{"id":138374,"date":"1976-12-17T00:00:00","date_gmt":"1976-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-i-t-west-bengal-iii-calcutta-vs-sri-jagannath-jee-through-on-17-december-1976"},"modified":"2018-08-29T23:44:58","modified_gmt":"2018-08-29T18:14:58","slug":"c-i-t-west-bengal-iii-calcutta-vs-sri-jagannath-jee-through-on-17-december-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-i-t-west-bengal-iii-calcutta-vs-sri-jagannath-jee-through-on-17-december-1976","title":{"rendered":"C.I.T. West Bengal Iii, Calcutta vs Sri Jagannath Jee (Through … on 17 December, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
C.I.T. West Bengal Iii, Calcutta vs Sri Jagannath Jee (Through … on 17 December, 1976<\/div>\n
Equivalent citations: 1977 AIR 1523, \t\t 1977 SCR (2) 483<\/div>\n
Author: V Krishnaiyer<\/div>\n
Bench: Krishnaiyer, V.R.<\/div>\n
           PETITIONER:\nC.I.T. WEST BENGAL III, CALCUTTA\n\n\tVs.\n\nRESPONDENT:\nSRI JAGANNATH JEE (THROUGH SHEBAITS)\n\nDATE OF JUDGMENT17\/12\/1976\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nKHANNA, HANS RAJ\n\nCITATION:\n 1977 AIR 1523\t\t  1977 SCR  (2) 483\n 1977 SCC  (2) 519\n\n\nACT:\n\t     Income  Tax  Act  1922--Sec.  4(3)(i),  22(2)-Trust  for\n\treligious  and\tcharitable  purposes--Whether  deduction  to\n\tdeity or vesting in trustees--If income of deity-Charge\t and\n\tdiversion of income at source.\n\t    Indian Succession Act, 1925--Sec. 87-Will---Construction\n\tof  a Will of  a religious Hindu drafted by English  solici-\n\ttor--Whether court must look into the real intention.\n\n\n\nHEADNOTE:\n\t   Raja\t Rajendra Mullick Bahadur of Calcutta  executed\t his\n\tlast  will    on 21-2-1887.  The author of the\tWill  was  a\n\treligious  minded Indian, the draftsman of the document\t was\n\tJohn  Hart,  an English Solicitor.  The Will open  with\t the\n\twords\t'I   hereby   dedicate\t and   make   debutter\t  my\n\tThakurbaree'.The Income Tax Officer issued notices requiring\n\tfiling\tof the returns\tagainst\t the Deity Thakurbaree.\t  On\n\tb:half\tof  Deity, a nil income return was  filed  under  s.\n\t22(2) of the Indian Income Tax Act, 1922 for the  assessment\n\tyears  1956-57\tand 1957-58.  In connection  with  the\twrit\n\tpetition  filed\t in the High Court for\tthe  proceedings  in\n\trespect\t of assessment years 1955-56 it was conceded by\t the\n\tRevenue\t that  a part of the income of\tthe  assessee  which\n\twould  be proved before the Income Tax authorities  to\thave\n\tbeen  applied in connection with feeding of the\t poor,\tsub-\n\tscription to other charities enuring for the benefit of\t the\n\tpublic would be exempted under s. 4(3)(i) of the Income\t Tax\n\tAct, 1922.\n\t    The Revenue contended that on a true construction of the\n\tsaid  will  there was a complete dedication of the  property\n\tto  the\t Deity and, therefore, the income arising  from\t the\n\tsaid  property was taxable in the hands of Deity.  It\twas,\n\thowever, contended by the assessee that the remuneration  of\n\tthe  trustees  and the allowances to the widows of  the\t de-\n\tceased trustees as provided in the Will created a charge  on\n\tthe  income  of\t the trust estate and  should  therefore  be\n\ttreated\t as diversion of the income of the trust  before  it\n\taccrued in the hand of the trustees.  The Income Tax Officer\n\ttaxed  the  income  of the Deity  deducting  therefrom\tsuch\n\tamounts as were conceded before the High Court in respect of\n\tthe  prior year.  The appeal preferred by the  assessee\t was\n\tdismissed by  the Appellate Assistant Commissioner.   Before\n\tthe Tribunal, the Revenue substantially succeeded.\n\t    Thereafter, the Tribunal referred 4 questions of .law to\n\tthe High Court, two at the instance of the assessee and. two\n\tat the instance. of the Revenue., The High Court on a metic-\n\tulous consideration of the entire Will\t decided against the\n\tRevenue\t and took the view that reading the Will as a  whole\n\tthe  entire  beneficial interest in the properties  did\t not\n\tvest in the assessee Deity. Assessee Deity was not the owner\n\tof  the\t properties and, therefore. the\t only  income  which\n\tcould be subjected to income tax in the hands of the  asses-\n\tsee would be the beneficial interest of the said Deity under\n\tthe Will which would be the expenses incurred for Seva\tPuja\n\tof  the Deity and for the various religious ceremonies\tcon-\n\tnected with the said Deity and the value of the residence of\n\tthe Deity in the temple.\n\tAllowing the appeal,\n\t    HELD:  1. The Will represents pious Bengali\t Wishes\t and\n\tdisposition  but drafted in the hands of an English  Solici-\n\ttor.  The court's function in such an\n\t484\n\tambiguous situations to steer clear of the confusion impart-\n\ted  by\tthe diction and to read the real  intention  of\t the\n\ttestator.   The\t courts\t discerning loyalty is\tnot  to\t the\n\tformalitistic  language used in drawing up the deeds but  to\n\tthe intentions which the disponer desired should take effect\n\tin  the manner\the designed.  The real question\t is  whether\n\tthe testator created  an  absolute   or partial debutter  or\n\twas  there  no dedication to the idol but a vesting  of\t the\n\tlegal  estate  in the trustees.\t The use of the\t words\tlike\n\ttrust, trustees and Shebaits can lend support to the conten-\n\ttion  that the legal estate vested in the  trustees.However,\n\tthe court has to push aside the English hand to reach at the\n\tIndian\theart.\tWe are construing the Will of a pious  Hindu\n\taristocrat whose faith in ritual performances was more\tthan\n\tmatched by his ecumenical perspective. Secondly, the  sacred\n\tsentiment writ large in the Will is his total devotion and\n\tsurrender  to the family Deity Shri Jagannathjee.  It  looks\n\tlike  doing Violence to the heart of the Will if  one  side-\n\tsteps  the Deity to the status of but one of  the  benefici-\n\taries.\tThe Will in the forefront declares the dedication to\n\tthe  Deity.The expression trust, trustees and shebaits\twere\n\tindiscriminately used.\tThe expressions are uncertain of the\n\tprecise\t import of these English legal terms in\t the  Indian\n\tcontext.   The idol was, therefore, the legal owner  of\t the\n\twhole and liable to be assessed as such.  [485A, B, C, 490F,\n\t491B, C-D, 497D, 499E]\n\t   2.  The court negatived the contention that even  if\t the\n\tproperty vested in the Deity, all the amounts to be spent on\n\tthe  Shebaits and the members of their family on the  upkeep\n\tof  horses and carriages and repair of buildings  etc.\twere\n\tcharge\ton the income and, therefore, the same did  not\t and\n\tcould not come into the hands of the Deity as his income and\n\tcould  not be taxed as such.  If the Shebaits received\trent\n\tand interest to the extent of these other disbursements they\n\treceived the amounts merely as collectors of rents etc.\t and\n\tnot  as receivers of income.  The terms in which the  direc-\n\ttions  are couched  do not divest the income at\t the  source\n\tbut  merely  direct a Shebait to apply the  income  received\n\tfrom   the  debutter  properties  for  specified   purposes.\n\t[499E-H, 501F-G]\n\n\n\nJUDGMENT:\n<\/pre>\n
\tCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1682-1683\/\n<\/p>\n
\t71.
\n\t    (From the Judgment and Order dated the 14th May 1969  of
\n\tthe Calcutta High Court in I.T. Ref. No. 60 of 1968)
\n\tG.C. Sharma and R.N. Sachthey, for the appellant
\n\tB.  Sen, S.K. Banerice and P.K. Mukherjee,  for\t respondent.
\n\tThe Judgment of the Court was delivered by
\n\t    KRISHNA  IYER,  J.–The fiscal–not\t the  philosophical-
\n\timplications  of  Jesus’  pragmatic  injunction\t ‘Render  to
\n\tCeasar\tthe things that are Caesar’s, and to God the  things
\n\tthat are God’s–fall for jural exploration in these  appeals
\n\tby  special  leave, the appellant being the Union  of  India
\n\trepresented by the Commissioner of Income-tax, West  Bengal,
\n\tand the Respondent, Sree Jagannathji and the  subject-matter
\n\tthe  taxability of the deity Jagannathji by the State  under
\n\tthe  Income-tax\t Act, 1922, beyond the admitted\t point.\t  To
\n\tappreciate  the exigibility issue, we have to flash back  to
\n\t19th  Century Bengal and the then prevailing societal  ethos
\n\tof affluent Hindu Piety, and we find ourselves in the  spir-
\n\titual-legal  company of Raja Rajendra Mullick, at once\tholy
\n\tand wealthy, who, in advancing years, executed a  comprehen-
\n\tsive  will  to\tpromote his cherished godly  wishes  and  to
\n\tprovide\t for  his secularly dear cause and  near  relatives.
