JUDGMENT This is an appeal by the defendant from the judgment and decree of the learned Additional District Judge, First Court, Howrah reversing the decision of the learned Munsif 'First Court' Howrah and remanding the suit for fresh trial. 2. The suit was brought by the two plaintiffs as shebaits representing the deity Sri Sri Iswar Ganesh Jiu Thakur against the Commissioners of the Municipality of Bally for a declaration that the imposition of municipal rate on the plaintiff's absolute debuttar estate being holding No. 1, Lala Babu Shire Road and the alteration enhancement of municipal rate without mutating the plaintiff's name in the municipal records and without service of the statutory notices are illegal and void and for injunction restraining the defendant from realising the rates so imposed by issuing distress warrant. The disputed holding comprises 11 chitaks 4 square feet of land with a two storied building and a temple on the top of the 1st floor. The plaintiff's case in brief was that Tinkari Modak was originally owner of the land of the disputed holding and he had a shoproom with C.I. roof thereon. After his death in the early part of 1966 his heirs constructed the present building on the same site and created the debattar estate by a deed of endowment intimation of which was given to the municipality by a pleader's letter dated 8.9.1966. But the municipality did not enter the name of the plaintiff deity in the municipal records as owner and occupier of the disputed holding. The plaintiff also claimed by a pleader's letter dated 17.12.1966 that the disputed holding was exempted from imposition of municipal rate as it was used exclusively as a place of worship to which the public had a right of free access without payment. But the municipality did not take notice of the plaintiff's claim for mutation or for exemption of the holding from payment of municipal tax. The plaintiffs shebaits came to know in March 1972 that the municipality has taken steps for issuing distress warrant to realise taxes allegedly due on the disputed holding from third quarter 1966-67 to third quarter 1971-72 at varying rates, without service of statutory notices on the plaintiffs for imposition of tax after creation of the debuttar estate or for alteration in the amount of tax. So the plaintiffs instituted the suit on 29.5.72 after service of notice under S. 535 of the Bengal Municipal Act by way of abundant caution although such notice was not required under the law. 3. The defendant contested the suit by filing written statement contending inter alia that no application was made by the heirs of Tinkari Modak intimating his death and devolution of his interest, that no pleader's letter dated 8.9.1966 intimating creation of the debuttar estate and applying for mutation of the plaintiffs' name in respect of the disputed holding was sent to the municipality and so the plaintiffs were not entitled to any statutory notice. It has been alleged that the disputed holding is not used exclusively as a place of worship to which the public have a right of free access without payment as there are shop rooms in the said holding were business carried on and residential quarters of the owners in 1st floor. So the disputed holding cannot be exempted from payment of municipal rate. 4. The learned Munsif after taking evidence from both parties came to the finding that as the holding in suit is not used exclusively as a place of worship which the public have a right of free access without payment, it is not entitled to exemption from imposition of municipal tax under S. 124(1) (b) of the Bengal Municipal Act and dismissed the suit. In appeal the learned Additional District Judge has held that the learned Munsif failed to frame issues and decide the questions as to whether the imposition of municipal rate on the disputed holding which is a debuttar estate and the alteration/ enhancement of rate without mutating the name of the plaintiff and giving notice to the shebaits were valid. He has further found that if the plaintiffs succeed in proving that the rent realised from the shoprooms in the ground floor of the disputed holding are spent for the purpose of worship, then it can claim exemption from tax under S. 124(1)(b) of the Act and the trial court should decide this point after framing issue and giving the parties opportunity to adduce further evidence. With these findings the first appellate court has remanded the suit to the trial court with direction to recast the issues and give opportunity to the parties to adduce further evidence only on the point as regards utilization of the rents realised from the tenants of the shoprooms in the ground floor of the disputed holding. 5. Before this Court the finding of the first appellate court that the disputed holding will be entitled to exemption from imposition of municipal rate if the rents realised from the tenants of the shop in the ground-floor of the holding are utilised for the worship of the deity has been assailed on behalf of the appellant municipality and in this connection reference has been made to the provisions of S. 124(1)(b) of the Bengal Municipal Act and Bench decision in the case of N. B. Asraf v. Commissioners of Nabadwip Municipality AIR 1959 Calcutta 361. It is submitted that in order to qualify for exemption every part of the holding must be used exclusively as a place of worship or its user must be such as to be exclusively referable to worship or to a place of worship and this essential requirement under S. 124 of the Act has not been fulfilled in the case of the disputed holding. On the other hand it is submitted on behalf of the respondents that the holding is entitled to exemption if a substantial portion of it is exclusively used as a place of worship and the income of the remaining portion is utilized for the purpose of worship. 