JUDGMENT
Madon, J.
1. This case has been stated under s. 64(1) of the E.D. Act, 1953, by the I.T. Appellate Tribunal, at the instance of the Controller of Estate Duty, and the following question submitted to us for our opinion :
“Whether, on the facts and in the circumstances of the case, the value of the several trust properties settled on trust by the deceased. Shri N. L. Joshi, was includible in the dutiable estate under section 12 of the Estate Duty Act ?”
2. In view of the argument advanced at the Bar, it is necessary to set out the fact in some detail. The deceased, Narandas Lakhmidas Joshi, created several trusts during his lifetime. The first of these was a deed of trust dated June 24, 1931 (hereinafter referred to as “the first deed of trust”), that was a trust deed executed by the said Narandas, who is described therein as “the settlor which expression shall be deemed to include his heirs, executors, administrators and assigns unless there is something repugnant to the subject or context thereof”. By this deed of trust, Narandas himself and four others were appointed as the trustees. The property in respect of which the first deed of trust was executed consisted of some lands at Poisar and 3 1/2% Govt. Promissory Loan Notes of the face value of Rs. 5,000. The object of the trust was the founding of a Sanatorium for the benefit of the Pushakarana Brahmins and in their absence for the benefit of all the Brahmins from Gujarat, Kathiawar and Cutch and for the upkeep of the said Sanatorium. The said Sanatorium was to be called “the Narandas Lakhmidas Pushakarana Sanatorium”. The concluding portion of the first deed of trust is as follows :
“AND IT IS HEREBY FURTHER AGREED AND DECLARED that the settlor may, at any time, revoke the trusts hereby declared.”
3. The second deed of trust was executed by Narandas on April 29, 1933, and was in respect of trust property consisting of 3 1/2% Govt. Promissory Loan Notes of the face value of Rs. 50,000 and under the said deed of trust, which would be hereinafter for convenience referred to as “the second deed of trust”. The trustees who were appointed were again Narandas himself and five others. The trust created by the second deed of trust was to be called “the Narandas Lakhmidas Joshi Charities”. The specific objects set out in the second deed of trust were : (1) the maintenance of old, helpless and destitute widows of the Pushakarana Brahmin Caste. Residing in Cutch and who had no source of maintenance or were unable to maintain themselves due to any reason and in the case of any such a widow having a son or sons such maintenance to be granted to the widow to cease to be paid to her on her eldest son attaining the age of 18 years, and (2) for the purpose of helping the old, helpless and destitute persons of the Hindu community not exceeding two in number as the Chairman of the Board of Trustees appointed under the said deed would appoint, the concluding portion of the second deed of trust provided as follows :
“AND IT IS HEREBY FURTHER AGREED AND DECLARED that the settlor may, at any time, revoke the trust hereby created.”
4. Narandas was described in the second deed of trust as “the settlor which expression shall be deemed to include his heirs, executors, administrators and assigns unless there is something repugnant to the subject or context thereof”.
5. The third trust deed was executed by Narandas on April 9, 1936, and will be hereinafter referred to as “the third deed of trust”, the trust property under the third deed of trust consisted of 3 1/2% Govt. Promissory Loan Notes of the face value of Rs. 20,000 and once again Narandas and some other were appointed as the trustees. The object of the said trust was to hold the said Govt. Promissory Loan Notes and the interest which might accrue thereon for the said Narandas Lakhmidas Joshi Charities. Narandas was described in the third deed of trust in identical words as he was described in the first and second deeds of trust and the concluding portion of the first and second deeds of trust and the concluding portion of the third deed of trust was in exactly the same language as the concluding portion of the first and the second deeds of trust which have been reproduced above.
6. On March 5, 1941, Narandas executed yet another deed of trust, which we will hereafter refer to as “the fourth deed of trust”. The trust property consisted of 235 ordinary shares of the Bombay Electric Supply and Tramways Company Ltd., of the face value of Rs. 11,750. Under the fourth deed of trust, Narandas and some others were to be the trustees and the trust property and the dividends which might accrue thereon were to be held for the said Narandas Lakhmidas Joshi Charities with a proviso that out of the dividends or income of the said trust funds, the trustees were to spend or keep apart a sum of Rs. 250 at least every year for the repair of the dharamshala at Nalia in Cutch, which Narandas had built, and accumulate the same together with the sum of Rs. 100 provided for repairs of the said dharamshala at Narayan Sarovar also built by Narandas and to spend moneys out of the said repairs fund whenever necessary for the repairs of the said dharamshalas. In the fourth deed of trust also the word “settlor” was defined in exactly the same language as in the first, second and third deeds of trust and the concluding portion of the fourth deed of trust was an identical language with the earlier three trust deeds.
7. On March 31, 1942, three nephews of Narandas, namely, Bhagwandas Velji. Dwarkadas Velji and Delipsingh Velji, executed a deed of trust in favour of charities. These three settlors were described in the said deed of trust as “the settlors (which expression shall be deemed to include the survivors of them and the heirs, executors, administrators and assigns of such survivor or survivors unless there is something repugnant to the subject or context thereof”. The trustees appointed under the said deed of trust were the trustees for the time being of the Narandas Lakhmidas Joshi Charities. The property of the said trust consisted of 100 ordinary shares of the said Bombay Electric Supply and Tramways Company Ltd., of the face value of Rs. 5,000 and 215 preference shares of the said company of the face value of Rs. 50 each, under the said trust deed the trustees were to hold the said shares and the dividends thereon for the benefit of the said Narandas Lakhmidas Joshi Charities with the proviso that the trustees should set apart a sum of Rs. 50 every year for repairs of the dharamshala, built by the settlors out of the estate of their brother Vallabhdas Velji at Jamanwara. The concluding portion of the said trust deed provided as follows :
“AND IT IS HEREBY FURTHER AGREED AND DECLARED THAT on the said Narandas Lakhmidas Joshi, the settlor of the aforesaid three deeds of trust dated the April 29, 1933, April 9, 1936, and March 5, 1940, at any time revoking the trust thereby created, the settlors of this deed of Trust will be entitled to revoke the trust hereby declared by them.”