\n\tThe construction  of  this testamentary complex of  disposi-
\n\ttions and the location of its destination are the  principal
\n\texercises in these appeals.\n<\/p>\n
\t485<\/span><\/p>\n
\t    Raja  Rajendra Mullick Bahadur of Calcutta executed\t his
\n\tlast  will  and testament on 21 February  1887.\t  While\t the
\n\tauthor\tof the will was a Bengali brahmin of the  last\tcen-
\n\ttury,  the draftsman of the document was John Hart, an\tEng-
\n\tlish  solicitor.   While  the author’s\twishes\tare  usually
\n\ttransmitted into the deed by the draftsman, the diction\t and
\n\taccent are flavoured by the draftsman’s\t ink.  So it happens
\n\tthat this will represents pious Bengali wishes and  disposi-
\n\ttions–but  draped in an English Solicitor’s legalese.\t The
\n\tCourt’s function in such an ambiguous situation is to  steer
\n\tclear of the confusion imparted by the diction and to  reach
\n\tthe  real  intendment (of the testator). Such  an  essay  in
\n\tascertaining  the  true intent of Raja Rajendra\t Mullick  if
\n\tfraught\t with  difficulties and our guideline has to  be  to
\n\tpick it\t up from the conspectus of clauses–rather than from
\n\tparticular  expressions\t or  isolated  features.   Only\t the
\n\ttotality tells the story of  the author’s mind as he  unbur-
\n\tdened himself of his properties for causes and purposes dear
\n\tto his heart.  The Court’s discerning loyalty is not to\t the
\n\tformalistic language used in drawing up the deed but to\t the
\n\tintentions which the disponer desired should take effect  in
\n\tthe  manner  he designed.  This\t hack-drop  of\tobservations
\n\tmade, we proceed to a broad delineation of the actual provi-
\n\tsions.\n<\/p>\n
\t    The\t munificent  testator had enormous  estates,  lavish
\n\tcharity, piety aplenty and a large family.  So he trifurcat-
\n\ted  his assets as it were, provided for\t religious  objects,
\n\teleemosynary  purposes and members of his family.  The\tlast
\n\twas  distinctly\t and separately dealt with and\twe  are\t not
\n\tconcerned with the bequests so made.  But the first two were
\n\tmore or less lugged together and ample properties  earmarked
\n\ttherefore.  How did he engineer into legal effect these twin
\n\tpurposes  ?  Did  he create an absolute\t debutter  of  these
\n\tproperties,  totally  dedicating  them to  the\tdeity  whose
\n\tdevotees he and his father were, coupled with several direc-
\n\ttions,\taddressed  to the shebaits, for application  of\t the
\n\tincome for performance of stated pujas, execution of  public
\n\tcharitable  projects and payment of remuneration  for  sheba
\n\tplus liberal grants and facilities to the sons and widows of
\n\tsons  who  were\t objects of his bounty?\t Or  did  he  really
\n\tcreate\ta trust in the sense of the English law vesting\t the
\n\twhole estate in trustees saddled with  obligations to expend
\n\tthe  income for enumerated  items, godly and  philantrophic,
\n\tcreating  but a partial debutter?  This is the key  question
\n\tcalling\t for adjudication but an alternative but  interlaced
\n\tissue  also arises. Assuming that a total debutter had\tbeen
\n\tcreated,  did  the will contain directions  for\t expenditure
\n\twhich siphoned off the income, as it accrued, for  specified
\n\tobjects and entities in such manner that by such over-riding
\n\tdiversion  at the source, such income did not get  into\t the
\n\thands  of  Lord\t Jagannath qua His income  but\treached\t Him
\n\tmerely\tas collector of. those receipts to be disbursed\t for
\n\tmeeting\t those paramount claims and charged for\t those\tdes-
\n\ttined  uses  ? Or could it be the true\tmeaning\t     of\t the
\n\tclauses that the whole income was to be derived by the deity
\n\tbut  later to be applied by the human agencies\trepresenting
\n\tHim for fulfiling objects, secular and sacred?\n<\/p>\n
\t    A  skeletal picture of the complex of provisions of\t the
\n\twill  has to be projected now for a better understanding  of
\n\tthe pros and cons of
\n\t486<\/span>
\n\tthe  controversy.  The will opens with the words: ‘I  hereby
\n\tdedicate  and make debutter my Thakoorbaree’ and mentions  a
\n\tmansion\t which\tis to be the abode of his  God.\t  ‘I  hereby
\n\tgive,  dedicate and make dabuttar all the jewels…  hereto-
\n\tfore  used,  for the worship of the Thakoors…\t is  another
\n\tracital\t whereby   valuables are  dedicated. These  are\t for
\n\tdirect use and both the Lord’s mansion and the Lord’s adorn-
\n\tments  yield  great spiritual bliss but no  secular  income.
\n\tPrima facie, the language is unmistakable and a full dedica-
\n\ttion  and, argues Shri Sharma for the Revenue, the  creation
\n\tof  absolute  debutter\tis  an\tunchallengeable\t  inference.
\n\tEqually\t indisputable  is the character of the last  of\t be-
\n\tquests to his sons (save one who has been disinherited)\t and
\n\twidows of deceased sons and these are admittedly out of\t the
\n\tarea  of  dispute  before us.  But  in\t between  lies\t the
\n\testate\t(including securities) which yields high income\t and
\n\tis  disposed of in terms which lend themselves\tto  contrary
\n\tconstructions, marginal\t obscurity  and conceptual mix-up of
\n\tideas  borrowed\t from English and Hindu law.  ‘I  do  hereby
\n\tgive,  dedicate\t and make debutter in the name and  for\t the
\n\tworship of my Thakoor Sree Sree Jagannath Jee the  following
\n\tproperties’–so run the. words which are followed by a\tlist
\n\tof  properties and a string of directions addressed to\t‘sh-
\n\tebaits and trustees’ or ‘shebaits or trustees’ or these\t two
\n\tindifferently  and  indiscriminately mentioned singly.\t  He
\n\teven  directed a board of trustees to be constituted in\t the
\n\tevent  of male heirs failing, to take over  shebaitship\t and
\n\texecution  of  the trusts–and here and\t there\treferred  to
\n\ttrusts under the deed. Nor were all the incomes to be devot-
\n\ted to pooja.  His cultivated and compassionate mind had many
\n\tkindly concerns and finer pursuits.\n<\/p>\n
\t    The enlightened donor appears to have had an aristocrat-
\n\tic  and aesthetic flair for promoting the joy of life and  a
\n\tphilanthropic  passion to share it, even posthumously,\twith
\n\tthe  public at large.\tHis charitable disposition seems  to
\n\thave   overpowered  his love of\t castemen and  his  kindness
\n\tfor living  creatures  claimed a   share  of  his  generosi-
\n\tty.   These noble and multiple\tinstincts persuaded him\t  to
\n\tmake an art collection which could be reckoned as among\t the
\n\tbest  an individual could be proud of anywhere in the  world
\n\tand  these paintings and sculptures, he directed,  shall  be
\n\tkept  open  for public delight, free of charge.\t   He  main-
\n\ttained\ta glorious garden which he wished should be kept  in
\n\tfine trim and be hospitable for any member of the public who
\n\tliked  to relax in beautiful surrounds.\t  His  compassionate
\n\tsoul  had, in lofty sentiment of fellow-feeling,   collected
\n\tbirds\tand  non-carnivorous animals.  But, after  him,\t the
\n\taviary\tand meanagerisa were to be taken care of and  lovers
\n\tof  birds  and animals were, according to  his\ttestamentary
\n\tdirection,  permitted  to seek retreat\tand  pleasure  among
\n\tthere  natural environs.   Of course, he rewarded  his\tsons
\n\tand  widows sumptuously, the lay-out on the rituals of\twor-
\n\tship consuming but a portion of the total income.
\n\t    At this stage, the litigative journey may be sketched to
\n\tindicate  how the dispute originated, developed\t and  gained
\n\taccess\tto  this Court, The story of this  tax\tentanglement
\n\tbegan nearly two decades ago with the I.T.O. issuing notices
\n\tand  the assessee deity responding with ‘nil’ returns  under
\n\ts. 22(2) of the Indian Income-tax Act, 1922 for\t the
\n\t487<\/span>
\n\tassessment  years 1956-57 and 1957-58.\t A  portion  however
\n\twas, by legitimate concession of the Income Tax\t Department,
\n\tcarved\tout of the total income as non-taxable.\t   According
\n\tto the High Court.\n<\/p>\n
\t\t      “When the proceedings for the assessment\tyear
\n\t\t      1955-56  were  pending before the\t Income\t Tax
\n\t\t      Officer,\t the assessee had flied an  applica-
\n\t\t      tion  under Art.\t 226 of the Constitution  of
\n\t\t      India and had obtained an interim stay against
\n\t\t      the said proceedings.   It appears that on the
\n\t\t      9th  October 1961 in terms of  the  settlement
\n\t\t      arrived  at between the  Income Tax Department
\n\t\t      and the assessee the interim stay of  proceed-
\n\t\t      ings  was\t vacated.   It was recorded  in\t the
\n\t\t      said  order  that part of the  income  of\t the
\n\t\t      assessee\twhich  would be\t proved\t before\t the
\n\t\t      Income Tax Authorities to have been applied
\n\t\t      in  connection with (a) feeding of  the  poor,\n<\/p><\/blockquote>\n
\t\t      (b)  subscription to other  charities  enuring
\n\t\t      for the benefit of the public would be exempt-
\n\t\t      ed under s. 4(3)(i) of Indian Income-tax\tAct,
\n\t\t      1922.”\n<\/p><\/blockquote>\n
\tWe  regard this stand of the Revenue as correct in the light
\n\tof  the provisions of s.4(3) (i) and hold, in  limine,\tthat
\n\twhatever  the outcome of the contest, the amounts  spent  on
\n\tpoor  feeding and other public charitable purposes are\tout-
\n\tside  the reach of the tax net and are totally exempt.\t  We
\n\tmay,  in fairness, state here that counsel for the  Revenue,
\n\tShri Sharma, rightly agreed that the correct legal position,
\n\ton a sound understanding of s.4(3) (i) of the Act, was\tthat
\n\tthese  charitable expenditures were totally deductible\tfrom
\n\tthe computation for fixing the tax.\n<\/p>\n
\t    Let us continue the later developments.   For assessment
\n\tfor  the  year\t1956-57 the Income-tax Officer\twas  of\t the
\n\topinion, on the construction of the said will, that  besides
\n\tdirections  for spending amounts on charitable objects,\t the
\n\twill  had also provided for payment of certain fixed  allow-
\n\tances  to the acting shebaits as well as the widows  of\t the
\n\tdeceased shebaits, maintenance of horse-drawn carriages\t and
\n\tmotor cars for the use of the shebaits, medical aids to\t the
\n\tshebaits,  and\tthe members of their families,\texpenses  on
\n\taccount of Srardh caremony of the ancestors of the  shebaits
\n\tand other private charities.   On behalf of the assessee  it
\n\twas  claimed  before the ITO that the  remuneration\t the
\n\ttrustees  and the allowances to the widows of  the  deceased
\n\ttrustees as  provided  in  the\twill  created  a charge\t  on
\n\tthe  income  of the  Trust  estate  and should therefore  be
\n\ttreated as diversion of the income  of\tthe trust  before it
\n\taccrued\t in  the hands of the trustees.\t  The  ITO  rejected
\n\tthat contention.   lie held that reading the will as a whole
\n\tit  was clear that the remuneration to the shebaits and\t the
\n\tallowances  to\tthe widows were merely applications  of\t the
\n\ttrust income and as  such not deductible.   According to the
\n\tITO,  under  the will, the shebaits and\t trustees  were\t to,
\n\tcollect\t  the income of the whole debutter property  in\t the
\n\tfirst instance and after paying the government revenues\t and
\n\ttaxes  and rates and other outgoings, perform the  puja\t and
\n\tthe other ceremonies for the worship of the family deity and
\n\ttherefore  spend amounts on charitable and  public  purposes
\n\tand   lastly  to  pay  the  remuneration,   allowances\t and
\n\t1546SCI\/76
\n\t488<\/span>
\n\tprivate donations.   The ITO therefore determined the income
\n\tof    the trust estate under ss. 9 and 12 of the Indian\t In-
\n\tcome. Tax Act, 1922 and computed income from property at Rs.
