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TMI Blog1966 (1) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... e as follows : One Smt. Chitra Dassi had five sons. She was the owner of certain lands situated at Sinduriaputty Hoozoor Bagan in the City of Calcutta. By an ekrarnama dated 25th May, 1820 (1st Baisakh, 1213 B. S.) the said Smt. Chitra Dassi made a gift of a piece of land of the area of three bighas and ten cottahs (now numbered as 79 and 80, Chitpore Road) for religious purposes, and she enjoined upon her five sons to build, at their own cost, two houses to be styled Suddarbatty, "for Jatra Mahutshab of Sree Sree Ishwar and Sree Ishwari Thakur Batty for the constant Sheva." The deed stated that Sree Sree Ishwar Jew would for ever remain in the Suddarbatty and Thakurbatty. The relevant recital in the deed is as follows : " I make a gift with stipulation of the whole of my purchased lands of Sinduriaputty Hoozoori Bagan in the city of Calcutta. It is my wish to display the image of Sree Sree Ishwar for that purpose I have given (dedicated) as debutter the first parcel of the above-mentioned lands (extending) from the eastern edge of the (East India) Company's Road and amounting to 3-10-0 three bighas and ten cottahs more or less upon that land there shall be built those two houses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd testament whereby she appointed her four sons, Cossinath, Lokenath, Hurronath and Taranath as the executors. In the will she referred to the fact of having already made the Suddarbatty and the land on which it stood, debutter. She made further debutter in respect of the Bhaghut Shaba and Lalloo Mullick property and directed the executors to perform the daily service of Sri Radhagobind Jew from the rents and profits of the property. She also gave Rs. 10,000 for the purpose of the construction of Suddarbatty. The following passage occurred in the said will : " The Suddarbatty in the place Sindooriaputty in land together with the building heretofore I had made debutter now once appertaining to Bhaghut Shaba and Lalloo Mullick together with the buildings the land and house and Shib Shae Bhucketwallah land and house and Dwims Garden Land appurtenances and the land Soortee Bagan these four parcels for the love of my established Sree Sree Radhagobind Jew I hereby make debutter out of these four parcels of land from the first out of the proceeds of three of the parcels of the land you will perform the daily casual services to my established Sree Ishwar Radhagobind Jew." On the 29th Oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... palas. The official receiver of this court was appointed receiver. From time to time directions were given to the official receiver. On 21st July, 1884, the final decree was passed. On 5th September, 1929, a scheme of administration was framed by C. C. Ghosh J. On 9th September, 1929, Panckridge J. discharged the official receiver and appointed the Official Trustee of Bengal to be the trustee of the said debutter estate on terms mentioned in the said order. The official trustee was not to be involved in the performance, supervision or control of any religious rites, ceremonies, duties, etc., but he was to make certain payments to the shebaits or any other persons ordered by the court. He was not responsible for seeing as to the application of funds so made over. On the 11th August, 1943, an order was made by Ameer Ali J. By this order the expense of daily beggar-feeding at the Thakurbatty was increased from Rs. 137 per month to Rs. 205-8-0 per month. The order shows that 100 poor persons were to be given free-feeding daily. It is not very clear from the order whether this was to be done out of the fund above-mentioned or additionally. It is generally agreed that some poor persons a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal not only to make a supplementary statement of the case but also to give their own answers to the questions which they have done. With great respect, I do not think that the court can call upon the Tribunal to give its own answers to the very questions which the court is called upon to answer, although they can be called upon to give all the material facts bearing thereon. The refrained questions are as follows : Question 1 : " Whether, upon a proper construction of the relevant documents executed by Smt. Chitra Dassi and the relevant scheme sanctioned and/or passed by the High Court, there was a trust in favour of the deity or whether there was dedication of the properties to the deity ?" Question 2: " Alternatively, if the dedication to the Thakur constitute trust, is it a religious trust which did not enure to the benefit of the public ?" Question 3 " Is the Thakur Radha Gobinda Jew liable to assessment under the Indian Income-tax Act ?" We shall now proceed to answer these questions. With regard to question No. 1, both parties have agreed before us that the word "trust" mentioned therein means a trust in the technical sense, that is to say, in the form of an Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the High Court, there was a dedication of the properties to the deity, but that there was no trust in the technical sense, that is to say, as understood in the English law. We must make it clear, however, that the answer is not to be taken to mean that, by such a dedication, no trust at all was created, because, in our opinion, a dedication of the properties to the deity is also a trust, but in the larger sense. We have not also been asked the question which was asked in the previous reference answered by a Bench presided over by Chakravartti C. J., namely, whether the property can be said to be held under a private religious trust within the meaning of that phrase as used in the explanatory paragraph appended to section 4(3) of the said Act. The answer to such a question is not free from difficulty. It appears from the judgment of the learned Chief Justice that Dr. Radhabinod Pal, who appeared for the assessee, conceded that the question could not be answered in the negative and that he was unable to contend that, on a proper construction of the relevant documents, the trust could be held to be not a private religious trust. The question was therefore answered in the affirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts origin was a highly artificial thing which had its foundation upon a dual system of law and a dual system of property which came