8. The three Veljis also executed thereafter another deed of trust dated March 16, 1946, in respect of 3 1/2% Government Promissory Loan Notes of the face value of Rs. 8,000. These three Veljis, who created the said trust, are described in this deed of trust in exactly the same language as they were described in the earlier deed of trust executed by them. The trustees appointed thereunder were the trustees of “the Narandas Lakhmidas Joshi Charities” and the object of the said trust was to hold the trust property and the interest accruing thereon for the said Narandas Lakhmidas Joshi Charities with again a proviso that the trustees of the said trust should set apart or spend the sum of Rs. 250 every year for keeping a guard at the dharamshala built by the settlors at Jamanwara. The said deed of trust contained a revocation clause in identical language as used in the earlier deed of trust executed by the said Veljis.
9. It appears that thereafter by a deed of appointment of new trustees dated April 5, 1946, with a view to amalgamate the said Narandas Lakhmidas Pushakarana Brahmin Sanatorium Trust with the other trusts founded by Narandas and known as Narandas Lakshmidas Joshi Charities Trusts. All the trusts under all the above deeds of trust were amalgamated and the trust funds blended together and all these trusts thereafter continued to exist and function as one single trust. After this amalgamation and blending of all the above trusts, Narandas executed yet another deed of trust, namely, a deed of trust dated July 6, 1941. We will refer to this trust as “the fifth deed of trust”. In this deed of trust Narandas was described as “the Settlor” simpliciter, the trust property consisted of certain immovable properties and the trustees under the said deed of trust were the trustees of all the above trusts. The trust property was to be held for the benefit of both the Joshi Trusts, namely, the said Narandas Lakhmidas Joshi Charities and the Narandas Lakshmidas Joshi Pushakarana Sanatorium. The concluding portion of the said deed of trust provided as follows :
“AND IT IS HEREBY FURTHER AGREED AND DECLARED that in case Narandas Lakhmidas Joshi, the Settlor of the hereinbefore recited Deeds of Trust, at any time revokes the Trusts thereby created, the Settlor hereof will be entitled to revoke the Trust hereby declared but not otherwise.”
10. A sixth trust deed (hereinafter referred to as “the sixth deed of trust”) was executed by Narandas on November 8, 1947, in respect of other immovable properties, the trustees under the said deed of trust were to hold upon some of the objects of the Narandas Lakhmidas Joshi Charities. The sixth deed of trust, Inter alia, provides as follows :
“AND IT IS HEREBY FURTHER AGREED AND DECLARED that in case Narandas Lakhmidas Joshi, the Settlor of the hereinbefore recited Deeds of Trust, at any time revokes the trust thereby created, the Settlor hereof will be entitled to revoke the trusts hereby declared but not otherwise…”
11. In the sixth deed of trust, Narandas is described simpliciter as “the Settlor”
12. It appears that on March 3, 1953, the trustees of all these trusts made an application to this High Court under the Trustees and Mortgagees Powers Act (XXVIII of 1866), for sanction to purchase an immovable property situate at Bombay. The averments made in this petition and the trust properties set out therein clearly show that from the date of the said deed of appointment of new trustees dated April 5, 1946, the trust properties under all the trusts executed prior to the date of the said deed of appointment of new trustees as also subsequent thereto were amalgamated and blended together and had become and were treated as one trust.
13. The last deed of trust which the charitably minded Narandas executed was one March 8, 1954. We will hereafter refer to this trust deed as the “seventh deed of trust”. The property which was the subject-matter of the seventh deed of trust was an immovable property, situate at Kandivli and 3% Govt, promissory Loan Notes of the face value of Rs. 25,000. In the seventh deed of trust, Narandas was described simpliciter as “the Settlor” The trustees appointed under the seventh deed of trust as also under the sixth deed of trust were the same persons as were the trustees of all the other trusts and the trust property were to be held for the benefit of some of the objects of the earlier trust deeds executed by Narandas. The seventh deed of trust also contained a provision for the revocation thereof which clause was in the same words as the clause of this effect in the sixth deed of trust is.