\n\t1,94,377\/-  and\t income\t from other sources  at\t Rs.  97,248
\n\tmaking\ta   total  of Rs. 2,91,625\/-.\tFrom  the  above  he
\n\tdeducted  the  amounts spent on charitable objects  such  as
\n\tfeeding of the poor, maintenance of art gallery and manager-
\n\tie  for\t birds and non-carnivorous animals.   A sum  of\t Rs.
\n\t1,32,023\/-  was\t subjected to tax for  the  assessment\tyear
\n\t1956-57.   The\tITO  followed the  same\t principle  for\t the
\n\tassessment year 1957-58 and determined the assessable income
\n\tat Rs. 1,06,067\/-.\n<\/p>\n
\t    The\t assessee  preferred appeals  before  the  Appellate
\n\tAssistant  Commissioner, who passed a consolidated order  on
\n\tNovember  25, 1963 dismissing the assessee’s appeals on\t all
\n\tthe grounds.\n<\/p>\n
\t    On appeal to the Tribunal, a full legal debate  followed
\n\tand,  while the Revenue won substantially, some\t items\tmore
\n\twere held exempt on the holding that the direction contained
\n\tin the will for the expenditure on the performance of  Sradh
\n\tand other ceremonies for the spiritual benefit of the testa-
\n\ttor  and his ancestors must also be held to  be\t obligations
\n\tcreated\t by the testator which the trustees or the  shebaits
\n\twere obliged to discharge before applying the income for the
\n\tbenefit\t of the deity. Both parties moved the  Tribunal\t for
\n\treferring certain questions of law under s. 66( 1 ) and\t the
\n\tsequel\twas a reference of two questions at the instance  of
\n\teach.\tThe  four questions may be set out as  the  starting
\n\tpoint of the discussion:\n<\/p>\n
\t\t      “(  1 ) Whether on a proper  construction\t  of
\n\t\t      the  will\t of the late Raja  Rajendra  Mullick
\n\t\t      dated  21St  February 1887, the  Tribunal\t was
\n\t\t      fight  in rejecting the assessee’s claim\tthat
\n\t\t      the  only incomes which could be subjected  to
\n\t\t      income-tax  in the hands of the deity Sri\t Sri
\n\t\t      Jagannath Jee are the beneficial interests  of
\n\t\t      the said deity under the terms of the will  as
\n\t\t      represented  by the expenses incurred  by\t the
\n\t\t      shebaits for the daily Seva Puja of the  deity
\n\t\t      and  the performance of the various
\n\t\t      religious\t ceremonies connected with the\tsaid
\n\t\t      deity as mentioned in the will ?\n<\/p><\/blockquote>\n
\t\t      (2) If the answer to the above question be  in
\n\t\t      the positive, whether on the facts and in\t the
\n\t\t      circumstances  of\t the ease and  on  a  proper
\n\t\t      interpretation of the terms of the will of the
\n\t\t      late Raja Rajendra Mullick Bahadur, the Tribu-
\n\t\t      nal  was\tright in holding that  the  expenses
\n\t\t      incurred\tfor payment of remuneration  to\t the
\n\t\t      shebaits,\t and the monthly allowances paid  to
\n\t\t      the  widows of the deceased shebaits, as\talso
\n\t\t      the   expenditure\t incurred  for\t maintaining
\n\t\t      horses, carriages or motor cars for the use of
\n\t\t      shebaits\tconcerned  and the annual  value  of
\n\t\t      such part of the debutter property as is being
\n\t\t      used  by the shebaits and their  families\t for
\n\t\t      the  purpose of their residence, all in  terms
\n\t\t      of the aforsaid will, could be included in the
\n\t\t      total income of the assessee in this case ?
\n\t\t      (Questions referred by assessee)
\n\t\t      489<\/span>
\n\t\t      (3)  Whether, on the facts and in the  circum-
\n\t\t      stances of the case and on a proper  construc-
\n\t\t      tion  of\tthe will of  Raja  Rajendra  Mullick
\n\t\t      executed on the 21st February 1887 the  Tribu-
\n\t\t      nal  was right in holding that the surplus  of
\n\t\t      the  income of the estate after defraying\t the
\n\t\t      expenses\tmentioned in the said will was\theld
\n\t\t      in trust for charitable purposes and was\tthus
\n\t\t      exempt  from taxation under s.4(3) (i) of\t the
\n\t\t      Indian Income tax, Act 1922 ?\n<\/p><\/blockquote>\n
\t\t      (4)  Whether, on the facts and in the  circum-\n<\/p><\/blockquote>\n
\t\t      stances  of  the\tcase   and    on  a   proper\n\t\t      construction    of    the aforesaid  will\t the\n<\/pre>\n
\t\t      tribunal\t was  right  in\t holding  that\t the
\n\t\t      amounts  spent for performing Sradh and  other
\n\t\t      ceremonies  for the Spiritual benefit  of\t the
\n\t\t      testator\tas well as subscriptions  and  dona-
\n\t\t      tions   to   charitable  societies   and\t for
\n\t\t      charitable purposes were diverted by an  over-
\n\t\t      riding title and was accordingly to be exclud-
\n\t\t      ed from the total income\tof the Deity ?”
\n\t\t      Questions referred by the CIT)
\n\t\t\t  The High Court, on a meticulous considera-
\n\t\t      tion  of the entire will, decided against\t the
\n\t\t      Revenue on the spinal issue and took the\tview
\n\t\t      that
\n\t\t      “reading\tthe  will as a whole we are  of\t the
\n\t\t      opinion that the entire beneficial interest in
\n\t\t      the  properties did not vest in  the  assessee
\n\t\t      deity.   The assessee deity was not the  owner
\n\t\t      of the properties.   Therefore the only income
\n\t\t      which could be subjected to income tax in\t the
\n\t\t      hands  of\t assessee would\t be  the  beneficial
\n\t\t      interest\tof the said deity under\t  the  will,
\n\t\t      which would be expenses incurred for the\tseva
\n\t\t      puja  of the deity and for the  various  reli-
\n\t\t      gious ceremonies connected with the said deity
\n\t\t      and the value of the residence of the deity in
\n\t\t      the Temple.”\n<\/p><\/blockquote>\n
\tThe back of the State’s contention was thus broken but, even
\n\tthough vanquished, by special leave it.sought to agitate  in
\n\tappeal\tthe case that the testator had created\tan  absolute
\n\tdebutter  of the whole estate, and not a trust\twith  estate
\n\tvested\tin  the trustees, that the directions given  to\t the
\n\t‘shebaits  and trustees’ were mere mandates for\t application
\n\tof the income in the hands of the deity and not\t over-tiding
\n\tdiversion  at the source and so all the receipts, save\twhat
\n\thad been excluded by  the. officer, were exigible to tax.
