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TMI Blog1976 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... d to provide for his secularly dear cause and near relatives. The construction of this testamentary complex of dispositions and the location of its destination are the principal exercises in these appeals. Raja Rajendra Mullick Bahadur of Calcutta executed his last will and testament on February 21, 1887. While the author of the will was a Bengali Brahmin (?) of the last century, the draftsman of the document was John Hart, an English solicitor. While the author's wishes are usually transmitted into the deed by the draftsman, the diction and accent are flavoured by the draftsman's ink. So it happens that this will represents pious Bengali wishes and dispositions--but draped in an English solicitor's legalese. The court's function in such an ambiguous situation is to steer clear of the confusion imparted by the diction and to reach the real intendment (of the testator). Such an essay in ascertaining the true intent of Raja Rajendra Mullick is fraught with difficulties and our guideline has to be to pick it up from the conspectus of clauses--rather than from particular expressions or isolated features. Only the totality tells the story of the author's mind as he unburdened himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sy. The will opens with the words : ' I hereby dedicate and make debutter my Thakoorbaree' and mentions a mansion which is to be the abode of his God. 'I hereby give, dedicate and make debutter all the jewels... heretofore used, for the worship of the Thakoors ...' is another recital whereby valuables are dedicated. These are for direct use and both the Lord's mansion and the Lord's adornments yield great spiritual bliss but no secular income. Prima facie, the language is unmistakable and a full dedication and, argues Shri Sharma for the revenue, the creation of absolute debutter is an unchallengeable inference. Equally indisputable is the character of the last set of bequests to his sons (save one who has been disinherited) and widows of deceased sons and these are admittedly out of the area of dispute before us. But in between lies the estate (including securities) which yields high income and is disposed of in terms which lend themselves to contrary constructions, marginal obscurity and conceptual mix-up of ideas borrowed from English and Hindu law. ' I do hereby give, dedicate and make debutter in the name and for the worship of my Thakoor Sree Sree Jagannath Jee the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : When the proceedings for the assessment year 1955-56 were pending before the Income-tax Officer, the assessee had filed an application under article 226 of the Constitution of India and had obtained an interim stay against the said proceedings. It appears that on the 9th October, 1961, in terms of the settlement arrived at between the income-tax department and the assessee the interim stay of proceedings was vacated. It was recorded in the said order that part of the income of the assessee which would be proved before the income-tax authorities to have been applied in connection with, (a) feeding of the poor, (b) subscription to other charities enuring for the benefit of the public would be exempted under section 4(3)(i) of the Indian Income-tax Act, 1922." We regard this stand of the revenue as correct in the light of the provisions of section 4(3)(i) and hold, in limine, that whatever the outcome of the contest, the amounts spent on poor feeding and other public charitable purposes are outside the reach of the tax net and are totally exempt. We may, in fairness, state here that counsel for the revenue, Shri Sharma, rightly agreed that the correct legal position, on a sound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year 1957-58 and determined the assessable income at Rs. 1,06,067. The assessee preferred appeals before the Appellate Assistant Commissioner, who passed a consolidated order on November 25, 1963, dismissing the assessee's appeals on all the grounds. On appeal to the Tribunal, a full legal debate followed and, while the revenue won substantially, some items more were held exempt on the holding that the direction contained in the will for the expenditure on the performance of sraddha and other ceremonies for the spiritual benefit of the testator and his ancestors must also be held to be obligations created by the testator which the trustees or the shebaits were obliged to discharge before applying the income for the benefit of the deity. Both parties moved the Tribunal for referring certain questions of law under section 66(1) and the sequel was a reference of two questions at the instance of each. The four questions may be set out as the starting point of the discussion : " (1) Whether, on a proper construction of the will of the late Raja Rajendra Mullick dated 21st February, 1887, the Tribunal was right in rejecting the assessee's claim that the only incomes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the properties did not vest in the assessee-deity. The assessee deity was not the owner of the properties. Therefore, the only income which could be subjected to Income-tax in the hands of the assessee would be the beneficial interest of the said deity under the will, which would be expenses incurred for the seva puja of the deity and for the various religious ceremonies connected with the said deity and the value of the residence of the deity in the temple." The back of the State's contention was thus broken but, even though vanquished, by special leave it sought to agitate in appeal the case that the testator had created an absolute debutter of the whole estate, and not a trust with estate vested in the trustees, that the directions given to the " shebaits and trustees " were mere mandates for application of the income in the hands of the deity and not overriding diversion at the source and so all the receipts, save what had been excluded by the officer, were exigible to tax. Although it may not be strictly pertinent as a circumstance to spell out the intention of the testator, it may be of value as background material