into existence in England under peculiar political and historical conditions. You could not possibly expect to find a trust in this form in the Hindu system. But the existence of dual ownership is not an essential ingredient in the conception of trust and if you take 'trust' in its broad and general sense as signifying a fiduciary relation under which a person in possession of or having control over any property is bound to use that property for the benefit of certain persons or specified objects. Obviously there are trusts in Hindu law. A shebait in charge of a temple, or a mohant having control over a religious institution, would be a trustee in this general sense. " The learned author has subsequently elaborated this point as follows: " In the conception of debutter, therefore, two essential ideas are involved ; in the first place, the property which is dedicated to the deity vests in an ideal sense in the deity itself as a juristic person. In the second place, the ideal personality of the idol is in the nature of things linked up with the natura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther it was a religious trust must therefore be answered in the affirmative. I now proceed to answer the latter part of the question, namely, as to whether the trust enures for the benefit of the public. Although the question as to whether a trust is a public or a private trust is not identical with the question as to whether a private trust enures for the benefit of the public, the tests are bound to be similar. A public trust is wholly for the benefit of the public. A private trust may be partly so. Where, in a private trust, the entire benefit is given to the public the distinction between a private trust and a public trust must be slender indeed. However, the indications which decide as to whether a trust enures for the benefit of the public, involve consideration of similar factors which determine whether a trust is public or private. I shall, therefore, deal with the authorities that have been cited. I must mention here that the authorities are all agreed upon one point, namely, that the matter depends on the facts of each case. Certain tests have been laid down, but by and far, each case must be decided upon its own facts. The first case to be considered is a decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt ? Though such a notion had a vogue at one time, and there is an echo of it in these proceedings, it is now established beyond all controversy that this is not the true position. It has been repeatedly held that it is only in an ideal sense that the idol is the owner of the endowed properties. Vide Prosunno Kumari Debya v. Golab Chand Baboo, Jagadindra Nath Roy v. Rani Hemanta Kumari Debi and Pyamatha Nath Mullick v. Pradyumna Kumar Mullick. It cannot itself make use of them ; it cannot enjoy them or dispose of them, or even protect them. In short, the idol can have no beneficial interest in the endowment .... they can be described as their owners only in a figurative sense, and the true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship ..... When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and installed it. The tradition is that Timmaya, the son of Gailapati Maharaj, again had a dream that the deity should be removed to Nasik and he did so. After the death of Timmaya, his eldest son, Bapaji, obtained a plot of land as gift from the Peshwa near the bank of the Godavari river at Nasik and built a vast temple with a large Sabha Mandap which could accommodate about 600 persons at the time of the darshan and worship of the deity. The deity received numerous gifts from rulers like the Peshwa, Holkar and Scindia, as well as others. Ultimately, litigation started and the question to be decided was as to whether the temple was a public or a private endowment. Hidayatullah J. considered the various facts which indicated the public nature of the endowment. He pointed out that the appellant himself had published a history of the Sangasthan, which described how from time to time the Peshwas and various sardars granted villages to the deity. In fact, at the relevant time, the properties of the deity consisted of eleven villages and cash moneys and other urban properties. The jagirs and inams were recorded as Devasthan by the Inam Commissioner. It was found that for all these two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he public to give pronamis and perquisites which would then form part of the trust estate and this showed that the right of worship was not confined to the family of the settlor, but it was given to other members of the Hindu public who could offer pronamis and perquisites to the deities. The ceremonies and festivals enjoined by the trust deed appeared to be of public character. These were to be performed on such a large scale that the intention was clear that the public were given a right to take part in them. The provisions as regards hospitals and charitable dispensaries were, prima facie, for public benefit. Lastly, the fact remained that the idol was installed, not within the residential precincts of the settlor but in a separate building. From these facts it was held that the endowment was a public one. Before we close this aspect of the case it is necessary to cite another case, Prasaddas Pal v. Jagannath Pal. In that case, one Nilmani Pal executed a deed of endowment in July, 1911, by which he dedicated certain Calcutta properties to the idol Shree Shree Annapoorna and the whole of the income was to be devoted to deva seva and the feeding of the poor and other charitable ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. The second point put forward is that the members of the public were not excluded from the worship of the deity. In support of this proposition Mr. Mitter refers to a remand report filed by the Appellate Assistant Commissioner dated 18th September, 1957. It appears that the Appellate Tribunal had asked for a report and a copy of the report of the Appellate Assistant Commissioner is at pages 252 to 254 of the main paper-book. The following extract from it will be of importance : " 4. The administration of the affairs of the temple is conducted by sebaits who are appointed by turns from amongst the members of the family. Shri Nand Kishore Mallick who attended before me and his brother Shri C. S. Mallick, had their turn of sebaitship during the period from 10th December, 1956, to 20th February, 1957, i.e., 