\n\t    Although  it may not be strictly pertinent as a  circum-
\n\tstance to spell out the intention of the testator, it may be
\n\tof value as background material to have a sample break-up of
\n\tthe figures of expenditure laid
\n\t490<\/span>
\n\tout  in\t fact in one of the assessment years.  We  give\t the
\n\tactuals for 1956-57:\n<\/p>\n
\t\t\t\t\t\t\t\t   Rs.<\/p>\n
\n\t\t      (1)Expenses incurred for the poojas\n\t\t      specified\t\tfor\t    the\t\twill\n\t\t      4,637\/-\n<\/pre>\n
\t\t      (2)The  money  laid out on  feeding  the\tpoor
\n\t\t      78,295\/-\n<\/p><\/blockquote>\n
\t\t      (3)The  cost  of maintaining the\tart  gallery
\n\t\t      36,963\/-\n<\/p><\/blockquote>\n
\t\t      (4)  Upkeep  of  the   aviary  and   menagerie
\n\t\t      13,263\/-\n<\/p><\/blockquote>\n
\t\t      (5)   Cost   of  keeping\t the   garden\ttrim
\n\t\t      2,979\/-\n<\/p><\/blockquote>\n
\t\t      (6)      Other\t  miscellaneous\t     charges\n\t\t      4,014\/-\n\t\t      (7) Expenses laid out on the shebaits\n<\/pre>\n
\t\t      and trustees, their residence and main
\n\t\t      tenance  of  the\thorse-drawn  carriages\t etc
\n\t\t      66,254\/-<\/p><\/blockquote>\n
\t    It is fair to comment that,\t even making  allowance\t for
\n\tannual variations, price fluctuations and change in  circum-
\n\tstances, the pujas consume but a small fraction, that public
\n\tcharitable  purposes  bulk prominently in the  budgeted\t ex-
\n\tpenditure  and\tthat  the sums spent on\t the  ‘shebaits\t and
\n\ttrustees’  are liberal enough to exceed prudent\t reward\t for
\n\tservices.    To set the record straight, it must  be  stated
\n\tthat a preponderant part of the income was spent on  general
\n\tpublic\tcharitable  causes like poor feeding,  art  gallery,
\n\taviary, menagerie and keeping a garden.\t  Together with\t the
\n\tcost  of  the rituals the budget  was  dominently  religion-
\n\tcharitable.    These facts have no bearing on the  construc-
\n\ttion of the will but invests the perspective with a touch of
\n\trealism.\n<\/p>\n
\t    We\tmay now tackle the crucial problem in the  case–the
\n\tdecoding of the will to discover the repository of the gift.
\n\tDid  the  testator create an absolute or  partial  debutter?
\n\tOr was there no dedication to the idol but a vesting of\t the
\n\tlegal estate  in the trustees (in  the sense of the  English
\n\tlaw) with figuciary  obligations to expend     for  specific
\n\tpurposes.     Shree  Jagannathjee  ranking  as\t one   among
\n\tthe recipients of his benefactions ?   The use of words like
\n\t‘trusts’,  ‘shebaits and trustees’ has lent muscle  to\tthis
\n\tlogomachic  exercise but we have to push aside\tthe  English
\n\thand to reach at the Indian heart.\n<\/p>\n
\t    The\t principles governing the situation are those  which
\n\trulings\t of courts, imbibing the Indian ethos,\tappreciating
\n\tthe  Hindu sacred sentiments and applying the law  of  reli-
\n\tgious  and  charitable trusts gathered from  ancient  texts,
\n\thave  crystallised into an informal  code.   The passage  of
\n\tdecades\t after\tthe enactment of the  Constitution  has\t not
\n\tsucceeded  in persuading Parliament into legislative  action
\n\tfor  making   a secular code except of some  limited  extent
\n\tgoverning  the\tsubject of Indian  charitable  trusts.\t And
\n\tthis   unnoticed   parliamentary  procrastination  has\tcom-
\n\tpelled\tthe courts to dive into hoary books    and’  vintage
\n\tcase-law to ascertain the current  law.\t  We will  therefore
\n\tnavigate,  with this ancient mariner’s compass, although  we
\n\thave the advantage of an authoritative work in B.K.  Mukher-
\n\tjea on Hindu Law Religious and Charitable Trusts, relied  on
\n\tby counsel on both sides.\n<\/p>\n
\t491<\/span><\/p>\n
\t    Two paramount background considerations of assistance to
\n\tdecipher the intention of the testator, which have  appealed
\n\tto  us, may be mentioned first.\t We are construing the\twill
\n\tof a pious Hindus aristocrat whose faith in ritual  perform-
\n\tances was more than matched   by his ecumenical perspective,
\n\twhose anxiety for spiritual merit for himself and his  manes
\n\twas  balanced by a universal love and compassion.  Secondly,
\n\tthe  sacred  sentiment writ large in the will is  his  total
\n\tdevotion  and surrender to the family deity  Sree  Jagannath
\n\tJee.\n<\/p>\n
\t    It\tis  easy to see that, in formal\t terms,\t the  author
\n\tmakes  a  dedication  to Sree Jagsmath\tJee  and  calls\t the
\n\tproperties   debutter.\t   But\t Shri  B.   Sen,   for\t the
\n\trespondents,.contests the finality of such a verbal test and
\n\tcounters  it by reliance on expressions like  ‘shebaits\t and
\n\ttrustees’  and\t‘trusts’ and urges that there are  no  clear
\n\twords of vesting so far as the second category of properties
\n\tis  concerned.\t It is trite but true that while  the  label
\n\t‘debutter’ may not clinch the legal character, there is much
\n\tin  a name, fragrant with profound sentiment and  expressive
\n\tof  inner dedication.\tIt looks like doing violence to\t the
\n\theart of the will if we side-step Sree Jagannath Jee as\t the
\n\tdivine dedicatee, down-grade him to the status of but one of
\n\tthe  beneficiaries and; by judicial  construction,  transmit
\n\tthe  sanctified estate into human hands as the legal  owners
\n\tto  distribute the income, one of the several objects  being
\n\tdoing pujas prescribed.\n<\/p>\n
\t    The\t will, right in the forefront, declares:  ‘I  hereby
\n\tdedicate  make\tdebutter’, ‘I do hereby\t dedicate  and\tmake
\n\tdebutter in the name and for the worship of my Thakoor\tSree
\n\tSree  Jagannath Jee the following properties…’  ‘I  hereby
\n\tgive,  dedicate and make debutter all the jewels … to\t the
\n\tsaid  Thakoor  Sree Sree Jagannathjee’.\t  These\t solemn\t and
\n\temphatic dedicative expressions cannot be wasted  words used
\n\tby an English Solicitor but implementatory of the  intention
\n\tof  the\t donor whose inmost spiritual  commitment,  gathered
\n\tfrom  the  many clauses, appears to be\ttowards\t his  family
\n\tThakoor.   Of  course,\tif there are  the  clearest  clauses
\n\tstriking  a contrary note and creating but a partial  debut-
\n\tter, this dedicative diction must bow down.  The law is\t set
\n\tdown thus by B.K. Mukerjea:\n<\/p>\n
\t\t      “The  fact  that property\t is  ordinarily\t de-
\n\t\t      scribed  as Debutter is certainly a  piece  of
\n\t\t      evidence\tin  favour of  dedication,  but\t not
\n\t\t      conclusive.   In Binod Behari v. Manmatha\t (21
\n\t\t      C.L.J. 42) Cox J. observed as follows :–
\n\t\t\t    “The  fact that the property  is  called
\n\t\t      Debutter is a doubtless evidence in the plain-
\n\t\t      tiff’s favour but it does not relieve them  of
\n\t\t      the whole burden of proving that the land\t was
\n\t\t      dedicated and is inalienable.”<\/p><\/blockquote>\n
\t\t      (p. 131)
\n\tThough\tinconclusive it carries weight in the light of\twhat
\n\twe may call the mission of the disposition which is inspired
\n\tby devotion to ‘my Thakoor’ and animated by a general  reli-
\n\tgious fulfilment.   It must be
\n\t492<\/span>
\n\tremembered  that the donor was not tied down by\t bigotry  to
\n\tperformance  of pujas, important though they were.   A\tmore
\n\tcosmic and liberal view of Hinduism informed his soul and so
\n\tin  his\t declaration of dedication to Sree  Jagannathjee  he
\n\taddressed  to  the  managers many directions  of  a  broadly
\n\treligious and charitable character.   His injunction to feed
\n\tthe  poor  was\tNarayana Seva, for worship  of\tGod  through
\n\tservice\t of  man  in a land where the  divinity\t in  daridra
\n\tnarayana is conceptually commonplace and, while it is overt-
\n\tly secular, its motive springs from spiritual source&  It is
\n\treligion to love the poor.   Likewise, his insistence on the
\n\taviary\tand  the menageries and throwing open  both  to\t the
\n\tpeople\tto  see and delight is not a mundane mania  but\t has
\n\tdeeper religious roots.\t  Hinduism worships all creation:
\n\t(peace\tbe unto all bipeds and even so to all  quadrupeds)).
\n\tIndeed, the love of sub-human brethren. is high religion.
\n\tFor
\n\t\t      “He prayeth best, who loveth best
\n\t\t      All things both great and small,
\n\t\t      For the dear God who loveth us,
\n\t\t      He made and loveth all.”\n<\/p>\n
\t\t      (Coleridge, in Ancient Mariner)
\n\tFrom  the Buddha and Mahavira to St. Francis of Assissi\t and
\n\tGandhiji,  compassion  for living creatures  is\t a  profound
\n\treligious motivation. The sublime mind of Mullick was  obvi-
\n\tously  in   religious  sympathy with  fellow-beings  of\t the
\n\tlower  order  when he should this tenderness  to  birds\t and
\n\tbeasts and shared it with the public.\tThe art gallery\t too
\n\thad link with religion in its wider connotation although  it
\n\tis  plainer  to\t regard it as a gesture\t of  aesthetics\t and
\n\tcharitable  disposition.    God is Truth, Truth\t is  beauty,
\n\tbeauty\tTruth.\t A thing of beauty is a joy for\t ever.\t  In
\n\tfact,  for  a highly elevated Indian mind,  this  conceptual
\n\tnexus is not far-fetched. The garden and the 1love of  flow-
\n\ters strike a psychic chord at once beautiful and religiously
\n\tmystical, as any reader of Wordsworth or other great poet in
\n\tEnglish\t or  Sanskrit  will agree. The\tpoint  is  that\t the
\n\tmultiform  dispositions\t  had been united  by\ta  spiritual
\n\tthirst and, if read in their  integrality, could be   desig-
\n\tnated  religions-cum-charitable.  In sum, the  primary\t in-
\n\ttendment  was  to dedicate as debutter and to direct fulfil-
\n\tment of uplifting religions and para-religious purposes, the
\n\tfocus being on worship of Sree Jagannathjee and the fall-out
\n\tsome  subsidiary,  yet significant,  charitable\t items.\t The
\n\tfiner note struck by the felt  necessities of his soul\t was
\n\tdivinised  and\thumanised,  the central\t object\t being\tSree
\n\tJagannathji, the Lord of the Universe.\n<\/p>\n
\t    Of course Sri Sen submits that verbalism cannot take  us
\n\tfar  and  the  description of debutter\tcannot\tbe  decisive
\n\tbecause the magnitude of the expenses on the various  items,
\n\tapart from other telling clauses
\n\t493<\/span>
\n\twhich  will  presently advert to, was indicative  not  of  a
\n\tdedication  to the idol but of the general charitable  bunch
\n\tof  dispositions  to be carried out through  the  agency  of
\n\ttrusteeship  in the sense of the English Law. For  instance,
\n\the  argues  that feeding the poor, maintenance\tof  the\t art
\n\tgallery,  menagerie, aviary and gardens and  fulfilment\t  to
\n\tthe other’ charities have little to do with idol  qua  idol.