14. On October 31, 1955, Narandas died intestate. While assessing his estate to estate duty, the Asst. CED, by his order dated March 27, 1962, included in the estate, the value of all the trust properties under each and every trust mentioned hereinabove including under the two trust deeds executed by the said Veljis as also a sum of Rs. 75,000, being part of two donations of Rs. 25,000 and Rs. 50,000 given to the trusts by Narandas to enable them to purchase the said immovable property at Bombay in respect of which the petition earlier referred to was made to this High Court on the ground that all these trust deeds reserved to the settlor a power of revocation and, therefore, the trust properties passed on the death of Narandas by reason of the provisions of s. 12 of the E.D. Act. The accountable persons thereupon filed an appeal to the Appellate Controller of Estate Duty. By his order dated August 13, 1964, the Appellate Controller called for a report from the Assistant Controller on the question, “whether the trust estate included any assets settled or donated by persons other than Narandas”. By his report dated December 7, 1964, the Asst. Controller pointed out the properties which had been settled upon or donated by Narandas and the properties which had been settled upon trust by the said three Veljis, thereupon, by his order dated September 16, 1966, the Appellate Controller deleted from the value of the estate the said two donations of Rs. 75,000 given by Narandas to the said trusts as also the value of the property under the two trusts created by the three Veljis. He, however, upheld the order of the Asst. controller and held that the properties under all the trust deeds executed by Narandas passed on his death forming part of his estate by reason of the fact that each of these trust deeds contained a power of revocation reserved to the settlor. Against the order, the accountable persons went in appeal to the Income-tax Appellate Tribunal, the Asst. Controller also filed an appeal to the Tribunal against the deletion of the said donation of Rs. 75,000. The Tribunal dismissed the appeal filed by the Department. Against this dismissal of appeal no application for reference has been made by the Department.
15. So far as the appeal filed by the accountable persons was concerned. At the hearing of the said appeal, for the first time, it was sought to be argued on behalf of the Department that all the trust deeds executed by the said Narandas were void under s. 32 of the Transfer of Property Act, 1882. It was further urged that by reason of the reservation of a power of revocation in all the trust deeds executed by Narandas, the trust properties formed part of his estate and passed on his death under s. 12 of the Act. The Tribunal, however, came to the conclusion that under the Hindu law a dedication or an endowment of a public nature was irrevocable and, therefore, the power of revocation reserved to Narandas, who was a Hindu, was void and could not be enforced and it allowed the appeal of the accountable persons. Against this judgment and order of the Tribunal. The present reference has been made at the instance of the CED.
16. At the hearing of this reference, Mr. Kotwal, learned counsel for the applicant. Submitted that the reservation of a power of revocation in favour of Narandas made all the trust deeds executed by Narandas void. The reason for this, according to Mr. Kotwal, was that a trust in which there was a power of revocation reserved to the settlor was a gift with a condition attached and, therefore, the trust was void under s. 126 of the Transfer of Property Act, 1882. The second ground urged by Mr. Kotwal for contending that all the trust deeds were void was because, according to him, the first of the three certainties necessary for the creation of a valid trust were absent in the present case. Mr. Kotwal, however, did not argue that the trusts were void by reason of the provisions of s. 32 of the Transfer of Property Act. In our opinion, Mr. Kotwal rightly did not argue this point because s. 32 can possibly have no application to the present case, it merely deals with the imposition of an invalid condition subsequent and is merely a counterpart of s. 30 of the Transfer of Property Act and the effect of both these sections is that a condition which is void as condition precedent would also be void if it were imposed as a condition subsequent.
17. On behalf of the accountable persons, Mr. Rajgopal made a two-fold submission. His first submission was that the revocation clause was void and unenforceable and, therefore, the trust property did not form part of the estate of Narandas and s. 12 of the E.D. Act, was, therefore, not attracted. His other submission was that by the said deed of appointment of new trustees dated April 5, 1945, the revocation clause contained in the earlier deeds of trust had ceased to be operative and that thereby Narandas had surrendered his right to revoke the said deeds of trust and, therefore, the case fell under the first proviso to sub-s. (1) of s. 12 of the E.D. Act. With respect to the trusts executed by Narandas after the said deed of appointment of new trustees dated April 5, 1945, Mr. Rajgopal, learned counsel for the respondents, submitted that the revocation clause in those deeds was dependent and conditional upon the exercise of the power conferred upon Narandas by the earlier deeds and as the revocation clause under the earlier deeds had become inoperative the revocation clause in the subsequent deeds did not survive.
18. So far as his first attack on the revocation clause was concerned, according to Mr. Rajgopal, the revocation clause in all the trust deeds was bad in law because Narandas. Being a Hindu, his case was governed by Hindu law and a Hindu, when he makes a charity, invariably dedicates the property which is the subject-matter of charity to God and such a dedication is in law irrevocable and if any attempt were made to reserve to the dedicator the power to call back the property dedicated, such a reservation of power would be void. According to Mr. Rajgopal. It made no difference whether the dedication was in one of the forms recognized by Hindu personal law or was in a form which is derived from English law. Namely, a deed of trust.
19. Another attack launched by Mr. Rajgopal on the validity of the revocation clause was that it violated the rule against perpetuity and was, therefore, void. It was also argued that a public charitable trust, whether executed by a Hindu or a non-Hindu, was irrevocable in law and, if such a deed of trust for charitable purposes purported to reserve to the settlor a power of revocation. Such power was void as being against public policy.
20. In view of these arguments which were advanced and the diverse positions canvassed at the Bar and feeling that perhaps the answer to one of these questions may affect a large number of charities, we, by our order dated October 3, 1979, directed notice to be given to the Charity Commissioner. In pursuance of this notice, at the adjourned through counsel. Mr. S. A. Desai, learned counsel for the Charity Commissioner, supported the contention of Mr. Rajgopal that a charitable trust made by a Hindu can be governed only by Hindu law, and irrespective of the fact whether it contained a power of revocation or not, it was irrevocable. In the alternative. Mr. Desai submitted that once a charitable trust was registered under the Bombay Public Trusts Act, 1950, the trust became irrevocable, even though it might contain a revocation clause. It may be mentioned that all the trusts above referred to were duly registered under the Bombay Public Trusts Act.
