Civil Appeal No 3947 NT of 1987
From the Judgment and order dated 2781986 of the Bombay High Court in Appeal No 676 of 1986
BB Ahuja CV Subba Rao and Ms A Subhashini for the Appellants 
NA Palkhiwala SP Mehta Ms A Vasantji and Praveen Kumar for the Respondent
The Judgment of the Court was delivered by 117 SABYASACHI MUKHARJI J
Special leave granted
This is an appeal from the judgment and order of the Division Bench of the High Court of Bombay whereby the Division Bench concurred with the judgment and order of the learned Single Judge of the Court
The respondent herein had entered into an agreement on or about 5th May 1978 with Thai Rayon Company Limited at Thailand hereinafter called the foreign company
It was engaged in the business of manufacturing and selling Stapple Fibres at Bangkok in Thailand
The agreement recited that the respondent as he was described was a technician holding a Bachelor s degree from the Massachusetts Institute of Technology USA and has had several years of experience in the business of manufacturing and selling Stapple Fibres through his association with companies engaged in similar business and the foreign Company as referred to in the agreement aforesaid as the employer  had approached him ie the technician to make available to the employer  his services in Bangkok on certain terms and conditions inter alia that the Thai Company would pay to the respondent remuneration of 12000 per annum in quarterly instalments and it would be receivable at Bangkok
The agreement was for a period of three years with liberty to either party to terminate it after six months  notice
It was subject to the approval of the Governments of Thailand and India and other authorities if any
The respondent applied to the Central Government in India for its approval of his employment with the Thai Company under the agreement for the purpose of securing the benefit conferred by section 80 RRA of the Income Tax Act 1961 hereinafter called the Act 
On June 8 1979 the Government informed the respondent that it was unable to approve the employment with the Thai Rayon Company Limited Bangkok as per the terms and conditions contained in the agreement dated 5th May 1978 for the purpose of section 80 RRA of the Act as the section according to Government contemplated rendering of service outside India in the status of an employee 
It was further stated that it was seen that the status of the respondent under the foreign employer was that of a consultant  and not of an employee 
Therefore the remuneration contemplated under section 80 RRA was from an employer and would not be applicable to the instant case of the respondent according to the Government
Thereafter it appears after hearing the respondent the 118 Government by its letter dated 17th February
1981 observed that the benefit of section 80 RRA of the Act could not be given to the respondent for the reason stated in that letter
Was the Government right in the view it took is the question here The learned Single Judge of the High Court quashed the communication refusing to accord approval and directed the Government to reconsider the application of the respondent
There was a Letters Patent Appeal before the Division Bench of the High Court
The Division Bench found no reason to interfere with the view expressed by the learned Single Judge and accordingly the appeal was dismissed
Aggrieved thereby the appellant who was the respondent before the trial court has come up to this Court
We are concerned in this appeal with the construction of section b 80 RRA of the Act
The said section is as follows 80 RRA
1 Where the gross total income of an individual who is a citizen of India includes any remuneration received by him in foreign currency from any employer being a foreign employer or an Indian concern for any service rendered by him outside India there shall in accordance with and subject to the provisions of this section be allowed in computing the total income of the individual a deduction from such remuneration of an amount equal to fifty per cent thereof Provided that where the individual renders continuous service outside India under or for such employer for a period exceeding thirty six months no deduction under this section shall be allowed in respect of the remuneration for such service relating to any period after the expiry of the thirty six months aforesaid
2 The deduction under this section shall be allowed i in the case of an individual who is or was immediately before under taking such service in the employment of the Central Government or any State 119 Government only if such service is sponsored by the Central Government ii in the case of any other individual only if he is a technician and the terms and conditions of his service outside India are approved in this behalf by the Central Government or the prescribed authority
Explanation For the purposes of this section a foreign currency shall have the meaning assigned to it in the Foreign Exchange Regulation Act 1973 46 of 1973 b foreign employer means i the Government of a foreign State or ii a foreign enterprise  or iii any association or body established outside India c technician means a person having specialised knowledge and experience in i constructional or manufacturing operations or mining or the generation or distribution of electricity or any other form of power or ii agriculture animal husbandry dairy farming deep sea fishing or ship building or iii public administration or industrial or business management or iv accountancy or v any field of natural or applied science including medical science or social science or vi any other field which the Board may prescribe in this behalf who is employed in a capacity in which such specialised knowledge and experience are actually utilised
 120 The only question involved in this appeal is whether any remuneration was received by the respondent in foreign currency from his employer being a foreign employer for service rendered by him outside India