\n\tMoreover, making a substantial margin for the\tremuneration
\n\tof  the\t Shebaiti, there is some clear excess in  favour  of
\n\tdonor’s family members in the amounts to be paid or spent on
\n\tbehalf\tof the shebaits-cum-trustees.\tThese  are  strongly
\n\tsuggestive of a non-debutter  character, especially  because
\n\tthe  cost of the poojas makes but a small bite on the  total
\n\tincome.\t  He reinforces the submission by many other  points
\n\twhich  may be mentioned at this stage.\t He states that\t the
\n\tdonor, if he meant a straightforward case of debutter, would
\n\thave confined himself to the expression ‘shebaits’ but there
\n\twas  a sedulous combination of ‘shebaits’ and or  ‘trustees’
\n\tand  there  was\t also reference to trusts  in  some  places.
\n\tProvision  for the heirs, for the residence of\tthe  shebai-
\n\ttee’s families, the norse carriages and the like also do not
\n\tsmack of debutter.  A specification of the minimum age of 18
\n\tto become shebaits and trustees also savours of\t trusteeship
\n\trather\tthan shebaitship.  Appointment of  a Board of  Trus-
\n\ttees on shebaits failing in succession throws clear light on
\n\tthe  creation of a trust in the English sense rather than  a
\n\tdebutter in the Hindu sense.  Again, shebaitship is property
\n\tand  if what is created is only shebaitship,  not   trustee-
\n\tship, how  can the  testator  exclude females, insist on  18
\n\tyears of age and prescribe a course of succession not  quite
\n\tconsistent with Hindu law? Does this not also point  towards
\n\ttrusteeship  and away from debutter?   In any case,  a\tfair
\n\tconclusion,  according\tto Sri Sen, would be to\t regard\t the
\n\tappointees as shebaits for purposes of pooja and  management
\n\tof  the\t shrine and as trustees for  the  other\t substantial
\n\tpurposes.    Which  means that there is a  partial  debutter
\n\tand the vesting of the estate in the trustees.
\n\t    There if other evidence to be gleaned from the tenor  of
\n\tthe  will to which our attention has been drawn by  Sri\t Sen
\n\twith a view to emphasize that public charities of a  secular
\n\tcharacter,  construction  of buildings\tfor  residence,\t for
\n\tfeeding the poor, repairs and maintenance of a miscellaneous
\n\tsort  plus  detailed  directions towards  all  shebaits\t and
\n\ttrustees are telling against absolute debutter.\t  Since\t the
\n\texpenses for the poojas cover only a small part of the total
\n\tincome,\t a correct reading of the will may be to  hold\tthat
\n\tthe  corpus  vests in the trustees, subject to\tan  interest
\n\tbeing created in the deity to the extent of the share of the
\n\tincome\treasonably necessary for the pooja and residence  of
\n\tthe Lord.   We see force in these submissions and shall deal
\n\twith them presently.   Before that we may state the  correct
\n\tlegal  approach\t as set out by Mukherjea in his\t Tagore\t Law
\n\tlectures:\n<\/p>\n
\t\t      “Even when a deal of dedication is not  ficti-
\n\t\t      tious  or\t benami the provisions of  the\tdeed
\n\t\t      might  show that the benefit intended for\t the
\n\t\t      deity  was very small or of a nominal  charac-
\n\t\t      ter. If the gift to the deity is wholly  illu-
\n\t\t      sory there is no Debutter
\n\t\t      494<\/span>
\n\t\t      in the eye of law, but there are cases where a
\n\t\t      question\tarises\ton the construction  of\t the
\n\t\t      document itself, whether the endowment created
\n\t\t      was  only a partial one  meaning thereby\tthat
\n\t\t      the  dedicated property did not actually\tvest
\n\t\t      in  the idol, but the latter enjoyed a  charge
\n\t\t      upon  the\t secular property  of  the  founder,
\n\t\t      given to his heir or other relations, for\t the
\n\t\t      expenses of its worship.\t I will discuss this
\n\t\t      matter  separately under the second head.\t   I
\n\t\t      may only state here that where there is an out
\n\t\t      and out dedication to an idol, the reservation
\n\t\t      of  a  moderate portion of the income  of\t the
\n\t\t      endowed  estate  for the remuneration  of\t the
\n\t\t      shebait  would  not invalidate  the  endowment
\n\t\t      either  as  a whole or to the  extent  of\t the
\n\t\t      income  so  served.  In Jadu  Nath  v.  Thakur
\n\t\t      Sitaramji (44 I.A. 187) there was a dedication
\n\t\t      of  the entire property of the founder to\t the
\n\t\t      idol, and the direction given was that half of
\n\t\t      the  income was to be applied for the  worship
\n\t\t      of the idol and repairs of the temple, and the
\n\t\t      other  half  was to go for the upkeep  of\t the
\n\t\t      managers.\t  Their\t Lordships of  the  Judicial
\n\t\t      Committee\t in  holding  the gift\tas  a  valid
\n\t\t      Debutter observed as follows :—
\n\t\t      “The deed ought to be read just as it appears,
\n\t\t      and there is no reason why it should not be so
\n\t\t      construed as meaning simply what the  language
\n\t\t      say%  a gift for the maintenance of  the\tidol
\n\t\t      and  the\ttemple, under which the idol  is  to
\n\t\t      take  the\t property,  and for  the  rest,\t the
\n\t\t      family are to be the administrators and manag-
\n\t\t      ers and to be remunerated with half the income
\n\t\t      of the property.\tIf the income of the proper-
\n\t\t      ty  had been large a question might have\tbeen
\n\t\t      ‘raised, in the circumstances as throwing some
\n\t\t      doubt  upon  the integrity  of  the  settlor’s
\n\t\t      intentions,  but as the entire income is\tonly
\n\t\t      800  rupees  a year,  it is obvious  that\t the
\n\t\t      payment  to these ladies is of the  most\ttri-
\n\t\t      fling kind and certainly\tnot an amount  which
\n\t\t      one could expect in a case of this kind.”
\n\t\t      Following\t this  decision it wag held  by\t the
\n\t\t      Calcutta\t High Court in Chandi v.  Dulal\t (30
\n\t\t      CMN 930) that a provision for remuneration  of
\n\t\t      the  Shebaits with half of the income  of\t the
\n\t\t      Debutter\tproperty (which proved to  be  small
\n\t\t      sum)as well as their residence in the  Thakur-
\n\t\t      bari  were quite compatible with\tan  absolute
\n\t\t      endowment.   You should bear in mind  in\tthis
\n\t\t      connection, that when a property is absolutely
\n\t\t      dedicated to a deity, it is not necessary that
\n\t\t      every  farthing of the income should be  spent
\n\t\t      for   the worship of the idol itself.   It  is
\n\t\t      quite  within the competence of a\t settlor  to
\n\t\t      provide  that  the surplus  income  should  be
\n\t\t      spent for the charitable objects e.g.  feeding
\n\t\t      o]  the  poor.  Sadavart or  entertainment  of
\n\t\t      pilgrims\tand guests is often found to  be  an
\n\t\t      adjunct of a public Debutter.  In the case  of
\n\t\t      Monohar  Mukherji v. Bhupendra Nath  Mukherjee
\n\t\t      (37  CWN 29 FB) there was a provision in\t the
\n\t\t      deed of dedication that the surplus income  of
\n\t\t      the endowment should be spent upon maintenance
\n\t\t      of childless widow
\n\t\t      495<\/span>
\n\t\t\t   of  the  family   and   construction\t  of
\n\t\t      roads    and  excavation of   the\t tanks\t for
\n\t\t      public   use,  and these\tdirections,  it\t was
\n\t\t      held, did not make the dedication incomplete.
\n\t\t      (pp. 129-130)
\n\t\t\t       (Underscoring  supplied with  a\tpur-
\n\t\t      pose)
\n\t\t\tThe  demarcating line between absolute\t and
\n\t\t      partial debutter is drawn by the author thus:
\n\t\t\t“Where\tthe  dedication made by\t settlor  in
\n\t\t      favour  of an idol  covers the entire  benefi-
\n\t\t      cial  interest which he had in  the  property,
\n\t\t      the  Debutter  is\t an  absolute  or   complete
\n\t\t      Debutter.\t Where however, some proprietary  or
\n\t\t      pecuniary\t right or   interest in the property
\n\t\t      is  either undisposed of or is reserved\t for
\n\t\t      the  settlor’s family or relations, a case  of
\n\t\t      partial  dedication  arises.    In  a  partial
\n\t\t      dedication the deity does not become the owner
\n\t\t      of the dedicated property but is in the  posi-
\n\t\t      tion  of\ta charge holder in  respect  of\t the
\n\t\t      same.   A charge\t is credited on the property
\n\t\t      and there is an obligation on the\t  holder  to
\n\t\t      apply  a portion of the income for  the  reli-
\n\t\t      gious  purposes  indicated   by  the  settlor.