to have a sample break-up of the figures of expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aritable trusts. And this unnoticed parliamentary procrastination has compelled the courts to dive into hoary books and vintage case-law to ascertain the current law. We will, therefore, navigate, with this ancient mariner's compass, although we have the advantage of an authoritative work in B. K. Mukherjea on Hindu Law of Religious and Charitable Trusts, relied on by counsel on both sides. Two paramount background considerations of assistance to decipher the intention of the testator, which have appealed to us, may be mentioned first. We are construing the will of a pious Hindu aristocrat whose faith in ritual performances was more than matched by his ecumenical perspective, whose anxiety for spiritual merit for himself and his manes was balanced by a universal love and compassion. Secondly, the sacred sentiment writ large in the will is his total devotion and surrender to the family deity, Sree Jagannathjee. It is easy to see that, in formal terms, the author makes a dedication to Sree Jagannathjee and calls the properties debutter. But, Shri B. Sen, for the respondents, contests the finality of such a verbal test and counters it by reliance on expressions like "shebaits and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us and charitable character. His injunction to feed the poor was Narayana seva, for worship of God through service of man in a land where the divinity in daridra Narayana is conceptually common place and, while it is overtly secular, its motive springs from spiritual sources. It is religion to love the poor. Likewise, his insistence on the aviary and the menagerie and throwing open both to the people to see and delight is not a mundane mania but has deeper religious roots. Hinduism worships all creation : (Peace be unto all bipeds and even so to all quadrupeds). Indeed, the love of sub-human brethren is high religion. For " He prayeth best, who loveth best All things both great and small For the dear God who loveth us. He made and loveth all." (Coleridge, in Ancient Mariner) From the Buddha and Mahavira to St. Francis of Assissi and Gandhiji, compassion for living creatures is a profound religious motivation. The sublime mind of Mullick was obviously in religious sympathy with fellow-beings of the lower order when he showed this tenderness to birds and beasts and shared it with the public. The art gallery too had link with religion in its wider connotation although it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arriages and the like also do not smack of debutter. A specification of the minimum age of 18 to become shebaits and trustees also savours of trusteeship rather than shebaitship. Appointment of a board of trustees on shebaits failing in succession throws clear light on the creation of a trust in the English sense rather than a debutter in the Hindu sense. Again, shebaitship is property and if what is created is only shebaitship, not trusteeship, how can the testator exclude females, insist on 18 years of age and prescribe a course of succession not quite consistent with Hindu law ? Does this not also point towards trusteeship and away from debutter ? In any case, a fair conclusion, according to Sri Sen, would be to regard the appointees as shebaits for purposes of puja and management of the shrine and as trustees for the other substantial purposes, which means that there is a partial debutter and the vesting of the estate in the trustees. There is other evidence to be gleaned from the tenor of the will to which our attention has been drawn by Sri Sen with a view to emphasize that public charities of a secular character, construction of buildings for residence, for feeding the poo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remunerated with half the income of the property. If the income of the property had been large, a question might have been raised, in the circumstances, as throwing some doubt upon the integrity of the settlor's intention, but, as the entire income is only 800 rupees a year, it is obvious that the payment to these ladies is of the most trifling kind and certainly not an amount which one would expect in a case of this kind.' Following this decision it was held by the Calcutta High Court in Chandi Charan Das v. Dulal Paik [1926] 30 CWN 930 ; AIR 1926 Cal 1083 that a provision for remuneration of the shebaits with half of the income of the debutter property (which proved to be a small sum) as well as for their residence in the thakurbari were quite compatible with an absolute endowment. You should bear in mind in this connection, that when a property is absolutely dedicated to a deity, it is not necessary that every farthing of the income should be spent for the worship of the idol itself. It is quite within the competence of a settlor to provide that the surplus income should be spent for the charitable objects, e.g., feeding of the poor. Sadavart or entertainment of pilgrims and g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject-matter of dedication. Where the entire income from the properties or a substantial portion thereof is directed to be applied, or is required for such purposes, then the property itself must be held to have been absolutely dedicated for those purposes. Where, however, after applying the income for the purposes specified, there still remains a substantial portion thereof undisposed of, then the dedication must be held to be partial and the properties will continue to be held in private ownership, subject to a charge in favour of the charities mentioned.". Mr. Sen cited several decisions which are more appropriate to a contest between shebaits and heirs and do not directly bear on rival considerations decisive of the absolute or partial nature of a debutter and so we do not burden this judgment with those many citations but may refer to a few. In Har Narayan v. Surja Kunwari [1921] LR 48 IA 143 ; AIR 1921 PC 20, the Judicial Committee was dealing with the case where a dispute was between the heirs and the shebaits and it was held that : "........ although a will provides that the property of the testator ' shall be considered to be the property of ' a certain idol, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impact on the mind, if one reads the provisions reclining in a chair and lapsing into the mood of the maker of the will, is that he gave all he had to his Thakoor, as he unminicingly said, and thus dedicated to create an absolute debutter. The various directions are mostly either religious or philanthropic but not so remote as to be incongruous with dedication to an idol or creation of a debutter. The quantum of expenditure on the various items is not so decisive of the character of the debutter as absolute or partial as the accent on and subjective importance of the purposes, in the setting of the totality of commands and cherishments. His soulful wishes were for the religious and charitable objects and the other directions were secondary in his estimate. Not counting numbers nor computing expenses, marginally relevant though they are, but feeling the pulse of his passion to do godly good and promote public delight, that belights the spirit of his testament. Essentially, Raja Rajendra Mullick gave away his estate to his Thakoor and created an absolute debutter. He obligated the managers of the debutter with responsibility to discharge certain secular but secondary behests includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the dedicated property does not vest in the deity as a juridical person. It remains with the grantees or secular heirs of the founder subject to a trust or charge for the religious uses. The earliest pronouncement of the law on the subject is to be found in the decision of the Judicial Committee in Sonatun Bysack v. Smt. Juggutsoondree Dossee [1859] 8 MIA 66 (PC), which was followed and applied in the subsequent case of Ashutosh Dull v. Doorga Churn Chatterjee [1879] LR 6 IA 182 ; ILR 5 Cal 438 (PC)." Sonatun Bysack [1859] 8 MIA 66, 85 (PC), referred to by the learned author, dealt with a case where a Hindu, by his will, gave his whole estate to the family deity he directed that the properties should never be divided but that the sons and grandsons in succession would enjoy " the surplus proceeds only ". There were other kindred directions. The Judicial Committee held that the bequest to the idol was not an absolute gift : " ' A reference to the second, third and fifth clauses of the will ' (so runs the judgment) ' leads us to the conclusion that although the will purports to begin with an absolute gift in favour of the idol, it is plain that the testator contemplated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orian verbal haberdashery, had, on legal auscultation, the Indian heartbeats of Hindu religious culture, and so scanned, his will intended vesting the properties in absolute debutter. The idol was, therefore, the legal owner of the whole and liable to be assessed as such. The respondent, however, has a second string to his bow. Assuming an absolute debutter, there is still many a slip between the lip and the cup, between the income and exigibility to tax. For, while, ordinarily, income accrues in the hands of the owner of property and is taxable as such, it is quite on the cards that in view of the special provisions in the deed of grant certain portions of the income may be tied up for other purposes or persons and may not reach the grantee as his income. By an overriding charge, sums of money may be diverted at the very source to other destinations and only the balance of income may legally be received by the donee as his income. The argument of the respondent is that even if the estate vested in the deity, an assessable entity in our secular system as held in Jogendra Nath Naskar v. Commissioner of Income-tax [1969] 74 ITR 33 (SC) still all the amounts meant to be spent on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vents which happened) to a son taken in adoption after his death by his wife, viz., one Ajit Kumar Ghosh, who is still a minor...... The payment of the Shradh expenses and the costs of probate were payments made out of the income of the estate coming to the hands of the appellants as executors, and in pursuance of an obligation imposed by their testator. It is not a case like the case of Raja Bejoy Singh Dudhuria v. Commissioner of Income-tax [1933] 1 ITR 135 (PC) in which a portion of income was by an overriding title diverted from the person who would otherwise have received it. It is simply a case in which the executors having received the whole income of the estate apply a portion in a particular way pursuant to the directions of their testator, in whose shoes they stand." In Commissioner of Income-tax v. Sitaldas Tirathdas [1961] 41 ITR 367, 374, 375 (SC), this court referred to many reported decisions some of which we have just mentioned. Mr. Justice Hidayatullah, speaking for the court, summed up the rule thus : " In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased sons, Greendro, Soorendro and Jogendra, who assist in the work of preparing articles of offerings to the Thakoors and for the feeding and distribution to the poor and all the widows of shebaits hereby appointed and future shebaits who shall in like manner assist in the said work shall be fed and clothed and maintained and shall receive a remuneration of the sum of rupees fifty each a month from the income of the debutter fund...... " So the shebaits first get the income and then apply it in conformity with the directives given in the will. The rulings relied on by both sides do not shake the position we have taken and may not merit discussion. These conclusions we have drawn mean that the appeals have to be allowed and the reference answered in favour of the revenue and against the assessee. Accordingly, we answer questions Nos. 1 and 2, referred at the instance of the assessee, against him and the other two questions referred at the request of the revenue, affirmatively. While answering the above questions we may state that all income earmarked for religious and charitable purposes conforming to section 4(3)(i) read with the Explanation to section 4(3) of the 1922 Act sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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