Mr Ahuja counsel for the revenue contended that the remuneration received by a part time consultant from a foreign employer or an Indian concern abroad cannot include remuneration paid to a person
Mr Ahuja further submitted that this section was really a counter part of section 106vii of the Act
He further submitted that it should be construed to be confined to deduction to be given only in the case of remuneration given to an employee and not the fees paid to a consultant or a technician
We are unable to accept this contention
It has been specifically made clear that remuneration due should be chargeable under the head Salaries for the services rendered as a technician in section 106via
Section 80 RRA does not use these phrases
Apparently advisedly therefore it must follow that it did not cover fees received by the consultant for the services rendered outside India
An analysis of section 80 RRA reveals that in order to be entitled to deductions at the rate enumerated in the section by the respondent the sum must be i remuneration ii received by him in foreign currency iii from any employer being a foreign employer or an Indian concern for any service rendered by him outside India
Furthermore the terms and conditions of his service outside India must be approved by the Central Government
Further in the case of the respondent the deduction of the section would not be allowed in respect of the remuneration if such services related to any period after the expiry of the 36 months
The respondent was not employed beyond a period of 36 months
Indisputably the sum concerned in this appeal being fee was remuneration in the sense being amount paid in lieu of services rendered 
The sum in question was received in foreign currency
There is no dispute as to that
The only question is whether the sum was received from any employer 
The other requirement is that the sum should be received for the services rendered outside India
There is no dispute as to that
The only question that requires consideration in the background of indisputable facts in this case is whether the sum received by the respondent was from an employer 
In other words whether Thai Company was the employer of the respondent
On behalf of the revenue it was submitted by Mr Ahuja that it was only as a counter part of section 106via and that the section should be so considered properly
Mr Palkhiwala appearing for the respondent pointed out the object of section 80 RRA of the Act was manifest to encourage firstly earning 121 of foreign exchange by India secondly bringing that currency by Indian nationals from abroad to India and thirdly to improve the status of the Indians abroad and increasing the market of Indian technician
It appears to us to be plausible object in the present socio economic context
We find that the amplitude of the expressions employee and employer covers the cases of consultant or technician
We find in the scheme of the section nothing to warrant any exception as contended for by the revenue
If we read the section with the object of the section in view as suggested by Mr Palkhiwala then there is no warrant to restrict the meaning in the manner canvassed by the revenue before us
Mr Ahuja however drew our attention to the objects appearing in clause 31 of the Finance Bill 1975 which later on became the Act
We find nothing in clause 31 to suggest a restricted meaning as canvassed by Shri Ahuja
The relevant portion of clause 31 reads as follows 31
Tax relief in respect of remuneration received from foreign employees by Indian technicians etc
At present Indian technicians etc who work for a short period during a financial year with a foreign Government or a foreign enterprise are liable to Indian tax if they remain resident in India for tax purposes in that year on the whole of the remuneration received by them from the foreign employer without any allowance in respect of expenditure incurred by them out of such remuneration for meeting higher living costs and other essential expenditure in foreign countries
To relieve this hardship the Bill seeks to make a provision in the Income tax Act for allowing a deduction in the computation of the taxable income of 50 per cent of the remuneration received by them from a foreign Government or a foreign enterprise or any association or body established outside India
We find nothing to warrant a restricted construction as canvassed by Mr Ahuja
We were also referred to the speech of the Hon ble Minister introducing the Bill before the Parliament where the Hon ble Minister inter alia stated as follows There are at present certain income tax exemption limits applying to salaried assessees relating to house rent allowance and leave travel concessions
These are being liberalised
Indian technicians employed abroad are also proposed to be given some tax relief
 122 Shri Ahuja contended that it was only to encourage salaried employees who were going abroad and the cost of living was so high abroad to encourage them to get an exemption from tax on the salary earned abroad working as a technician that this provision was introduced
But this does not indicate that any limitation was intended to be confined only to the salaried employee and not extended to any technician or consultant employed abroad for the period stipulated in the section
We find that there is no warrant in the section to restrain the expression remuneration received from a foreign employee only to the salary received by an employee
In our opinion employment as a technician for the purpose indicated by Shri Palkhiwala could also be an object of the Act and in such a case the fee received by consultant or technician would also come within the purview of the section concerned
In Aiyar The Lexicon
1940 Ed
at page 387 it has been stated that an employer is one who employs one who engages or keeps men in service one who uses or enjoys the service of other persons for pay or salary
The words employer  or employee  are used not in any technical sense