6. Before dealing with the question of law arising from the controversy between the parties it is necessary to consider the relevant facts of the case. It has been found by both the courts below that the disputed holding comprises a two storied building with a temple on the top of the first floor in which the deity of Sri Sri Iswar Ganesh Jiu Thakur was installed by the heirs of late Tinkari Modak, that there is a staircase from the road through which the public can go to the temple and that there are two shop rooms in the ground floor in occupation of tenants one of which is used as a sweet meat shop by one of the plaintiffs shebaits and the other used as a part of a ration shop. The first appellate court has observed : "From the evidence adduced in this case we get that the deity is installed in a temple on the top of this building the first floor of which is also used for keeping the utensils and other articles of the deity. So, there is no dispute as regards user of the first and the top floor of this building for the purpose of worship of the deity". 7. But D. W. 1 deposing on behalf of the municipality has stated in cross examination as follows : – "There is a big room and a fali room in rhe first floor Some karmacharies one of them is named Shyam reside in the first floor. There are karmacharies of the Babus. Shyam is a salesman of the sweet meat shop situated in the ground floor" 8. It appears that the learned Judge has not considered the facts elicited in cross examination of D. W. 1 in making the observation that there is no dispute as regards user of the first floor for the purpose of worship of the deity. The courts below have found that the disputed holding is debuttar property of the deity. Ext. 2' is the deed of endowment dated 8.8.1966 and Ext. 3' is the connected rectification deed. Taken together the said documents provide that 25% of the gross income from the property shall be enjoyed by the co-sharer owners who are the dedicators, only two of whom were appointed shebaits and that "any shebait either male or female may conduct any business in any portion of the property without creating any disturbance in the mandir". The shebait has also been given right to induct tenants. The deed of endowment was executed by nine persons including five minors as successors-in-interest of the original owner Tinkari Modak. The transfer was made by the natural guardian on behalf of the minors. In this connection the learned Advocate for the appellant has referred to the evidence that permission of the court was not taken for transferring the interest of the minors by the purported deed of endowment as required under S. 8(2) of the Hindu Minority and Guardianship Act 1955. But as sub-s. (3) of S. 8 of the said Act provides that non-compliance with sub-s. (2) of S. 8 does not render the deed of endowment void but makes it voidable. But as sub-s. (3) of S. 8 of the said Act provides that non-compliance with sub-s. (2) of S. 8 does not render the deed of endowment void but makes it voidable. So the minors may repudiate the transfer or adopt it. Till the deed is avoided by the minors the appellant municipality has to give effect to it in the mutation proceeding. 9. In the above context of facts and circumstances the question arises whether the disputed holding is entitled to exemption from imposition of tax under S. 124(1)(b) of the Bengal Municipal Act the relevant portion of which provides that the rate on holding shall not be imposed on any holding which is used exclusively as a place of worship to which the public have right of free access without payment. This provision has been considered and construed in the Bench decision in N. B. Asraf v. Commissioners of Nabadwip Municipality (AIR 1955 Calcutta 361) In that case in connection with holding No. 19 the learned Judge P. K. Sarkar J. observed (in paragraph 22 at page 365) ; "All that can be said therefore is that a certain portion of holding No. 19 is used as a place of worship but the greater and more substantial portion of the holding consisting of buildings is used for other purposes, viz. school, dispensaries and residence of pilgrims and visitors. We are accordingly unable to hold that this holding is used conclusively as a place of worship as is required by S. 124(1)(b)". The learned Judge P. N. Mukherji J. held that the sections require that the holding must be used exclusively as a place of worship, every part of it must be so used or its user must at least be such as to be exclusively referable to worship or to a place of worship (vide paragraph 29 at page 366). In the present case the sweet meat business and ration shop are carried on in the two rooms in the ground floor of the disputed holding and the evidence elicited from D. W. 1 in cross-examination show that the first floor is also used for residence of employees of the sweet meat shop. In the present case the sweet meat business and ration shop are carried on in the two rooms in the ground floor of the disputed holding and the evidence elicited from D. W. 1 in cross-examination show that the first floor is also used for residence of employees of the sweet meat shop. The question whether the rents received from the ground floor tenants are utilised for the purpose of worship of the deity has, in my view, no bearing at all on the question of exclusive user and is not a relevant consideration for deciding whether or not the holding is used exclusively as a place of worship or its user is exclusively referable to worship or place of worship. In my view, the entire holding must be exclusively used for worship or an act directly connected with worship for getting the exemption under S. 124 of the Act, apart from fulfilling the other condition viz. that the public have free access to such place of worship without payment. In the present case it cannot be said that the public have free access to the ground floor rooms of the holding. Moreover, the deed of endowment provides that 25% of the gross income from the holding shall be enjoyed by the dedicators consisting of nine persons only two of whom are shebaits and that any shebait can carryon any business in any part of the holding. These