21. Before we consider the rival contentions as adumbrated above. It will be convenient to set out the provisions of s. 12 of the E.D. Act, Section 12, so far as is material for our purpose, provides as follows :
“12. Settlements with reservation. – (1) Property passing under any settlement made by the deceased by deed or any other instrument not taking effect as a will whereby an interest in such property for life or any other period determinable by reference to death is reserved either expressly or by implication to the settlor or whereby the settlor may have reserved to himself the right by the exercise of any power. To restore to himself or to reclaim the absolute interest in such property shall be deemed to pass on the settlor’s death :
Provided that the property shall not be deemed to pass on the settlor’s death by reason only that any such interest or right was so reserved if by means of the surrender of such interest or right the property is subsequently enjoyed to the entire exclusion of the settlor and of any benefit to him, by contract or otherwise, for at least two years before his death.”
22. It is not disputed that the power of revocation reserved to the settlor by a deed of trust would amount to the settlor reserving to himself the right by the exercise of that power to restore to himself or to reclaim the absolute interest in property settled by him upon trust and that where a settlement contains such a provision the trust property would be deemed to pass on the settlor’s death.
23. It was on the ground that s. 12(1) was attracted to the deeds of the trust in question that Asst. Controller and the Appellate Controller both held the properties settled by the deeds of trust, executed by Narandas, to pass on his death. But before the Tribunal, as mentioned earlier, a wholly different stand was taken by the Department that the trust deeds were void by reason of the provisions of s. 32 of the Transfer of Property Act. That stand based on said s. 32 as set out above was abandoned on behalf of the Department at the hearing of this reference. But the validity of the deeds of trust was sought to be challenged on two other grounds which have been mentioned by us while summarizing the rival contentions. Neither of which was urged before the Tribunal. It is doubtful whether it is open to the Department to urge these points at the hearing of this reference since these points were not canvassed before the Tribunal. But since they have been argued and since no objection was raised thereto by the respondents, we will deal with these points.
24. The first contention was based upon the provisions of s. 126 of the Transfer of Property Act. Under that section, “the donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor. Is void wholly or in part, as the case may be”. The argument on behalf of the Department was based upon the supposition that a trust is a gift, a supposition which is not borne out in law. A gift is a transfer of property. It is defined in s. 122 of the Transfer of Property Act as “the transfer of certain existing movable or immovable property made voluntarily and without consideration. By one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee”. The Transfer of Property Act deals, as its long title and preamble show, with the transfer of property by act of parties or transfers inter vivos, the general rules governing such transfers are set out in Chap. II of the Act, while Chapters III to VIII deal with certain specific types of transfer such as sale of immovable property. Mortgages of immovable property and charges, leases of immovable property, exchanges, gifts and defines the expression “transfer of property”. It provides :
“5. ‘Transfer of property’ defined. – In the following sections transfer of property’ means an act by which a living person conveys property. In present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and ‘to transfer property’ is to perform such act.
In this section, ‘living person’ includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, association or bodies of individuals.”
25. Thus, a transfer of property in order to come within the purview of the Act is to be a transfer from one living person to another living person. Now, a trust, and the purposes for which the trust is created, can in no way satisfy the definition of a gift or can be comprehended therein. Very often trusts are made for the benefit of persons unborn at the date of the creation of the trust. They are often made for public charitable or religious purposes. If a trust were to be equated with a gift as defined by the Transfer of Property Act, a question would immediately arise as to whom the gift is made. A gift cannot be made to the trustees because a trustee does not get any beneficial interest in the property which is the subject-matter of the trust. The gift cannot be to the beneficiaries under the deed of trust because the validity of a deed of trust does not depend upon the acceptance by the beneficiary of the benefit conferred upon him by the deed of trust. For the validity of a gift, s. 122 provides that the acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the beneficiaries are not in existence at the date of the trust, a further question would arise as to who is to accept the so-called gift. Again, in the case of a religious or a public charitable trust, a question would arise as to who is to accept this so-called gift to charity. It is true that there is no consideration generally in the case of trusts, but, as pointed out in Mulla on the Transfer of Property Act, 1882, sixth Edn., page 786, a gift may be made by the equitable machinery of a trust; and the interposition of the trustees enables a gift to be made to a person not yet in existence and, therefore, incapable of being the donee of a gift. The utilisation of the machinery of a trust for the purpose of benefiting certain persons in existence or yet to be born or certain objects like general charity or religious object is a very well-recognised legal device known to law. So far as English law is concerned, it originated in the Court of Chancery in England. Jurists have found it difficult to give a complete definition of trust, as pointed out in Snell’s Principles of Equity, Twenty-seventh edition, 1974, at page 87, “No one has yet succeeded in giving an entirely satisfactory definition of a trust”. According to Snell, perhaps the most satisfactory definition is that given by Prof. Keeton, in his book “The Law of Trusts” (a Edn., 1968), p. 5, where he defines a trust as “the relationship which arises wherever a person called the trustee is compelled in equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one and who are termed cestuis qui trust) or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the trustee, but to the beneficiaries or other objects of the trust”. The mention of “Equity” in Prof. Keeton’s definition has reference to the historical origin of the doctrine of trusts and the mention of “some object permitted by law” in the definition refers to charitable or religious objects for which a trust is created. As mentioned earlier, a trust traces its origin to the principles evolved in the course of time by the Chancery Courts. This origin has been picturesquely described by Sir Robert Atkyns in the course of the arguments in Attorney General v. sir George Sands (1668) Hard. 488, at page 491. He said, “a trust is altogether the same that an use was before 27 Hen. 8 (that is, 27 Henry 8, c. 10. The Statute of Uses, 1535), and they (that is, an use and a trust have the same parents, fraud and fear, and the same nurse, a court of conscience”, so far as private trusts are concerned, that is, trusts which are not for charitable or religious purposes, we have the definition of trust given in s. 3 of the Indian Trusts Act, 1882. Under that section a trust given in s. 3 of the Indian Trusts Act, 1882. Under that section a trust is defined as “an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner : the person who reposes or declares the confidence is called the ‘author of the trust’; the person who accept the confidence is called the ‘trustee’; the person for whom the benefit is created is called the ‘beneficiary'”. Substituting the words “some object permitted by law” for the words “another, or of another and the owner” occurring in the definition of ‘trust’ given in section 3 of the Indian Trusts Act would make a satisfactory definition of a public charitable or religious trust. It is also pertinent to note that under s. 78 of the Indian Trusts Act, a trust is extinguished when the trust. Being revocable, is expressly revoked. These provisions, therefore, make it amply clear that a trust is wholly different from a gift as defined by the Transfer of Property Act and the sections relating to gifts in the Transfer of Property Act can have no application whatever to a trust, whether private or public.