73 days of which period the accounts were also produced before me. The sebaits obtain funds from the official trustees which are to be spent for the purpose and in the manner sanctioned by the High Court. During the afore-mentioned 73 days period the Mallicks received Rs. 30 per diem for puja (Rs. 900 p.m.), Rs. 137 per month for feeding of beggars, additional sums for special f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that it enures wholly for the benefit of the public ? In my opinion, it does not. This matter has been lucidly explained by Sir George Rankin in a Privy Council decision, Babu Bhagwan Din v. Gir Har Saroop. In that case the facts were as follows : One Daryao Gir installed the deity Bhironji and a grant was made to him of land by the then reigning Nawab of Oudh. The founder and his family administered the temple and endowed properties. They were known as Goshains or Grihastha Fakirs. There was no doubt that the public had uninterrupted access to the temple premises. The question arose as to whether it was a public endowment or a private endowment for the benefit of the family. Sir George Rankin said as follows : " It will be convenient to indicate the main features of the evidence before attempting to draw any inferences from the documents. The appellants rely strongly on the fact that for many years Hindu members of the public have resorted to the temple for worship and darshan without let or hindrance. About 46 years before the trial, a mela or fair had been started by some musicians and dancers and had become an annual function towards which public subscriptions were collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estivals the members of the public were not turned away. Even in private endowments this may very well happen and, I think, that Sir George Rankin rightly pointed out that it is not in consonance with Hindu sentiments or practice that worshippers should be turned away from temples whether they were private or public. In the instant case, the public never attended the daily puja. As regards the size of the Suddarbatty, in my opinion, it does not at all indicate the existence of a public endowment. The temple of Sri Venkatesh Balaji mentioned in the Supreme Court cited above was a "vast" temple which attracted numerous donations by princes and others. The circumstances therein are not comparable to the facts of the instant case. The only public user or user for the benefit of the public that I can see is the provision in the order of Ameer Ali J., dated 11th August, 1943, in which he directed the feeding of beggars or indigent people. The report mentioned above will show that only Rs. 137 p. m. is spent for the feeding of beggars. Rupees 4,000 to Rs. 15,000 is spent per annum for the temple and the amount spent on the feeding of beggars is, therefore, slender indeed. As regards "Mahu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividually. The only heading under which a Hindu deity can be assessed is the word "individual". The question is whether a Hindu deity can be called an "individual". Mr. Mitter has argued and this argument finds support from the authorities as well as the text-book writers that under the Hindu law, when property is dedicated to a deity, a Hindu deity not being a sentient being, cannot hold and enjoy property like a human being. In this sense, the deity cannot be a beneficiary. On the other hand, it has been repeatedly pointed out that it is a mistake to equate a Hindu deity with a sentient being. According to Hindu notions, although a deity cannot hold property or enjoy the same like a human being, it does so in an ideal sense. In the ideal sense, it not only can hold property and enjoy the income, but its seva and puja consist of operations as if it was a human being. It is fed and made to sleep and is washed and clothed as if it was a sentient being. The benefit, in fact, enures to the shebait and the worshippers but that is a fiction that has been introduced in the Hindu law and must be kept in mind. Mr. Mitter has taken us to the philosophical aspect of Hindu endowments. He argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an infant heir. It is unnecessary to quote the authorities ; for this doctrine, thus simply stated, is firmly established. " In the same case, the Judicial Committee quoted the observations of Sir Ashutosh Mukherji in Rambrahma Chatterjee v. Kedar Nath Banerjee, by saying : " 'It is sufficient to state that the deity is, in short, conceived as a living being and is treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy: the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest'. " This aspect of it has been well brought out in a Bench decision of this court-Tarit Bhusan Roy v. Sri Sri Iswar Sridhar Salagram Shila Thakur. It has been stated there as follows : " The efficient subject of the rights ascribed to an idol must ultimately be some human beings. It must be they who enjoy such rights and, if law protects such rights, it is because of the existence of such ultimate human concern. The idol, as the juridical person, only affords the technica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the simple and effective expedient of taxing the profits where they are found. " It is the receipt of income which determines chargeability and not the person who receives it. In other words, it is the income which is chargeable to income-tax in whosoever hands it is found. This principle has been approved in Aggarwal Chamber of Commerce Ltd. v. Ganpat Rai Hira Lal by the Supreme Court. Reference may also be made to the Supreme Court decision---Executors of the Estate of J. K. Dubash v. Commissioner of Income-tax. Patanjali Sastri J. (as he then was) said as follows: " The Income-tax Act directs its attention primarily to the person who receives the income, profits or gains rather than to the ownership or enjoyment thereof. The assessee is defined in section 2(2) as the person by whom the income-tax is payable and by section 10 the tax is payable by an assessee who carries on the business, profession or vocation. The statute thus fastens on the person who carries on the business, etc., the liability to pay the tax on the profits earned by him regardless of their destination or enjoyment. It is also worthy of note that in several instances persons who have no proprietary or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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