material facts which were not considered by the court of appeal below clearly show that the disputed holding does not come within the purview of S. 124 of the Act. The learned Judge was not, therefore, justified in remanding the suit for determining how the rents from the ground floor tenants are utilised. The question of such utilisation has no bearing on and is totally irrelevant for the purpose of decision of the suit. 10. The learned advocate for the respondents has referred to the averment in paragraph 16 of the written statement that at best the portion wherein the deity is installed may be exempted from taxation. On the basis of such averment it is contended that the holding in suit should be partially exempted from imposition of municipal tax. But in my view, this contention has no force. On the basis of such averment it is contended that the holding in suit should be partially exempted from imposition of municipal tax. But in my view, this contention has no force. Whatever the averment in the written statement the provisions in the Bengal Municipal Act do not permit such partial exemption of a holding Municipal rate under the Act is imposed not on persons but on holding. The word "holding" as defined in S. 3(21) of the Act means land held under one title or agreement and surrounded by one set of boundaries. The spliting up of the holding under one title and surrounded by one set of boundaries into two separate holdings for separate valuation and assessment is not justified under the provisions of the Act. 11. The next question is whether the imposition of municipal rate on the disputed holding and alteration or enhancement in the amount of such rate without substituting the name of the plaintiff deity in the assessment list and giving notice to the deity through the shabaits are valid. In this case there is unrebutted evidence of P.W. 1 one of the plaintiffs that he applied for mutation of the name of the deity in place of the previous owner. The letter dated 6.9.1966 which is marked Exhibit 6' and the letter dated 17.12.66 which is Exhibit 8' written on behalf of the plaintiffs to the municipality also show that the creation of debuttar estate comprising the disputed holding was intimated to the municipality and an application for mutation was pending with the municipality. Admittedly the municipality issued a notice dated 3.1.67 (Ext. 5) fixing a date of hearing of the application on 11.1.67. The said notice is purported to have been under S. 149(2) of the Act and it was issued to the plaintiffs in their personal capacity. P. W. 1's further evidence is that the Administrator of the municipality heard him and orally refused to mutate without intimating any formal order. According to his testimony the municipality did not serve any notice of imposition of tax or alteration of tax on the plaintiff deity. The defendant municipality did not adduce any rebutting evidence nor did it produce records of assessment. According to his testimony the municipality did not serve any notice of imposition of tax or alteration of tax on the plaintiff deity. The defendant municipality did not adduce any rebutting evidence nor did it produce records of assessment. Exhibit 9 series are bills and notices of demand addressed to "the owner or occupier" of the disputed holding for the period from third quarter 1966-67 to third quarter 1971-72 at varying rates purported to have been issued on or about the same date in February 1972. In view of such materials on record it must be held that the municipality had failed to comply with the provisions of S. 138, clause (b) of sub-s. (1) of which relates to alteration or amendment of the assessment list by substituting for the name of the owner, the name of any other person who has succeeded to the ownership. The municipality has also not complied with the mandatory provision of S. 147(2) of the Act which requires that in all cases in which any property is for the first time assessed or the assessment is increased, the Chairman shall also give notice thereof to the owner or occupier of the property, if known. In the present case the municipality had sufficient intimation of the creation of the debuttar estate regarding the holding in suit in or about September 1966. It is an essential condition of the finality of the decision of the municipal tribunal regarding the determination of questions as to the rights under the Act that they shall be determined in the manner prescribed by the Act. The jurisdiction of the civil courts is not taken away in cases where the assessment itself is open to objection on the ground that it is ultra vires or where the tax has not been legally imposed by the municipality. In the circumstances the plaintiffs, in my view, are entitled to a declaration that the imposition and enhancement of tax on the disputed holding for the period in question are not in accordance with law, not because the disputed holding is entitled to exemption under S. 124 of the Act but because the municipality has not complied with the provisions of Ss. 138 and 147 of the Act. 138 and 147 of the Act. The plaintiffs are, therefore, entitled to the declaration that the assessment of municipal rate and its enhancement without mutating the plaintiff deity's name in the municipal records and without service of statutory notices is illegal, ultra vires and void, and injunction restraining the defendant from realising the rates so imposed from the plaintiff's estate or issuing distress warrant for the purpose. There is no necessity to remand the suit for fresh trial. 12. The appeal is, therefore, allowed. The Judgment and order of remand of the court of appeal below are set aside. The suit is decreed on contest for the reliefs indicated above. The defendant municipality will, however, be at liberty to proceed according to law for imposition of tax on the disputed holding for the period covered by their pending bills and notices of demand which are not enforceable. There will be no order as to costs. Appeal allowed.