\n\t\t      The property does not   become extra-commerci-
\n\t\t      um  like Debutter property, strictly  Speaking
\n\t\t      so  called, but is  alienable subject to\t the
\n\t\t      charge  and descends according to the ordinary
\n\t\t      rules of inheritance.  It can be attached\t and
\n\t\t      sold  in\texecution  of  decree  against\t the
\n\t\t      holder.  Whoever\tgets  the  property  however
\n\t\t      takes  it\t  burdened with the charge or  reli-
\n\t\t      gious  trust.   In Dasaratha   Rami  Reddy  v.
\n\t\t      Subba  Rao (1957 SCR 1122) it was observed  by
\n\t\t      the Supreme Court that the question whether  a
\n\t\t      dedication   was\tcomplete  or  partial\tmust
\n\t\t      depend  on  whether the settlor intended\tthat
\n\t\t      his  title should be  completely\textinguished
\n\t\t      and transferred to  the trust, that in  ascer-
\n\t\t      taining\tthat   intention regard must be\t had
\n\t\t      to the terms of the document   as a whole\t and
\n\t\t      that  the use of the word ‘trust’\t though\t  of
\n\t\t      some  help in determining such  intention\t was
\n\t\t      not decisive   of the matter.\n<\/p><\/blockquote>\n
\t\t\t     It\t sometimes happens that the  settlor
\n\t\t      merely provides for the perfomance of  certain
\n\t\t      religious\t services or charities from  out  of
\n\t\t      the  income of properties specified, and\tthe,
\n\t\t      question\tarises\twhether\t in such  cases\t the
\n\t\t      specified\t  properties  themselves  form\t the
\n\t\t      subject-matter  of  dedication.\t Where\t the
\n\t\t      entire  income from the properties or  a\tsub-
\n\t\t      stantial\tportion\t thereof is directed  to  be
\n\t\t      applied,\tor  is required for  such  purposes,
\n\t\t      then the property itself must  be held to have
\n\t\t      been absolutely dedicated for those  purposes.<\/p><\/blockquote>\n
\t\t      Where, however, after applying the income\t for
\n\t\t      the purposes specified, there still remains  a
\n\t\t      substantial  portion  thereof  undisposed\t of,
\n\t\t      then the dedication must be held to be partial
\n\t\t      and the properties
\n\t\t      496<\/span>
\n\t\t      will continue to be held in private ownership,
\n\t\t      subject to a charge in favour of the charities
\n\t\t      mentioned?’
\n\t\t\t\t\t\t    (p. 134-135)
\n\tMr Sen cited several decisions which are more appropriate to
\n\ta  contest  between shebaits and heirs and do  not  directly
\n\tbear  on  rival considerations decisive of the\tabsolute  or
\n\tpartial\t nature of a debutter and so we do not\tburden\tthis
\n\tjudgment with those many citations but may refer to a few.
\n\t    In\tHar  Narayan(1) the Judicial Committee\twas  dealing
\n\twith  a case where a dispute was between the heirs  and\t the
\n\tshebaits and it was held that
\n\t\t      “although a will provides that the property of
\n\t\t      the  testator ‘shall be considered to  be\t the
\n\t\t      property of a certain idol, the further provi-
\n\t\t      sions such as that the residue after defraying
\n\t\t      the expenses of the temples ‘shall be used  by
\n\t\t      our  legal heirs to meet their own  expenses’,
\n\t\t      and  the\tcircumstances, such as that  in\t the
\n\t\t      ceremonies  to be performed wore fixed by\t the
\n\t\t      will and would absorb only a small  proportion
\n\t\t      01  the  total income, my\t indicate  that\t the
\n\t\t      intention\t was that the heirs should take\t the
\n\t\t      property subject to a charge for the  perform-
\n\t\t      ance of the religious purpose named.”\n<\/p>\n
\tGranting  the creation of a debutter, the telling  tests  to
\n\tdecide\tas between an absolute and partial  debutter  cannot
\n\tnecessarily  be\t gathered from this ruling.   On  the  other
\n\thand,  this very ruling\t emphasized that a substantial\tpart
\n\tof the income was to go to the legal heirs to meet their own
\n\texpenses  and  that circumstances  deflected  the  decision.
\n\tMoreover. Lord Shew of Dunfermline, there observed:\n<\/p>\n
\t\t\t    “The  case\t(jadu Nath  Singh:  44\tI.A.\n<\/p><\/blockquote>\n
\t\t      187)   merely illustrates the inexpediency  of
\n\t\t      laying  down   a\t fixed\t and.  general\trule
\n\t\t      applicable to the construction of\t settlements
\n\t\t      varying  in terms\t and  applying\tto   estates
\n\t\t      varying  in situation.”<\/p><\/blockquote>\n
\t\t      (p. 149)
\n\tThe observations of this Court in Charusila Dasi(2)–a\tcase
\n\tdealing\t with the question of legislative competency on\t the
\n\tconstitutionality  of the Bihar Hindu Religions Trusts\tAct-
\n\tseem  to  suggest  that\t the establishment of a hospital for
\n\tHindu  females and a charitable\t dispensary for patients  of
\n\tany religion or creed were consistent with the creation of a
\n\treligious and charitable trust.\n<\/p>\n
\t    The\t crux  of  the matter, agitated before\tus,  is\t the
\n\tdetermination of the true intention of the testator and this
\n\thas  to gathered from the name used, the recitals  made\t and
\n\tthe  surrounding  circumstances. From a bestowal of  reflec-
\n\ttion on the subject and appraisal in the light
\n\t(1) L.R. 48 I.A. 143.\t    (2) [1959] Supp.2 S.C.R. 601.\n<\/p>\n
\t497<\/span><\/p>\n
\tof  the then conditions, sentiments and motivations  of\t the
\n\tauthor,\t we are inclined to the view that Raja Mullick,\t the
\n\tmaker of  the  will, dedicated as debutter to his Maker\t and
\n\tThakoor\t the  entire estate, saddling the  human  agents  or
\n\tshebaits  with duty to apply the income for godly  and\tnear
\n\tgodly  uses  and for reward of the shebaits  and  for  their
\n\thappily living.\t Of course, he had horses and carriages\t and
\n\tother  items to make life enjoyable.  Naturally, his  behest
\n\tcovered\t the obligation to keep these costly things in\tgood
\n\tcondition  and regular use. The impact on the mind,  if\t one
\n\treads the provisions reclining\tin  a chair and lapsing into
\n\tthe  mood of the maker of the will, is that  he gave all  he
\n\tdid  to\t his Thakoor, as he unmincingly\t  said,\t  and\tthus
\n\tdedicated  to  create  an absolute  debutter.\tThe  various
\n\tdirections are mostly either religious or philanthropic\t but
\n\tnot  so remote as  to  be incongruous with dedication to  an
\n\tidol  or creation of a debutter. The quantum of\t expenditure
\n\ton the various items is not so decisive of the character  of
\n\tthe  debutter  as absolute or partial as the accent  on\t and
\n\tsubjective importance of the purposes, in the setting of the
\n\ttotality  of commands and cherishments.\t His soulful  wishes
\n\twere for the religious and charitable objects and the  other
\n\tdirections  were  secondary in his estimate.   Not  counting
\n\tnumbers nor  computing\teXpenses, marginally relevant though
\n\tthey  are, but feeling the pulse of his passion to do  godly
\n\tgood  and promote public delight, that delights\t the  spirit
\n\tof  his\t testament.  Essentially,  Raja\t  Rajendra   Mullick
\n\tgave away his estate to his Thakoor and created an  absolute
\n\tdebutter.   He obligated the managers of the  debutter\twith
\n\tresponsibility\tto discharge certain secular  but  secondary
\n\tbehests including  benefit  to\tfamily members, their  resi-
\n\tdence and transportation.\n<\/p>\n
\t    How then do we reconcile such a conclusion with the many
\n\tpoints\tforcefully  urged  by Shri B.  Sen  and\t averted  to
\n\tearlier\t ?   We\t think that the\t expressions  ‘shebaits\t and
\n\ttrustees’,  ‘shebaits  or  trustees’, ‘shebaits’ ‘trustees’,
\n\tand  ‘trusts’  were indiscriminately  used,  indifferent  to
\n\tsharp legal semantics and uncertain of the precise import of
\n\tthese  English legal terms in the Indian context.  More,  an
\n\tEnglish\t solicitors familiar legal diction super-imposed  on
\n\tan  unfamiliar\tIndian debutter, rather than an exercise  in
\n\tambiguity  or deliberate dubiety, explains the\todd  expres-
\n\tsions  in the will.  The author merely intended to  dedicate
\n\tto Sree Jagannathji and manage through shebaits.  Of course,
\n\tthe  reference to the Board of Trustees, the  majority\tvote
\n\tand the like, strike a discordant note but the\tpreponderant
\n\tintent is what we have held it is.\n<\/p>\n
\t    The magnitude of the expenditure on the  items,  secular
\n\tand  sacred,  may vaguely affect the conclusion\t but  cannot
\n\tconclusively  decide the issue.\t The religious uses  related
\n\tto  Sree  Jagannathji, the Lord of the Universe,  cannot  be
\n\tnarrowly  restricted  to rituals but must be spread  out  to
\n\tembrace universal good, especially when we read the mind  of
\n\ta  Hindu  highly evolved and committed to a  religion  whose
\n\tsweep is vasudhaiva kudumbakam (All creation is His family).