In Shri Chintaman Rao  Another vs The State of Madhya Pradesh  at page 1346 of the report it was observed that the concept of employment involved three ingredients 1 employer 2 employee and 3 the contract of employment
The employee is one who works for other for hire
The employer is one who employs the services of other persons
In the context of this act therefore the expression employee  will include a consultant or a technician employed by the foreign Company because he would be working for other for hire
It is true that the respondent may serve more than one master
A man may in certain circumstances serve two masters very often he does serve many
The expression to employ has been considered in Ellis vs Ellis  Co and does not mean generally to find actual employment it rather means to retain and pay a person whether employed or not but if employed then to be employed in the work only in respect of which contract is made
Medical advisers may be employed at a salary to be ready in case of illness members of theatrical establishments
in case their labour should be needed household servants in performance of their duty when their masters wish in these and other similar cases the requirement of actual service is distinct from the employment by the party employing
In an agreement to retain and employ employ means only to retain  in the service and is mere tautology 
See in this connection Stroud s Judicial Dictionary 4th Edition Vol 2 at page 893
The expression however must 123 depend upon the context of the particular provision in which the expression appears
lt was held in England that an engineer appointed by a local authority to supervise the execution of works but not subject to the local authority s supervision is nevertheless an employee  within the meaning of section 401 of the Local Government Superannuation Act 1937 in Morren vs Swinton and Pendlebury BC 1965 I WLR 576
In Chambers 20th Century Dictionary employ has been indicated to mean to occupy the time or attention of
employment means an act of employing
In the Concise oxford Dictionary employee means a person employed for wages
Employ means use of services of person
It follows therefore that it comprehends whole time servant or part time engagee
It is significant that section 80 RRA of the Act uses the expression remuneration and not salary to be entitled to deduction
In the aforesaid view of the matter we see no warrant to restrict the meaning of the expression remuneration to only salary received by an employee abroad
The literal meaning is clear we need not bother any more for the intention or the purpose
The intention in our opinion is writ large
In principle also we are unable to find any rationale or the reason for the distinction sought to be made on behalf of the revenue
In the aforesaid view of the matter we are of the opinion that the High Court was right in dismissing the appeal and we find no reason to interfere with the order of the High Court
The appeal therefore fails and is accordingly dismissed without any order as to costs
SL Appeal dismissed


Summary:
 The father of the appellant Thakore Shri Vinayasinhji the Ruler of the former Mohanpur State gifted certain properties to his youngest son the respondent No 1 by a deed of gift dated May 14 1951 and also bequeathed certain properties to the respondent No 1 and his mother by his will dated May 22 1951
The father died in 1955 whereupon the appellant became the Ruler
He instituted a suit challenging the validity of the said deed of gift and the will on the ground that as the rule of primogeniture applied to the Raj Estate he being the eldest son succeeded to the Gadi  and that his father the former Ruler had no power of alienation either by gift or by will and accordingly the disposition made by him by the above said deed of gift and the will in favour of his younger brother the respondent No 1 was illegal and invalid
The Civil Judge decreed the suit in part declaring that the deed of gift and the will were illegal and directing the respondent No 1 to hand over to the appellant the possession of the properties mentioned in the deed of gift
The Civil Judge passed a decree for mesne profits but refused the prayer of the appellant for an injunction on the ground that he had failed to prove his possession of the properties mentioned in the plaint
Being aggrieved by the judgment and decree of the Civil Judge the respondents preferred an appeal to the High Court
The High Court held that the former Ruler had the power of alienation and accordingly the deed of gift and the will impugned were legal and valid
The judgment and decree of the Civil Judge were set aside
Thereupon this appeal was filed before this Court by special leave against the decision of the High Court
During the pendency of the appeal the appellant Thakore Harnathsinhji Vinayasinhji died leaving behind the present appellants who were already on record as his heirs and legal representatives
1111 Dismissing the appeal the Court  HELD It was not disputed that the Raj Estate of which the deceased appellant was the Ruler is impartible and that the rule of primogeniture one of the essential characteristics of an impartible estate is also applicable
The question involved for the consideration of the Court was whether the holder of an impartible estate to which the rule of primogeniture applies as an essential characteristic of such an estate could alienate the properties comprised in the estate by a deed of gift or will
1115D E The law has been clearly and succinctly stated in the illuminating judgment of Sir Dinshah Mulla in Shiba Prasad Singh vs Rani Prayag Kumari Debi AIR 1932 P 216
There is no restraint on the power of alienation of the holder of the impartible estate as any restraint on the power would be incompatible with the custom of impartibility
The impartible estate though ancestral is clothed with the incidence of self acquired and separate property except as regards the right of survivorship which is not inconsistent with the custom of impartibility
The right of survivorship has been held to be a birthright and is not a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband s estate