26. In this connection, a useful reference may be made to the judgment of a Division Bench of this High Court consisting of Chagla C.J. and Tendolkar J. in CIT v. Bai Navajbai N. Gamadia . In that case, a Parsi lady had created a trust for charitable purposes by a deed of trust which reserved to her a power of revocation of the trust. The question arose whether the income arising from the trust property was exempt from income-tax under s. 4(3)(i) of the Indian I.T. Act, 1923. One of the contentions raised on behalf of the Department, as can be seen from the statement of case reproduced in the report of that case as given in [1947] 16 ITR at page 112, was that revocable trusts were not valid trusts and, therefore, could not be covered by the said s. 4(3). The Division Bench repelled that contention in the following words (p. 114) :
“The other contention raised by the Advocate-General is whether this particular trust is a charitable trust at all. The argument advanced by the Advocate-General is that it is not open to a Parsi in India to make a revocable trust of personality for a charitable purpose. Now, it is well-established that a Parsi has no personal law which governs him in British India and he is either governed by the statutory law of this country or in the absence of statutory law he is governed by the Common Law of England and under the common Law as stated both in Tudor on Charities (p. 551) and in Halsbury’s Laws of England (Vol. 4, p. 200), it is open to a person to make a trust of personality in favour of a charity which is a revocable trust. Therefore, in our opinion, the answer to the question raised by the Tribunal must be in the affirmative.”
27. The reference to Tudor on Charities in the passage reproduced above is to the fifth edition of that book, where it is stated (at pp. 550-551) :
“A charity is none the less within this definition because its endowment is not perpetual : as, e.g., where it is subject to a power of revocation so long as that power has not been exercised : In re Sir Robert Peel’s School [1868] 3 Ch 563……..”
28. The reference to Halsbury’s Laws of England in that passage is to the earlier second edition of that work, where it is stated, “there is apparently no objection to trusts of personality in favour of a charity being made revocable” and the case which is cited in support thereof is the same case as is given in Tudor on Charities and the footnote on that page. Namely, page 200 of vol. IV of Halsbury’s Laws of England makes it clear that so far as reality is concerned, the matter is governed by the Mortmain and Charitable Uses Act, 1888.
29. When we turn to the case cited both by Tudor and Halsbury in support of the above proposition, namely, In re Sir Robert Peel’s School at Tamworth : Ex Parte. The Charity Commissioners, LR [1867-68] 3 Ch App 543, we find that the real question there was whether a charitable trust in which the settlor had given power to the person for the time being entitled in possession to the devised estates to revoke the trust and transfer the trust fund to other purposes was an endowment within the meaning of the Charitable Trusts Act of 1853 and 1855. The court held that assuming the power of revocation was valid, a provision made for a charity was none the less an endowment because it may not last throughout all time and that a charity was no less a charity within the interpretation clause, namely, s. 66 of the Act in question, because its endowment was not perpetual.
30. The above discussion shows that a trust, whether public or private, cannot be equated with a gift between two living persons which would be governed by the Transfer of Property Act.
31. We will now turn to the second part of Mr. Kotwal’s attack on the validity of the trust deeds. According to Mr. Kotwal, all these trusts were uncertain and, therefore, fail and there is a resulting trust in favour of the settlor because the first of the three certainties which are required for the creation of a trust was not present in any of these trusts. In support of this submission, Mr. Kotwal relied upon another decision of this High Court in Hanmantram Ramnath v. CIT and, particularly, the following observations (p. 718) :
“Although the Indian Trusts Act does not apply to charitable trusts, it is clear that the three certainties there described are required to create a charitable trust, they are : (1) a declaration of trust which is binding on the settlor. (2) setting apart definite property and the settlor depriving himself of the ownership thereof; and (3) a statement of the objects for which the property is thereafter to be held. i.e., the beneficiaries.”