\n\tThe blurred lines between the spiritual and the secular,  in
\n\tthe  context of this ease, do not militate against our\tcon-
\n\tstruction.\n<\/p>\n
\t    We are not unmindful of the stress Shri B. Sen placed on
\n\tthe passage in B.K. Mukherjea which we may extract:\n<\/p>\n
\t498<\/span><\/p>\n
\t\t\t  “But\tit  happens in some cases  that\t the
\n\t\t      property\tdedicated  is very  large,  and\t the
\n\t\t      religious\t ceremonies  which  are\t   expressly
\n\t\t      prescribed by the founder cannot and  do\t not
\n\t\t      exhaust the entire income.  In such cases some
\n\t\t      portion  of   the beneficial interest  may  be
\n\t\t      construed\t as  undisposed of  and\t cannot\t but
\n\t\t      vest  as secular property in the heirs of\t the
\n\t\t      founder.\tThere are cases again where although
\n\t\t      the  document purports, on the face of it,  to
\n\t\t      be  an  out and out dedication of\t the  entire
\n\t\t      property to the deity, yet a scrutiny   of the
\n\t\t      actual  provisions reveals the fact  that\t the
\n\t\t      donor did not intend to give the entire inter-
\n\t\t      est to the deity, but reserved some portion of
\n\t\t      the property or its profits for the benefit of
\n\t\t      his  family relations.  In all such cases\t the
\n\t\t      Debutter\tis  partial and incomplete  and\t the
\n\t\t      dedicated\t property  does not    vest  in\t the
\n\t\t      deity as a juridical person.  It remains\twith
\n\t\t      the  grantees or secular heirs of the  founder
\n\t\t      subject  to a trust   or charge for the  reli-
\n\t\t      gious uses.  The earliest pronouncement of the
\n\t\t      law  on  the  subject is to be  found  in\t the
\n\t\t      decision of the Judicial Committee in  Sonatun
\n\t\t      Bysack v. Juggutsoondaree (8 M.I.A. 66)  which
\n\t\t      was  followed  and applied in  the  subsequent
\n\t\t      case  of\tAshutosh  v.  Durga  (L.R.  6\tI,A.\n<\/p><\/blockquote>\n
\t\t      182) .”<\/p><\/blockquote>\n
\t    Sonatun Bysack, referred to by the learned author, dealt
\n\twith  a\t case  where a Hindu, by his will,  gave  his  whole
\n\testate to the family, deity; he directed that the properties
\n\tshould\tnever be divided but that the sons and grandsons  in
\n\tsuccession  would enjoy ‘the surplus proceeds only’.   There
\n\twere other kindred directions.\tThe Judicial Committee\theld
\n\tthat the bequest to the idol was not an absolute gift:\n<\/p>\n
\t\t\t    “*A\t reference to the second, third\t and
\n\t\t      fifth  clauses of the will’ so runs the  judg-
\n\t\t      ment  ‘leads  us to the conclusion  that\t‘al-
\n\t\t      though  the  will purports to  begin  with  an
\n\t\t      absolute\tgift  in favour of the idol,  it  is
\n\t\t      plain  that  the\ttestator  contemplated\tthat
\n\t\t      there  was  to be some distribution  of\tthe,
\n\t\t      property\taccording as events might turn\tout;
\n\t\t      and that he did not intend to give the proper-
\n\t\t      ty  absolutely  to  the idol  seems  to  their
\n\t\t      Lordships\t to  be clear  from  the  directions
\n\t\t      which are contained in the third clause,\tthat
\n\t\t      after  the expenses of the idol are paid,\t the
\n\t\t      surplus  shall be accumulated; and still\tmore
\n\t\t      so from the fifth ‘clause by which the  testa-
\n\t\t      tor  has provided for whatever surplus  should
\n\t\t      remain  out of the interest of  the  property,
\n\t\t      the expenses of the idol being first deducted.
\n\t\t      It  is plain that the testator looking at\t the
\n\t\t      expenses of the idol was not contemplating  an
\n\t\t      absolute\tand  entire gift in  favour  of\t the
\n\t\t      ‘idol’.  On a construction of the entire\twill
\n\t\t      it  was held that there was a gift to  the\/our
\n\t\t      sons  of the testator and their  offspring  in
\n\t\t      the male line as a joint family, and the\tfour
\n\t\t      ‘sons  were  entitled to the  surplus  of\t the
\n\t\t      property\tafter providing for the\t performance
\n\t\t      of  the ceremonies and festivals of  the\tidol
\n\t\t      and  the\tprovisions in the will\tfor  mainte-
\n\t\t      nance.”\n<\/p><\/blockquote>\n
\t\t      (p 136—137, Mukherjea)
\n\t\t      499<\/span>
\n\t\t\t  The cardinal point to notice is what Pande
\n\t\t      Har Narayan (48 I.A. 143 emphasized:
\n\t\t\t    “The  question whether the\tidol  itself
\n\t\t      shall be considered beneficiary, subject to  a
\n\t\t      charge  in  favour of the heirs  or  specified
\n\t\t      relatives of the testator for their upkeep, or
\n\t\t      that, on the other hand, these heirs shall  be
\n\t\t      considered  the  true  beneficiaries  of\t the
\n\t\t      property, subject to a charge for the  upkeep,
\n\t\t      worship  and expenses of the idol, is a  ques-
\n\t\t      tion which can only be settled by a conspectus
\n\t\t      of the entire provisions of the will.”
\n\t\t      (p. 137, Mukherjea)
\n\t\t      If,  on  a consideration of  the\ttotality  of
\n\t\t      terms, on sifting the more essential from\t the
\n\t\t      less essential purposes, on sounding the depth
\n\t\t      of  the  donor’s wishes to  find\twhether\t his
\n\t\t      family or his deity were the primary benefici-
\n\t\t      aries and on taking note of the language used,
\n\t\t      if  the  vesting is in the  idol\tan  absolute
\n\t\t      debutter can be spell out.  So considered,  if
\n\t\t      the grant is to the heirs with a charge on the
\n\t\t      income  for  the\tperformance  of\t pujas,\t the
\n\t\t      opposite\tinference is inevitable. Before\t us,
\n\t\t      there is no dispute between the heirs and\t the
\n\t\t      idol.  The point mooted is about the  creation
\n\t\t      of  an English trust, an unconventional  legal
\n\t\t      step where the dedication is to a deity.\tOn a
\n\t\t      full  study of the will as a whole,  we  think
\n\t\t      that  this  benignant  Bengalee’s\t  testament,
\n\t\t      draped though in Victorian verbal\t haberdasho-
\n\t\t      ry,  had,\t on legal auscultation,\t the  Indian
\n\t\t      heart-beats of Hindu religious culture, and so
\n\t\t      scanned, his will intended vasting the proper-
\n\t\t      ties  in\tabsolute debutter.   The  idol\twas,
\n\t\t      therefore,  the legal owner of the  whole\t and
\n\t\t      liable to be assessed as such.\n<\/p><\/blockquote>\n
\t\t\t  The  respondent,  however,  has  a  second
\n\t\t      string to his bow. Assuming an absolute debut-
\n\t\t      ter,  there is still many a slip\tbetween\t the
\n\t\t      lip and the cup, between the income and exigi-
\n\t\t      bility to tax.  For, while, ordinarily, income
\n\t\t      accrues in the hands of the owner of  property
\n\t\t      and  is  taxable as such, it is quite  on\t the
\n\t\t      cards  that in view of the special  provisions
\n\t\t      in  the deed of grant certain portions of\t the
\n\t\t      income  may be tied up for other\tpurposes  or
\n\t\t      persons and may not reach\t the grantee as\t his
\n\t\t      income.\tBy  an over-riding charge,  sums  of
\n\t\t      money  the  balance of income may\t legally  be
\n\t\t      received\tby  the donee as  his  income.\t The
\n\t\t      argument of the respondent is that even if the
\n\t\t      estate  vested  in the  deity,  an  assessable
\n\t\t      entity in our secular system as held in Jogen-
\n\t\t      dra Nath(1) still all the amounts meant to  be
\n\t\t      spent  on the shebaits and the members of\t the
\n\t\t      family, on the upkeep of horses and  carriages
\n\t\t      and repair of buildings etc., were charged  on
\n\t\t      the  income  and\tby,  paramount\t provisions,
\n\t\t      directed\tto these uses.\tThese sums  did\t not
\n\t\t      and could not come into the hands of the deity
\n\t\t      as its income and could not be taxed as  such.
\n\t\t      If  the ‘shebaits and trustees’ collected\t the
\n\t\t      income  by way of rents and interests, to\t the
\n\t\t      extent  of  these\t other\tdisbursements\tthey
\n\t\t      received\tthe amounts merely as collectors  of
\n\t\t      rents  etc; not as receivers of  income.\tSuch
\n\t\t      amounts were free from income-tax in the hands
\n\t\t      of the idol.\n<\/p><\/blockquote>\n
\t(1) 74 I.T.R. 33.\n<\/p>\n
\t500<\/span><\/p>\n
\t    The principle we have set out above has been blessed  by
\n\ta  uniform catena of cases.  The leading ruling on the\tsub-
\n\tject   is   by\tthe  Judicial  Committee  in   Bejoy   Singh
\n\tDudhuria(1).  Lord  Macmillan  there observed as follows:\n<\/p>\n
\t\t\t    “When the Act by s. 3 subjects to charge
\n\t\t      ‘all  income’  of\t an individual\tit  is\twhat
\n\t\t      reaches  the individual an income which it  is
\n\t\t      intended\tto charge.  In the present case\t the
\n\t\t      decree  of  the court by charging\t the  appel-
\n\t\t      lant’s whole resources with a specific payment
\n\t\t      to his stepmother has  to that extent diverted
\n\t\t      his income from him and has directed it to his
\n\t\t      step-mother;  to that extent what he  receives
\n\t\t      for  her is not his income.  It is not a\tcase
\n\t\t      of the application by the appellant of part of
\n\t\t      his  income in a particular way, it is  rather
\n\t\t      the  allocation  of a sum out of\this  revenue
\n\t\t      before it becomes income in his hands.”
