assistance to us in deciding the questions which are laid before us. In the last mentioned case it was held that persons who have joined themselves together in the purchase of a property and have remained joined as owners and for holding and using it in order to make gain thereby are an association of individuals within the meaning of Se