JUDGMENT
S.C. Mohapatra, J.
1. A Hindu undivided family is the assessee in this case under the Income-tax Act, 1961, for the assessment years 1968-69 to 1975-76. In the reference applications under Section 256(2) of the Act for all the aforesaid years, this court called for separate statements on the following question of law arising out of the orders for the opinion of this court :
” Whether, on the facts and in the circumstances of the case, the jajamani income of the individual coparcener can be included in the taxable income of the Hindu undivided family ? ”
2. Since the same question is involved for each of the years, the references were heard together and are disposed of by this common judgment.
3. Priesthood is a hereditary source of earning of the members of the family since the time of ancestors. The male members act as priests for various families known as ” purohits ” and are remunerated for the same. In the year 1935, there was a partition among the members of the joint family. In the deed of partition dated March 13, 1935, the families of jajamans were partitioned areawise and all the householders of the eastern side of the Raja Street area known as Sankarpur and some houses in Pandara Street were allotted to be the jajamans of the assessee family and the male members of the assessee family were performing the acts of a priest in respect of those households.
4. Before the assessing authorities, the assessee claimed that the receipts from the jajamani are the personal income of the individual members of the family who threw the amounts received by them into the common hotchpot. Whether the income from the amounts thrown into the common hotchpot would be joint family income or not is not in dispute. The nature of the earning at the time of receipt is the subject-matter of dispute.
5. The assessing officer has not given any finding regarding the nature of the earning. The first appellate authority, the Appellate Assistant Commissioner, as well the second appellate authority, the Appellate Tribunal, have given specific findings in this respect. According to them, it is the custom and convention that male members of the priest family only can perform pujas and other religious functions like weddings and
sradha, etc., in the houses of the jajamans and this is also traditional. Jajamani or priesthood is a profession and avocation which involves exercise of a specified function confined to a class of persons known as priests. These people are trained from their childhood to perform religious ceremonies, auspicious functions and to invoke the blessings of the divine. Their specialisation lies also in performing highly technical and complicated functions involving recitation of vedic mantras and performances of skilled yagnic rites. The need for them on auspicious ceremonies like weddings is actually felt. Their specialised skill is necessary for the sradha ceremony. They perform pujas before deities. Thus, the priests are trained and skilled in the art of performing these vedic rites.
6. Since the persons acting as priests acquire a right to earn income by carrying on such profession only because of their birth in a particular family, it was held by the Appellate Assistant Commissioner that the income is joint family income. The second appellate authority, the Appellate Tribunal, found that jajamani is a profession which is a hereditary occupation of the assessee family. Thus, the right to receive income from such profession is a family asset from long back which has been acquired by partition since 1935. When this asset has not been divided, the coparceners were carrying on the profession on behalf of the family and were keeping the earnings in the common hotchpot and, therefore, such income is assessable in the hands of the assessee which is the Hindu undivided family.
7. From the finding relating to the nature of the earning from services as a priest, it is clear that the same is for personal service rendered to the particular jajaman, requiring personal skill and training of the purohit, on receipt of some return. This return is an earning by rendering personal service or skill and training of the individual purohit which is not possible by a person without learning and training. The earning is thus the individual income though the vritti or profession is hereditary and liable to partition.
8. The question has been finally answered by the Supreme Court in the decision in Lakshmi Chand Khajuria v. Smt. Ishroo Devi, AIR 1977 SC 1694, where, considering the decisions of the Bombay High Court in Ghelabhai Gaurishankar v. Hargowan Ramji [1912] ILR 36 Bom 94 and of the Allahabad High Court in Hanso Patak v. Harmandil Patak, AIR 1934 All 851, it was observed in paragraph 12 at page 1697 :
” Mr. Pai, counsel for the appellants, submitted that the High Court was in error in holding that item 1(a) of the properties is the self-acquired property of Mani Ram. According to learned counsel, the hereditary profession of Mani Ram was that of a priest and whatever he
earned while practising that profession and all his acquisitions should be held to be joint family property……In support of the contention that the
income derived from practice of a hereditary profession should be construed as ancestral property, learned counsel referred us to two decisions in Ghelabhai Gavrishankar v. Hargowan Ramji [1912] ILR 36 Bom 94 and Hanso Patak v. Harmandil Patak, AIR 1934 All 851. Neither of the cases support the contention of learned counsel. In the first case, the question that arose for consideration was the nature of the office of a hereditary priest. It was held that the hereditary right of the priest is immovable property. Chandavarkar J. pointed out that hereditary priesthood vested in particular families is regarded as vritti or immovable property but we do not find any support for the contention that the income of the hereditary priest will also be hereditary property. In fact, in Hanso Patak v. Harmandil Patak, AIR 1934 All 851, it has been made clear that in the United Provinces the income received as amounts paid by yajamans at their discretion either by way of charity or by way of remuneration for personal services rendered by the priest, cannot be claimed as of right, and cannot amount to family property. Chief Justice Sulaiman expressed his view that the income received as amounts paid by people at their discretion either by way of charity or by way of remuneration for personal services rendered cannot be claimed as of right and cannot amount to family property. Mukherji J., in a concurring judgment, after distinguishing Ghelabhai Gaurishankar v. Hargowan Ramji [1912] ILR 36 Bom 94, held that the income is ‘ vidyadana ‘ which is the same thing as ‘ gains of science ‘ or what has been acquired by exercise of learning cannot be divided by partition. We agree with the view thus expressed by the Allahabad High Court and find that the income from the practice of a hereditary profession will not be joint family property.”
9. Mr. Roy, learned standing counsel for the Revenue, relied upon the decision in Shibram Missir v. Tularam Missir, AIR 1980 Patna 237, where, although the decisions of the Bombay High Court and of the Allahabad High Court were considered, the decision of the Supreme Court has not been referred to. Besides, the Patna High Court was not considering the case of income of a priest who practises the profession based on learning and training. It was considering a case of income of a family of pandas of Deoghar. Since the question involved in the Patna decision is different, it will have no persuasive effect in this case especially in view of the binding precedent of the Supreme Court.
10. In view of the decision of the Supreme Court, the reference is to be answered in the negative to the effect that the jajamani income of the individual coparcener in this case cannot be included in the taxable income of the Hindu undivided family. The reference applications are, accordingly, allowed. No costs. K.P. Mohapatra, J. 11. I agree.