\n\t\t      (p. 138-139)
\n\t\t      A case in contrast is P.C. Mullick v.  Commis-
\n\t\t      sioner  of  Income tax(2). There
\n\t\t\t   “The testator died in October, 1931.\t  By
\n\t\t      his  will\t he appointed  the  appellants\t(and
\n\t\t      another)\this executors.\tHe directed them  to
\n\t\t      pay his debts out of the income of his proper-
\n\t\t      ty, and to pay Rs. 10,000\/- out of the  income
\n\t\t      of his property on the occasion of his  ‘Addya
\n\t\t      Shradh’  for expenses in connection  therewith
\n\t\t      to the person entitled  to perform the Shradh.
\n\t\t      He  also directed his executors to pay out  of
\n\t\t      the income of his property the costs of taking
\n\t\t      out probate of his will  After conferring\t out
\n\t\t      of income benefits on the second wife and\t his
\n\t\t      daughter\tand (out of the estate) benefits  on
\n\t\t      the  sons, if any, of his daughter, and  after
\n\t\t      providing\t for  the  payment  out\t of   income
\n\t\t      ‘gradually’   of\tdivers sums to some persons,
\n\t\t      and  certain   annuities\tto  others,  he\t be-
\n\t\t      queathed\tall his remaining property (in\t the
\n\t\t      events  which  happened)\tto a  son  taken  in
\n\t\t      adoption\t after his death by his wife,  viz.,
\n\t\t      one Ajit Kumar Ghosh who is still a minor.”
\n\t\t\t   The\tpayment of the Shradh  expenses\t and
\n\t\t      the costs of probate were payments made out of
\n\t\t      the  income of the estate coming to the  hands
\n\t\t      of the appellants as executors, and in  pursu-
\n\t\t      ance of an obligation imposed by their  testa-
\n\t\t      tor.   It is not a case like the case of\tRaja
\n\t\t      Bejoy Singh Dudhuria v. Commissioner of Income
\n\t\t      Tax, Calcutta in which a portion income was by
\n\t\t      an  overriding title diverted from the  person
\n\t\t      who  would otherwise have received it.  It  is
\n\t\t      simply  a case in which the  executors  having
\n\t\t      received the whole income of the estate  apply
\n\t\t      a portion in a particular way pursuant to\t the
\n\t\t      directions of their testator, in whose   shoes
\n\t\t      they stand.”\n<\/p><\/blockquote>\n
\t(1) (1933) 1 LT.R. 135.\t\t(2) (1938) 6 I.T.R. 206.\n<\/p>\n
\t501<\/span><\/p>\n
\t      In  Commissioner of  Income-tax  v. Sitaldas   Tirath-<\/a>
\n\tdas(1)\tthis Court referred to many reported decisions\tsome
\n\tof which we have just mentioned.  Mr. Justice  Hidayatullah,
\n\tspeaking for the Court, summed up the rule thus (at p. 374):\n<\/p>\n
\t\t\t       “in  our\t opinion, the true  test  is
\n\t\t      whether the  amount sought to he deducted,  in
\n\t\t      truth,  never  reached the  assessee   as\t his
\n\t\t      income.\tObligations, no doubt, there are  in
\n\t\t      every   case,  but  it is the  nature  of\t the
\n\t\t      obligation which is the decisive fact.   There
\n\t\t      is  a  difference between an  amount  which  a
\n\t\t      person  is obliged to apply out of his  income
\n\t\t      and  an  amount  which by the  nature  of\t the
\n\t\t      obligation cannot be said to be a part of\t the
\n\t\t      income  of the assessee. Where by the  obliga-
\n\t\t      tion income is diverted before it reaches\t the
\n\t\t      assessee,\t it  is deductible;  but  where\t the
\n\t\t      income is required to be applied to  discharge
\n\t\t      an obligation after such\tincome\treaches\t the
\n\t\t      assessee, the same consequence in law does not
\n\t\t      follow.  It is the first kind of payment which
\n\t\t      can  truly he executed and not   the   second.
\n\t\t      The   second  payment  is\t merely\t an  obliga-
\n\t\t      tion  to\tpay another a portion of  one’s\t own
\n\t\t      income,  which has been received and is  since
\n\t\t      applied.\t The  first is a case in  which\t the
\n\t\t      income  never reaches the assessee, who,\teven
\n\t\t      if he were to collect it, does so, not as part
\n\t\t      of  his income, but for and on behalf  of\t the
\n\t\t      person to whom it is payable.  in our opinion,
\n\t\t      the present case is one in which the wife\t and
\n\t\t      children\tof the assessee who continued to  be
\n\t\t      members  of the family received a\t portion  of
\n\t\t      the income of the assessee, after the assessee
\n\t\t      had received the income as his own.  The\tcase
\n\t\t      is  one  of application of a  portion  of\t the
\n\t\t      income  to discharge an obligation and  not  a
\n\t\t      case  in\twhich by an  overriding\t charge\t the
\n\t\t      assessee became only a collector of  another’s
\n\t\t      income.”<\/p><\/blockquote>\n
\t       The  High  Court, in a laconic  paragraph,  dismissed
\n\tthis contention but Shri Sen submitted that there was  merit
\n\tin it and had to he accepted.  We agree with the High  Court
\n\tbecause the terms in which the directions are couched do not
\n\tdivert\tthe  income  at the source but\tmerely\tcommand\t the
\n\tshebaits  to  apply the income received\t from  the  debutter
\n\tproperties for specified purposes.  We\tmay quote to  illus-
\n\ttrate:\n<\/p>\n
\t\t\t       “I  direct  that\t the  shebaits\t and
\n\t\t      trustees\tshall  out  of\tthe  Debutter  funds
\n\t\t      maintain\tand  keep  a  sufficient  number  of
\n\t\t      carriages and horses for their use and comfort
\n\t\t      and that of their families and after providing
\n\t\t      for  the\t purposes  aforesaid  out   of\t the
\n\t\t      Debutter\tincome\tI  direct  the\tshebaits and
\n\t\t      Trustees\tto pay to each of the  shebaits\t for
\n\t\t      the time being who shall actually take part in
\n\t\t      the performance of the duties of the  Shebaits
\n\t\t      and  the execution of the Trusts of this\tfund
\n\t\t      as and by way of remuneration for their  serv-
\n\t\t      ices   the  sum  of  Rupees  Five\t hundred   a
\n\t\t      month  ….  ”\n<\/p><\/blockquote>\n
\t\t      (1) 41 I.T.R. 367.\n<\/p><\/blockquote>\n
\t\t      502<\/span><\/p>\n
\t\t\t    “I\tdirect that the widows of  my  three
\n\t\t      deceased\tsons
\n\t\t      Greendro, Sorrendro and Jogendra who assist in
\n\t\t      the work of preparing articles of offerings to
\n\t\t      the Thakoors and\tfor the feeding and  distri-
\n\t\t      bution  to  the  poor and all  the  widows  of
\n\t\t      shebaits hereby appointed and future  shebaits
\n\t\t      who  shall in like manner assist in  the\tsaid
\n\t\t      work  shall receive a remuneration of the\t sum
\n\t\t      of  Rupees fifty each a month from the  income
\n\t\t      of the debutter fund.”\n<\/p><\/blockquote>\n
\tSo  the shebaits first got the income and then apply  it  in
\n\tconformity  with  the  directives given in  the\t will.\t The
\n\trulings relied on by both sides do not shake the position we
\n\thave taken and may not merit discussion.\n<\/p>\n
\tThese  conclusions we have drawn mean that the appeals\thave
\n\tto  be allowed and the reference answered in favour  of\t the
\n\tRevenue\t and  against the assessee.. Accordingly  we  answer
\n\tQuestions  Nos.1  and  2, referred at the  instance  of\t the
\n\tassessee,  against him and the other two questions  referred
\n\tat the request of the Revenue, affirmatively.  While answer-
\n\ting  the above questions we may state that all\tincome\tear-
\n\tmarked\tfor religious and charitable purposes conforming  to
\n\ts. 4(3)(i) read with Explanation to s. 4(3) of the 1922\t Act
\n\tshall not be included in the total income.  It is also clear
\n\tthat  whatever income was agreed to be excluded in terms  of
\n\tthe  concession made by the Revenue in the High\t Court\tshah
\n\tremain excluded.\n<\/p>\n
\tThe fluctuating fortunes of this litigation have been  occa-
\n\tsioned\tby  the\t discordant notes struck  by  the  different
\n\tclauses of the will and the inevitable element of  confusion
\n\tinjected by the religious, charitable and secular wishes  of
\n\tthe Hindu testator being translated into formal, legal terms
\n\tby  an\tEnglish\t solicitor in the latter half  of  the\tlast
\n\tcentury.   He,\ttherefore, direct that the parties  do\tbear
\n\ttheir own costs throughout.\n<\/p>\n
\tP.H.P.\t\t\t\t\t   Appeal allowed.\n\t503<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India C.I.T. West Bengal Iii, Calcutta vs Sri Jagannath Jee (Through … on 17 December, 1976 Equivalent citations: 1977 AIR 1523, 1977 SCR (2) 483 Author: V Krishnaiyer Bench: Krishnaiyer, V.R. PETITIONER: C.I.T. WEST BENGAL III, CALCUTTA Vs. RESPONDENT: SRI JAGANNATH JEE (THROUGH SHEBAITS) DATE OF JUDGMENT17\/12\/1976 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-138374","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nC.I.T. 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