Meredith, J.This is a reference by the Income Tax Tribunal u/s 66(1), Income Tax Act, and the question which has been referred to us is:

Whether, in the facts and circumstances of the case, the net annual value of the house properties under the management of the Receiver has been rightly included in the assessees assessment

2. The assessee is a Hindu undivided family. The reference relates to the assessment for the charge year 1943-44. The assessee borrowed money from one Kumar Pramatha Nath Roy and others, and in order to secure the loan, executed a mortgage in the English form, transferring the mortgaged property absolutely to the mortgagees, but subject to a proviso for re-transfer to the mortgagor on payment of the mortgage-money as agreed. The mortgagees brought an action upon the mortgage on the original side of the Calcutta High Court, and, during the pendency of the suit the High Court appointed a Receiver of the rents, issues and profits of the immovable properties comprised in the mortgage with power to him to get in and collect the outstanding debts and claims due in respect of the said property and with all the powers provided for in Order 40, Rule 1, Clause (d), Civil P.C. The mortgagor defendants and all persons claiming under them were directed to deliver up quiet possession of the said property to the Receiver, and the Receiver was given liberty to pay one-half of the net collection accumulated in his hands after payment of his commission and other expenses to the plaintiffs and the other half to the defendants. The Receiver accordingly took possession.

3. In the relevant year of account the Receiver made certain realizations from sairat, fisheries, hats, etc. We are not concerned with that income. There was, however, house property in the possession of the Receiver, and the annual value was determined at Be. 6279 which sum was brought under assessment by the Income Tax Officer on the footing that the assessee was liable u/s 9 of the Act. The Appellate Assistant Commissioner reduced the quantum of the annual value to Rs. 4879 but maintained the decision that the assessee was liable to pay the tax.

4. The Tribunal took the same view, pointing out that, with regard to the annual value of the house property, u/s 9 it had got to be assessed upon the owner, and it was, they said, well established that, although in the case of an English mortgage there is an absolute transfer in favour of the mortgagee, yet the mortgagor still retains the legal estate in himself. They relied upon the decision of the Judicial Committee of the Privy Council in the case of AIR 1939 14 (Privy Council) .

5. Section 9(1), Income Tax Act, says that the tax shall be payableby an assessee under the head "income from property" in respect of the bona fide annual value of property consisting of any buildings or lands appurtenant there, to of which he is the owner, other than such portions of such property as he may occupy for the purposes of any business, profession or vocation carried on by him, the profits of which are assessable to tax, subject to the following allowances, namely: (it is unnecessary to specify them here).

6. The question before us, therefore, is merely who is to be regarded as the owner within the meaning of this section There are three possibilities only: the mortgagor, the mortgagee or the Receiver. Before the Tribunal it was contended for the assessee that the mortgagee was the owner. Before us the argument has been that the Receiver must be treated as the owner. In my opinion, the view of the Tribunal was correct that the mortgagor must be treated as the owner.

7. That the mortgagee cannot be the owner is, I think, clear from the decision of the Privy Council already referred to. In that case it was held that even in regard to a mortgage in English form executed in India the legal estate still vests in the mortgagor. That would not be so in England, where it would be only an equitable estate in the hands of the mortgagor. But there is no equitable estate recognised in the Transfer of Property Act, and what remains to the mortgagor must be regarded as legal estate.

8. It is, to my mind, further clear from the wording of Section 9 itself that the Legislature contemplated that where the property was subject to mortgage, the mortgagor would still be regarded as the owner liable to pay the tax. This seems to me evident from the provisions of Section 9(i)(iv) which are:

Where the property is subject to a mortgage or other capital charge, the amount of any interest on such mortgage or charge; where the property is subject to an annual charge not being a capital charge, the amount of such charge; where the property is subject to A ground rent, the amount of such ground rent, and where the property has been acquired, constructed, repaired, renewed or reconstructed with borrowed capital, the amount of any interest payable on suck capital.

It will be noticed that the word "mortgage" is used without any qualification or limitation to any particular form of mortgage, and will, there, fore, include a mortgage in English form. The provision means, therefore, that where the property is under mortgage the person liable for the tax will be entitled to an allowance for the amount of any interest on the mortgage. This can only refer to the mortgagor who is liable for the interest. So, for property subject to a mortgage, the mortgagor is the person liable for tax within the meaning of Section 9.

9. With regard to the contention that the Receiver should be regarded as the owner, this has been put forward on the view that the word "owner" in Section 9 is not used in the strict sense. There is no warrant for any such contention. In (1941) 9 ITR 695 (Privy Council) Sir George Rankin said with reference to Section 9, In-come-tax Act:

Their Lordships cannot accept the suggestion that because the statute to be interpreted is an Income Tax. Act broader or more general notions of ownership than the Hindu Law affords are to determine the matter. The Act is an Indian Act, and the distinction takes its meaning from the Hindu Law.

10. In that case, moreover, it was laid down that the word "owner" in Section 9 means the owner of the property itself and not the owner of the annual value, so that, in ascertaining who is liable, you have not to look to the receipt of the income from the property, or anything of the sort, but to the ownership of the property itself, and it was held in the case in question, which was that of an impartible estate, that the joint family was liable as owner of the property, and not the holder for the time being, who received and controlled the income.

11. It is hardly necessary to observe that a Receiver appointed by the Court is in no sense the owner of the property. He is merely an officer of the Court who is managing the property for the time being under the orders of the Court. His possession is the possession of the Court. But it could hardly be conteded that the Court is the owner of the property.

12. That a Receiver appointed under Order 40,1 Rule 1, Civil P.C. is not an owner indeed appears from the wording of the rule itself. Rule 1(1)(d) provides that the Court may by order

confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.

The use of the words "as the owner himself has" shows clearly that the Receiver is some one other than the owner.

13. If authority be needed with regard to the position of a Receiver, it is to be found in Eastern Mortgage and Agency Co. Ltd v. Muhammad Fuzlul Qarim AIR 1926 Cal. 885). At p 931 the learned Jucigps say:

The nature of the office of a receiver is simply this; that he is an impartial person appointed by the Court to collect and receive pending the proceedings the rents, issues and profits of land or personal estate or other things in question which it does not seem reasonable to the Court that either party should collect or receive. The object sought by the appointment of a receiver is the safeguarding of property for the benefit of those entitled to it. His possession is on behalf of and foe the benefit of all the parties to the suit in which he is appointed, and is the possession of all the said parties according to their titles. The property in his hands is in custodia legis for the person who can make a title to it. The title of the real owner is in no way affected either in theory or on principle by his appointment. He collects and receives the rents, issues and profits not upon his own title but upon the title of some persons, parties to the action." With these observations I respectfully agree.

14. Several cases have been cited before us with which I do not consider it necessary to deal in detail: Trustees of the Sir Currimbhoy Rbrahim Baronetcy Truit v. Commissioner of Income Tax Bombay AIR 1931 P.C. 116 refers to trustees whose position is entirely different from that of a receiver. In the matter of the Official Assignee for Bengal (1937) 5 I.T. 233 relates to the official assignee in pendency whose position again is not analogous to that of a receiver.

15. In my opinion, the Tribunal was right in the view which it took. "The owner under the terms of the section must be the mortgagor and cannot be either the mortgagee or the receiver appoint d by the Court. Before I conclude it is perhaps desirable to mention that it is not contested that the assessee will be entitled to the relevant proportionate allowances under the provision I have already referred to, Section 9(i)(iv).

16. I would answer the reference in the manner I have above indicated. The Commissioner of Income Tax is entitled to his costs which we assess at Rs. 250.

Agarwala C.J.

17. I agree.