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TMI Blog1971 (5) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... ust, and (b) Jagadhatri Sampad Trust. The question referred to this court is as follows : " Whether, on the facts and in the circumstances of the case, the properties comprised in the trusts known, respectively, as 'Sarada Sampad Trust' created by the deed dated the 19th September, 1936, and 'Jagadhatri Sampad Trust' created by the deed dated the 27th June, 1939, were correctly included in the estate of the deceased as property passing on his death under section 5 of the Act ? " At the hearing before us counsel for the applicant did not make any submissions with respect to the " Sarada Sampad Trust ". He said that he was accepting the view of the Member, Board of Revenue, on the " Sarada Sampad Trust " and did not invite us to answer any question relating thereto. In this reference, therefore, we shall confine ourselves only to the " Jagadhatri Sampad Trust ". By a deed dated 27th June, 1939, the deceased's father, the late Umesh Chandra Barerji (who died in April, 1941), settled certain properties in trust directing the trustees to apply the income thereof in the manner indicated in the deed. The English translation of the preamble to this instrument reads thus : " By the grac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sents), etc., to Guru Purohits. And the said one-half income shall be spent entirely for religious work ; at no point of time there shall be any departure from the same. (iii) The trustee shall be competent to spend the remaining net one-half (of the income), in accordance with the procedure laid down by themselves ; first, the trustees, if they so desire, shall get at the rate of Rs. 25 per month as their remuneration for the management of this trust estate. They shall be competent to defray the joint family expenses, to engage servants, maid servants (a) Brahmin cook, (b) Durwan and a Sarkar and to maintain a motor-car or a horse-and-carriage for the estate, out of the said amount, according as need be. They shall pay the telephone charges for the estate as also the electric charges for the family house out of this amount. " The remaining directions were for meeting the expenses on account of the marriages of the daughters, provision for maintenance of any daughters-in-law in the settlor's line who may become child-widows, etc. The Deputy Controller held that the provisions of the trust were such as to keep the properties tied up in perpetuity without any power of alienation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trust, learned counsel has urged, was only for the perpetual maintenance of heirs and descendants of the settlor and was, therefore, void subject to the charge in favour of the deities and idols. Reliance was placed on a number of decisions. In Sonatun Bysack v. Sreemutty Jaggulsoondree Dosee, a Hindu, by will, gave all his movable and immovable property to his family idol ; and after stating that he had four sons, he directed that his property should never be divided by them, their sons, or gransons in succession, but that they should enjoy " the surplus proceeds only " ; and the will, after appointing one fo the sons as manager to the estate, to attend to the festivals and ceremonies of the idol and to maintain the family, further directed that, whatever might be the surplus after deducting the whole of the expenditure, the same should be added to the corpus, and, in the event of a disagreement between the sons and the family, the testator directed that after the expenses attending the estate, the, idol and maintenance of the members of the family, whatever net produce and surplus there might be, should be divided annually in certain proportions among the members of the family. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Dutt v. Doorga Churn Chatterjee. Here a Hindu testatrix, after creating a charge or the property, the subject of her will, for the expenses of various religious acts and ceremonies, directed that " after all these acts have been observed from the proceeds of the said property, if there be a surplus, then the family will be supported therefrom " ; and further that " this property of mine will not be liable for the debts of any person. None will be able to transfer it. None will have the rights of gift and sale " The Privy Council held that the former direction amounted to a bequest of the surplus to the members of the joint family for their own use and benefit, the share of each member being capable of being ascertained and of being attached in execution by his creditors ; and that the latter directions, being inconsistent with the interest given, were wholly beyond the testatrix's power and must be rejected as having no operation. We do not see how this case is of any relevance in determining the terms of the deed by which the " Jagadhatri Sampad Trust " was created. There are no terms here reserving any surplus for enjoyment of members of the settlor's family. On the other hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property subject to a charge for the performance of the religious purposes named. The Privy Council was of the view that in determining whether a will of a Hindu gave the testator's estate to an idol subject to a charge in favour of the testator or made a gift to the idol a charge upon the estate there was no fixed rule depending upon the use of particular terms in the will; the question depended upon the construction of the will as a whole. The Judicial Committee decided that by this deed the provision for the worship, expenses and charges of the idol formed a burden upon the estate but the property descended according to the destination in the will and subject to that burden. It is to be noted that one of the clauses of the document specially relied on by their Lordships of the judicial Committee was clause 6 which said : " whatever may be saved after defraying the expenses of the temple, and the pay of the servants, shall be used by our legal heirs to meet their own expenses." We do not find any such clause in the present document which we are called upon to construe. Another case cited by counsel for the Controller was the case of Srikissen Khanna v. Tarachand Ghanashyam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uoted the above passage is that in our case also the total annual gross income of the properties in 1955 was a sum of Rs. 5,883 only, that is to say, a little over Rs. 250 per month and the heirs and other family members of the settlor were entitled to enjoy only a trifling portion of this small income. Mr. Pal pointed out to us that in the case of the Privy Council provisions were made for maintenance of the managers of the temple only and not for their family members. But in the instant case not only the trustees but other members of the family were entitled to derive benefits. To our mind, on the facts of this case, this is not a distinguishing feature as there are cases in which members of the family were entitled to receive small benefits but the court declared in favour of the validity of the trust. As an instance, we may refer to the Supreme Court's decision in Nirmala Bala Ghose v. Balai Chand Ghose. Our answer to the question in this reference, therefore, is that the properties comprised in " Jagadhatri Sampad Trust " created by the deed dated June 27, 1939, were not correctly included in the estate of the deceased as property passing on his death under section 5 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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