32. The dispute in that case was whether the second certainty, namely, setting apart of definite property and the settlor depriving himself of the ownership thereof had been fulfilled and on the facts of that case it was found that moneys had not been set apart for charities. Relying upon the above passage, Mr. Kotwal contended that in the present case. In none of the trust deeds was the first certainty present because there was no declaration of trust which was binding upon the settlor inasmuch as the settlor had reserved to himself a power of revocation. We are afraid this again is a misreading of what the Division Bench meant in that case and of the language in which it paraphrased the three certainties which re set out in s. 6 of the Indian Trusts Act. That section provides :
“6. Creation of trust. – Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust (b) the purpose of the trust, (c) the beneficiary, and (d) the trust property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee transfers the trust property to the trustee.”
33. We are not concerned with s. 5 because it provides for the manner of creating a trust of movable and immovable property. What is split up into four parts in s. 6 is what is known in English law as the three certainties. These three certainties which are requisite for the creation of a trust were enunciated by Lord Langdale M. R. in the leading case of Knight v. Knight [1840] 3 Bear 148 at 173 and, as mentioned by him, they are as follows :
“(1) The words must be so used that on the whole they ought to be construed as imperative;
(2) The subject-matter of the trust must be certain; and
(3) The objects or persons intended to have the benefit of the trust must be certain.”
(See Snell’s Principles of Equity. – Twenty-seventh edition, page 111.
34. While considering Mr. Kotwal’s argument on this point, one must bear in mind what the Division Bench in Hanmantram’s case , referred to above, held that the three certainties set out in the Indian Trusts Act which. As mentioned earlier, apply to private trusts are to be applicable to public trusts and it is equally pertinent to bear in mind that that very statute by s. 78 permits a settlor to reserve expressly to himself or to another a power to revoke the trust. A power of revocation reserved by a deed of trust has nothing to do with any of the three certainties. As long as the trust is not revoked, the trust would continue and would be binding upon the settlor, the argument on behalf of the trustee, Sir Robert peel, in the case of Sir Robert Peel’s School [1867-68] 3 Ch App 543, referred to above, was that since Sir Robert Peel had reserved to himself under the deed of trust a power to revoke the said trust he was not bound to render accounts to the Charity Commissioner of his management of the trust properties. He had, however, not exercised that power of revocation and the court held that as the trust was not revoked he was bound to render accounts. This was the only authority cited in support of the argument that the trust were void and, for the reasons set out above, there is no substance whatever in this contention.
35. It was next contended on behalf of the Department that the Tribunal was in error in coming to the conclusion that the revocation clause was void and unenforceable because the deceased was a Hindu and, therefore, governed by the Hindu law. In arriving at this conclusion, the Tribunal has merely relied upon a statement which appears in Gupte’s Hindu Law. Second edition, at page 844. That statement is as follows :
“It is well settled law that in the case of a dedication or endowment of public nature. The dedication is irrevocable; but it cannot be considered settled whether an endowment of a private nature is likewise irrevocable.”
36. The authority cited by Mr. Gupte, in support of the proposition, that in the case of a dedication or endowment of a public nature the dedication is irrevocable is Konwar Doorganath Roy v. Ram Chunder Sen [1876] ILR 2 Cal 341 (PC). In that case, a suit had been filed to set aside certain alienations of an ancestral mehal on the ground that the mehal had been dedicated to the worship of an idol. The defence was of a two-fold nature; first that the estate has not been so dedicated, and, secondly, that if it were, there was legal necessity for the alienation. On appeal to the Judicial Committee, it was held on the evidence that the estate was not debutter. However, in the course of his judgment, Sir Montague E. Smith observed (at p. 347) :
“If the deed of endowment from Rajah Mahanund were satisfactorily proved, and it were an endowment which dedicated this mehal to the service and worship of a particular idol, then, though the idol were a family idol, the property would be impressed with a trust in favour of it. Where the temple is a public temple, the dedication may be such that the family itself could not put an end to it; but in the case of a family idol, the consensus of the whole family might give the estate another direction.”
37. Thus what this decision of the Judicial Committee of the Privy Council lays down is that where there is a dedication of property to the service and worship of a particular idol and the temple is a public temple, the dedication cannot be revoked, it does not lay down in broad proposition that every charitable trust created by a Hindu is irrevocable. The Tribunal, by merely relying upon the observations in Gupte’s Hindu law without looking into the authority cited in support of it, has fallen into an error and has come to a wrong conclusion that under the Hindu law, where once an endowment was created for charitable purposes, it was irrevocable and if such endowment reserved to the settlor a power of revocation, the power of revocation was void and could not be enforced. The Tribunal has also overlooked what Mr. Gupte has set out in article 221 of his book on Hindu Law at page 830. The relevant passage is as follows (p. 830-31) :
“An endowment for a religious or charitable object may come into existence in two ways, for there are two modes in which a voluntary transfer of property in favour of an idol, temple or other religious or charitable object may be validly and effectually made according to the law in British India; they are : (i) a dedication of the property under Hindu Law; and (ii) a trust in accordance with the law of British India, such as by a transfer to the trustees for the benefit of the object in accordance with the provisions of the Transfer of Property Act or the Indian Succession Act, or the law relating to trusts in India. But we are here concerned with the manner in which an endowment may be validly and effectually created under Hindu law.”