1116G H 1117A In Rani Sartaj Kuari vs Deoraj Kuari 15 IA 51 the right of alienation of the holder has been recognised and in Shiba Prasad s case Supra such right of the holder is reiterated
Impartibility is essentially a creature of custom which supersedes the general law
It is true that the impartible estate retains the character of joint family property only to the extent that there is a right of survivorship by birth to the junior members of the family but as the Privy Council has observed in Shiba Prasad s case supra that in all other respects it is clothed with the incidents of self acquired and separate property it follows that the holder of the impartible estate has the unlimited right of alienation not only by transfer inter vivos but also by will
When the holder has the power to dispose of the estate during his life time it would be quite illogical to hold that he would not have the power of disposition by a will
The power of alientation has been recognised without any reservation in as much as such power is not incompatible with the impartibility of the estate
The rights available to the member of the Hindu joint family under the Mitakshara law have been curtailed to a great extent as most of the said rights would be inconsistent with the nature and character of the estate
1117E G 1118D E 1112 The case of Sri Raja Rao vs Venkata Kumari 26 IA 83 is an authority for the proposition that a holder of an impartible estate cannot only dispose of the estate by transfers inter vivos but also by a will and that when such a disposition is made by a will it defeats the right of survivorship
It may be that the holder of an impartible estate can defeat the right of survivorship by leaving a will and such right cannot be said to have been founded on any logical basis but it has to be borne in mind that the whole concept of impartibility is a creature of custom including the right of alienation of the holder of such estate
In matters of custom it is hardly possible to justify every incident on some logical basis
1120B C There can be no doubt that an impartible estate is not a separate or self acquired property of the holder thereof but it has been observed by Sri Dinshal Mulla in Shiba Prasad s case supra that it is clothed with the incidents of self acquired and separate property
One of such incidents is that the owner is entitled to dispose of the same in whatever manner he likes either by a transfer during his life time or by a will
1120D E The right of a coparcener to take by survivorship can be defeated under certain circumstances as enumerated in Mulla s Hindu Law
When under certain circumstances the right of a coparcener to take by survivorship can be defeated no exception can be taken if the right of survivorship of junior members of an impartible estate to succeed to it is defeated by the holder thereof by disposition by a will
1121E F In view of the decisions of the Privy Council and this Court it must be held that the holder of an impartible estate has the power of alienation not only by transfer inter vivos but also by a will even though the disposition by will may altogether defeat the right of survivorship of the junior members of the family 
1122B The appellants contended alternatively that by virtue of a family custom the holder of the impartible estate as in this case had no Ci power of alienation either by a transfer inter vivos or by a will and in support of this contention drew the attention of the Court to some correspondence between the original appellant since deceased and the political agent of the Mohanpur State
The appellants placed much reliance upon the above documentary evidence in proof of their contention that there was a family custom prohibiting alienation by the Ruler of the State
1122C D 1113 The correspondence related only to the question of granting jiwai maintenance to the younger son of the former Ruler
It appeared from the correspondence that the entire attempt of the appellant was against the quantum of maintenance proposed to be granted by the Ruler to his younger son
It was not the appellant s contention that in view of a family custom the Ruler had no right of alienation but his case was that in view of the annual revenue of the State the quantum of the jiwai would be out of proportion
It was only on this ground that he protested against the proposed jiwai
The correspondence referred to did not prove any custom of inalienability of the impartible estate
1123B D The appellants contended that as there was no instance of alienation till before the impugned deed of gift and will it should be presumed that there was a family custom of inalienability of the estate
More or less a similar contention made before the Privy Council in Protap Chander Deo vs Jagdish Chandra Deo 54 IA 289 was overruled by the Privy Council
There must be some positive evidence of such a custom
The correspondence relied upon as the evidence of the alleged family custom of inalienability was far from being such evidence the only question that formed the subject matter of all this correspondence related to the propriety of the question of jiwai
The appellants had failed to prove that there was any family custom of inalienability of the estate
1123D G The judgment and decree of the High Court were affirmed
1123G Rani Sartaj Kuari vs Deoraj Kuari 15 IA 51 Shiba Prasad Singh vs Rani Prayag Kumari Debi AIR 1932 PC 216 Collector of Gorakhpur vs Ram Sunder Mal AIR 1934 PC 157 Chinnathayi vs Kulasekara Pandiya Naicker 192 SCR 1952 241 Shri Kaja Rao vs Venkata Kumari 26 IA X3 Seth Lakshmi Chand vs Mt Anandi and others AIR 1926 PC 54 Lakshman Dada Naik vs Ramachandra Dada Naik 7 IA 181 MN Arya Murthi vs MN Subbaraya Setty
AIR 1972 SC 1279 Baijnath Prasad Singh vs Tej Bali Singh AIR 1921 PC 62 Protap Chandra Dao vs Jagdish Chandra Deo 54 IA 289 Mirza Raja Shri Pashavathi Viziaram Gajapathi Raj Manne Sultan Bahadur vs Shri Pushavathi Visweswar Gajapathi Raj  and Bhaiya Ramanuj Pratap Deo vs Lalu Maheshanuj Pratap Deo   referred to