TMI Blog1946 (1) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... bas in Deoghar in which the settlor resided, (c)five immovable properties in Calcutta. The trusts mentioned in the deed were:- 1.To permit the settlor to use and occupy Charunibas free of rent during to her lifetime and effect repairs thereto as reasonably desired by her, 2.Out of the income, in the next place, to complete the construction of the twin temple or Jugal Mandir and the Nat Mandir at Karanibad according to plans and specifications approved by the settlor. 3.After completion of the temple to instal therein the deity Sree Gopal , which the settlor had established in her house, and a marble image of Sree Iswar Balanand Brahmachari Maharaj, the settlor's guru and religious preceptor in the manner enjoined by the Hindu Sastras and to celebrate within the temple land the founding or the consecration ceremony of the temple and the installation ceremony of the deity and the image. 4.To pay for the daily sheba and periodic festivals of the deity, or such other deities as might be installed, and of the image, in the manner prescribed in schedule E to the deed. 5.To form a reserve fund out of the income and from donations. 6.To establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the daily bhoga of the deities and image ; daily food for 60 persons at noon and for 36 persons at night; the annual festivals to be celebrated, including free distribution of cold drinking water, molasses and grain, at a festival during the month of Baisakh, and free distribution of bhog to all present at a festival in the month of Kartick. It is conceded by the Commissioner of Income-tax that the hospital and dispensary, when it comes into existence and operation, will be a public charitable trust and the part of the trust income devoted to it will be exempt from assessment to income-tax. The rules in schedule A provide that during the settlor's lifetime, the hospital and dispensary should be located in a rented house in Deoghar and after her . death in Charunibas, the house where she has a right of residence. The year of assessment is 1939-40 in respect of the accounting year 1938-39. The trustees were assessed upon the whole income of the trust in the sum of ₹ 49,691 for an amount of ₹ 9,061-9-0 tax. The Appellate Assistant Commissioner dismissed an appeal by the assessees against the assessment and, upon reference being made under Section 33 of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd since it is conceded that that part of the income which will be devoted to those institutions, when utilised for those purposes, will fall within the exempting clause, the meaning and effect of the trust deed needs to be considered solely with respect to the other trust created by it. The burden is upon the asseseees to establish that the income from the trust is exempt from taxation: vide the observations of Agarwala, J., at p. 219 in Commissioner of Income-tax, Bihar and Onssa v. Maharaja Viswesioar Singh [1985] 8 ITR 210. Mr. N.C. Chatterjee, for the trustees, contended that the public nature of the entire trust is ascertained from the trust deed, in the following respects:- 1.There is no dedication to a family deity. 2.No portion of the usufruct is reserved to the settlor or to her heirs or members of her family. 3.The family is divested of the shebaitship. 4.The majority of the trustees are not members of the settlor's family. 5.The management of the temple is in the hands of a public committee which includes 6 Hindu residents of Deoghar. 6.Daily distribution of food to 95 persons and of periodic refreshment at festivals is to be carried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d husband, if one is available, and other persons from prescribed sects. But, the deed further provides, the settlor reserves to herself the powder in her absolute discretion to remove any one or more trustees for misconduct or other reason specified therein, and to fill all vacancies in the board. This, naturally, will apply only during her lifetime. The deed also provides, in the rules contained in schedule A, that the settlor shall be the first managing trustee until her death or retirement. Elsewhere the deed provides that during her lifetime the decision of the settlor at a meeting of the board of trustees shall prevail. The temple committee is comprised of the Jugal Mandir shebait, for the time being, (the holder of an office unconnected with the temple) and 6 pious Hindu residents of Deoghar appointed by the trustees, the committee being responsible for the distribution of prosad and arrangement and management of periodical worship and ceremonies; but the committee's functions are subject to the supreme control of the trustees. Since the settlor's decision as a trustee prevails at a board meeting and since the administration by the committee is subject to the trustee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the trust. This provision does not, in our view, bear the meaning for which he contained. No other term in the deed has been pointed out as containing a requirement, express or implied, that the public must be given information regarding the trust property. 10, 11. The provisions in the deed relating to consecration and their effect do not appear to have been raised before the Income-tax Officer, the Appellate Assistant Commissioner and the Commissioner of Income-tax and no evidence referable to the ceremony of consecration was before them. Nevertheless, considerable importance was sought to be laid upon these matters. The deed requires the trustees to instal the deity and the image in the temple in the manner enjoined by the Hindu Sastras and to celebrate within the temple land the founding or the consecration ceremony of the temple and the festival in connection therewith. The deed does not direct consecration of the land which, Mr. Chatterjee contended, is the meaning and effect of the above provision, but consecration of the temple, which ceremony is to be celebrated within the land. He argued that the ceremony to consecrate the land is known as prosad utsarga. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p is to be by the public; and therefore, he contended, the mere inclusion in the deed of a provision for consecration differentiated the position from that which would exist if a mere private religious trust had been intended. For then, as when a Thakur is installed in a private house of a Hindu family, no consecration would, he suggested, be required. As to this, while it may well be the case, that for the installation of a Thakur in a private family house no ceremony of consecration is needed, yet neither evidence nor authority has been produced before us to show, that if a private deity is moved to a new temple specially built for his installation, a consecration ceremony of any nature cannot appropriately be resorted to. Moreover this aspect of the matter has been referred to in Saraswati's Hindu Law of Endowments (Tagore Law Lectures) at p. 77 in the following passage dealing with consecration :- The consecration or Pratishthaoi the temple, after its construction is completed, forms the subject of separate provisions, although some of them merge on the one hand in the vastuyaga and others in the ceremonies attending the consecration of the deity to whom the temple is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Staples, A.J.C., pointed out at p. 50 that, in that case, there was ample evidence to show the temple in question had been all along used for public worship (that would be sufficient to establish it was a public temple); but the learned Additional Judicial Commissioner expressed the opinion, at p. 49, that, whilst a deed by which property was dedicated in favour of a deity did not expressly create a public trust, it certainly did not expressly declare the dedication was meant to be a family or private one, there was nothing in the deed repugnant to the idea that the trust should be to the benefit of the public and in such a case the deed should be interpreted in favour of a public trust; in the light of the evidence given the above opinion is obiter; if it were correct then every temple would be a public one if the trust deed did not expressly provide to the contrary even when the public were in no way concerned with it, had never worshipped in it and may have been denied access to it. With respect I am unable to subscribe to the correctness of the opinion of the learned Additional Judicial Commissioner. Assuming however, that it is correct, in the present case there is, in my view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship and celebration of festivals of her private deity, which she had established, and of the image of her religious preceptor. She also perpetuated the memory of her deceased son by erecting to him the Nat Mandir adjacent to the temple. The public has no interest in those objects. There is no grant in favour of the public to receive the food and other refreshment which is to be distributed or to have a right to worship in the temple or even to have access to it. The trust, which the settlor created with respect to the temple, its erection and all matters and things appertaining to it, is a private trust and is not one for public charitable purposes. At the commencement of his opening on behalf of the trustees Mr. Chatterjee stated this reference originally came before the Chief Justice and Panckridge, J., and after it had been argued for some time, the learned Chief Justice suggested that the matters arising out of it should be discussed between the assessees and the Income-tax authorities; and an adjournment was granted for that purpose. Mr. Chatterjee produced a deed which, he said, had now been executed by the settlor placing the question beyond doubt and making it clear the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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