38. By not taking into account this passage, the Tribunal thought that the passages which followed it dealt with all modes by which a Hindu may appropriate property for a specific religious or charitable purpose. In this section of his book, Mr. Gupte was concerned only with the first mode of transfer, namely, the a trust under the ordinary law of the land. There are a number of authorities which have laid down that a dedication for a religious purpose to a family idol or deity or to two a temple once made is irrevocable, in none of these cases, however, was there any question of a power of revocation because all these dedications were made under Hindu law by religious ceremonies performed for that purpose and which from the nature of things could not containing a power of revocation in favour of the settlor. The object of these ceremonies would be to dedicate property to God for the purpose of obtaining spiritual benefit and no one would, as a part of these ceremonies, add a ride that the was dedicating, property to God on condition that he may withdraw it when he like because such a rider might have a boomerang effect of correspondingly having the spiritual benefit withdrawn at the same time, what had happened in those cases was that, none the less, in spite of the dedication subsequently, the person who had made the dedication or his heirs had sought to go back on the dedication a attempted to retrieve the property, which attempts failed. It is unnecessary to refer to all these authorities merely in order to point out the above position, which they have set out, and then to state that they have no relevance to the facts of the present case. A complete discussion on the manner in which property can be dedicated for a religious or a charitable purpose under the Hindu law will be found in Ramchandra Shukla v. Shree Mahadeoji, , wherein it is observed at para. 16 of the judgment (p. 464) :
“A dedication of property for a religious or a charitable purpose can, according to Hindu law, be validly made orally and no writing is necessary to create an endowment except where it is created by a will. (of. Dasaratharami Reddi v. D. Subba Rao, [1957] SCR 1122 at page 1128; AIR 1957 SC 797 at p. 800). It can be made by a gift inter vivos or by a bequest or by a ceremonial relinquishment. An appropriation of property for specific religious or charitable purposes is all that is necessary for a valid dedication. As stated by the Privy Council in Vidyavaruthi v. Balusami Ayyar, 48 Ind App 302 at p. 311; AIR 1922 PC 123 at p. 126, a trust in the sense in which it is understood in English law is unknown in the Hindu system. Hindu piety found expression in gifts to idols, to religious institutions and for all purposes considered meritorious in the Hindu social and religious system.”
39. The question in that case was whether the dedication for the promotion of a particular game or sport was a charitable trust or not under the Hindu law. That question was answered in the negative. The question whether when a Hindu executes a deed of trust in accordance with the law of trusts as is known to the ordinary law of the land, which deed of trust reserved to the settlor a power of revocation, such a power of revocation is valid or not never arose in that case.
40. Mr. Rajgopal next submitted that according to Hinduism, all acts of charity are religious acts and, therefore, whenever a Hindu did charity or created a charitable trust, irrespective of the mode of creation which he availed of, he was dedicating property to God and in such dedication if he had reserved the power of revocation, that power was void. In support of his argument, Mr. Rajgopal relied upon a decision of the Supreme Court in CIT v. Sri Jagannath Jew [1976] 107 ITR 9. In that case, a Hindu executed a will which was drafted by an English solicitor and which will opened with the onwards that it dedicated and made debutter certain immovable property of the testator in the name and for the worship of his Thakoor Sree Sree Jagannath Jew. The will also provided for giving and dedicating and making debutter all the jewelleries for the worship of the Thakoor. Apart from this, the will contained directions for spending amounts to be spent on charitable objects like feeding the poor, maintenance of a garden, a menagerie of non-carnivorous animals and birds and an art gallery and for payment of certain fixed allowances to acting shebaits as well as to the widows of deceased shebaits, maintenance of horsedrawn carriages and motor cars for the use of the shebaits, medical aid to the shebaits and their families, expenses on account of Sraddha ceremony of the ancestors and other donations. The ITO disallowed a claim for deduction in respect of a portion of the income of the property on the ground that it was not for religious or charitable purposes. The question was whether these purposes were religious or charitable purposes and the court came to the conclusion that they were religious and charitable purposes. So far as the surplus income after defraying expenses and which was not held in trust for charitable purposes was concerned, the court held that they were not exempt from taxation under s. 4(3)(i) of the Indian I.T. Act, 1922. However, what has been relied upon by Mr. Rajgopal, in this judgment, are the various observations, with respect to the essence of Hinduism, made by Krishna Iyer J., who spoke for the court, in the course of his judgment. However, if one reads the whole judgment carefully, one finds that these observations are not confined merely to Hinduism, at page 20, the learned judge states, “From the Buddha and Mahavira to St. Francis of Assissi and Gandhiji, compassion for living creatures is a profound religious motivation”. Gautam Buddha and Mahavira Both broke with Hindu traditionalism and St. Francis of Assissi had no connection either with India or Hinduism, emphasis was also placed upon a quotation from the famous poem of Samuel Taylor Coleridge, “The Rime of the Ancient Mariner” reproduced in the said judgment, that quotation being :
“He prayeth best, who loveth best All things both great and small : For the dear God who loveth us. He made an loveth all.”
41. Coleridge, when he wrote this poem, had certainly no thoughts of Hinduism in his mind. Charity, as a cardinal principle, is not the monopoly of any particular religion. All great religions of the world have emphasized charity and equated it with religion and have place charity at times higher than religion, st. Paul in his First Epistle to the Corinthians in chapter 13 (Authorized Version) said, “And now abideth faith, hope, charity, these three; but the greatest of these is charity”. St. Paul thus placed charity higher than faith. In Chapter IV of the Koran, which is headed “Al-Nisa”, the Moslems are enjoined to do charity, Charity is the central theme of the religion preached by Prophet Zarathustra. Whether a Hindu, by a charitable act, wishes to dedicate property to God or not depends not upon whether he is a Hindu. It depends upon the mode which he selects for appropriating the property. If he selects a Hindu ceremonial mode, then he is dedicating property to God, if he selects a mode known to ordinary law, he is not dedicating property to God but he is executing a deed of trust and thereby creating a public charitable trust governed by the ordinary law of the land which would apply in this case both the Hindus and Non-Hindus alike.
42. Narandas, having created all the above trusts by regular deeds of trust and not according to the ceremonies required under the Hindu law, the validity so far as the form of these deeds of trust is concerned cannot be judged by the principles of Hindu law but by the principles of the law of trusts. However, whether the objects of the trusts are religious or charitable would fall to be determined according to the principles of Hindu law, Narandas being a Hindu.
43. We now turn to the question whether the power of revocation survived after the trust funds were amalgamated by the said deed of appointment of new trustees, dated April 5, 1946. We have already set out earlier what the effect of this deed was. To recapitulate, under it, all the trusts till then created, namely, the trusts created under the first, second, third and fourth deeds by the said Narandas and the two trusts created by the three Veljis were blended together and consolidated into one trust and all the properties held in common and they were thereafter administered by the same set of trustees. These trusts, therefore, in substance became one trust. Apart from the recitals in the subsequent deeds of trust, these facts are clearly borne out by the averments made in the said petition, dated March 3, 1952, made to this High Court. Now, it is pertinent to bear in mind that while under the earlier deeds of trust the power of revocation was reserved to Narandas, his heirs, executors, administrators and assigns, under the two deeds of trust executed by the three Veljis, the power of revocation was reserved to the three Veljis and was to be exercised only in the eventuality of Narandas revoking the earlier trusts. Since the two Velji trusts also became amalgamated and blended with the trusts executed by Narandas and functioned as one trust, it was not thereafter open to Narandas to revoke any of his trusts, because, by doing so, he would also be revoking the Velji trusts which he was not entitled to do under their respective trust deeds. Therefore, from and after the date of this amalgamation, the power of revocation ceased to be exercisable by Narandas and one may well say that by becoming a party to this blending or amalgamation Narandas surrendered the right reserved to him to restore to himself the absolute interest in the trust property and the case would, therefore, fall under the first proviso to s. 12 of the E.D. Act.
44. So far as the trust deeds subsequent to the said amalgamation are concerned, namely, the fifth, sixth and seventh deeds of trust, the power of revocation reserved thereunder in favour of Narandas was to be exercised by him only in the eventuality of Narandas revoking the earlier deeds of trust executed by him. Since the power of revocation under the earlier deeds of trust had become inoperative, the question of Narandas revoking any of those deeds of trust did not arise and the power of revocation under the fifth, sixth and seventh deeds of trust was, therefore, an inoperative and ineffectual one.
45. It was next argued on behalf of the respondents that the power of revocation reserved to Narandas under the first second, third and fourth deeds of trust was void as infringing the rule against perpetuity inasmuch as the revocation was to be either by Narandas or his heirs, executors, administrators and assigns, it was submitted that if Narandas died intestate, as he in fact did, no one may take out letters of administration to his estate for a number of years, and if ultimately somebody did take out letters of administration, the person to do so may do it beyond the period of perpetuity and that such a possibility rendered the power of revocation void. In support of this submission, reliance was placed upon In re Watson’s Settlement Trusts : Dawson v. Reid [1958] 1 WLR 732, in which the power of revocation was conferred upon the trustees of the deed of trust. The court held that as the power of revocation granted to trustees was not limited to the period of perpetuity, the power was void ab initio. On behalf of the applicant, it was submitted that the power of revocation did not create any interest in the trust property in favour of the person entitled to revoke the trust, but was a mere personal grant and that, therefore, the rule against perpetuity did not apply to a power of revocation in a deed of trust. We consider it unnecessary to discuss this question inasmuch as we have held that the power of revocation in each of the trust deeds in question had become or was inoperative and ineffectual.
46. It was also submitted on behalf of both the respondents and the Charity Commissioner that when a public trust is registered under the Bombay Public Trust Act, it cannot thereafter be revoked because though there were provisions authorising the Charity Commissioner to make changes in the entries in the register of public charitable trusts, there was no provision authorising him or entitling him to delete the entire entry and if a public charitable trust was revoked, the effect would be the deletion of a complete entry and not merely making changes in some of the particulars required to be mentioned in the entry of registration. For the same reasons as mentioned above, we feel it equally unnecessary to consider this question or to give any finding thereon.
47. It was also sought to be argued on behalf of the respondents and the Charity Commissioner that a power of revocation contained in a deed of trust creating a public charitable trust was void as being against public policy. It was argued that though in some cases the trust property may only consist of the property settled by the settlor upon trust, in other cases, it may become augmented by donations given by the public and in the case of an immovable property it would, in such cases, be maintained, repaired and extended out of the amounts donated by the public; and to permit a settlor thereof to revoke the trust and not, only get back to himself his own property buy also the benefit which that property has enjoyed by reason of public donations or the accumulations which have come into being by reason of the public donations would be contrary to public policy. For the very same reason as mentioned above, we feel it equally unnecessary to give any finding on this aspect of the case.
48. In the result, we answer the question submitted to us in the negative, that is, in favour of the accountable persons and against the Department.
49. The Charity Commissioner will be entitled to recover his costs of this reference fixed at Rs. 600, out of the trust funds.
