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, V.R.
KHANNA, HANS RAJ
CITATION:
1977 AIR 1523 1977 SCR (2) 483
1977 SCC (2) 519
ACT:
Income Tax Act 1922–Sec. 4(3)(i), 22(2)-Trust for
religious and charitable purposes–Whether deduction to
deity or vesting in trustees–If income of deity-Charge and
diversion of income at source.
Indian Succession Act, 1925–Sec. 87-Will—Construction
of a Will of a religious Hindu drafted by English solici-
tor–Whether court must look into the real intention.
HEADNOTE:
Raja Rajendra Mullick Bahadur of Calcutta executed his
last will on 21-2-1887. The author of the Will was a
religious minded Indian, the draftsman of the document was
John Hart, an English Solicitor. The Will open with the
words ’I hereby dedicate and make debutter my
Thakurbaree’.The Income Tax Officer issued notices requiring
filing of the returns against the Deity Thakurbaree. On
b:half of Deity, a nil income return was filed under s.
22(2) of the Indian Income Tax Act, 1922 for the assessment
years 1956-57 and 1957-58. In connection with the writ
petition filed in the High Court for the proceedings in
respect of assessment years 1955-56 it was conceded by the
Revenue that a part of the income of the assessee which
would be proved before the Income Tax authorities to have
been applied in connection with feeding of the poor, sub-
scription to other charities enuring for the benefit of the
public would be exempted under s. 4(3)(i) of the Income Tax
Act, 1922.
The Revenue contended that on a true construction of the
said will there was a complete dedication of the property
to the Deity and, therefore, the income arising from the
said property was taxable in the hands of Deity. It was,
however, contended by the assessee that the remuneration of
the trustees and the allowances to the widows of the de-
ceased trustees as provided in the Will created a charge on
the income of the trust estate and should therefore be
treated as diversion of the income of the trust before it
accrued in the hand of the trustees. The Income Tax Officer
taxed the income of the Deity deducting therefrom such
amounts as were conceded before the High Court in respect of
the prior year. The appeal preferred by the assessee was
dismissed by the Appellate Assistant Commissioner. Before
the Tribunal, the Revenue substantially succeeded.
Thereafter, the Tribunal referred 4 questions of .law to
the High Court, two at the instance of the assessee and. two
at the instance. of the Revenue., The High Court on a metic-
ulous consideration of the entire Will decided against the
Revenue and took the view that reading the Will as a whole
the entire beneficial interest in the properties did not
vest in the assessee Deity. Assessee Deity was not the owner
of the properties and, therefore. the only income which
could be subjected to income tax in the hands of the asses-
see would be the beneficial interest of the said Deity under
the Will which would be the expenses incurred for Seva Puja
of the Deity and for the various religious ceremonies con-
nected with the said Deity and the value of the residence of
the Deity in the temple.
Allowing the appeal,
HELD: 1. The Will represents pious Bengali Wishes and
disposition but drafted in the hands of an English Solici-
tor. The court’s function in such an
484
ambiguous situations to steer clear of the confusion impart-
ed by the diction and to read the real intention of the
testator. The courts discerning loyalty is not to the
formalitistic language used in drawing up the deeds but to
the intentions which the disponer desired should take effect
in the manner he designed. The real question is whether
the testator created an absolute or partial debutter or
was there no dedication to the idol but a vesting of the
legal estate in the trustees. The use of the words like
trust, trustees and Shebaits can lend support to the conten-
tion that the legal estate vested in the trustees.However,
the court has to push aside the English hand to reach at the
Indian heart. We are construing the Will of a pious Hindu
aristocrat whose faith in ritual performances was more than
matched by his ecumenical perspective. Secondly, the sacred
sentiment writ large in the Will is his total devotion and
surrender to the family Deity Shri Jagannathjee. It looks
like doing Violence to the heart of the Will if one side-
steps the Deity to the status of but one of the benefici-
aries. The Will in the forefront declares the dedication to
the Deity.The expression trust, trustees and shebaits were
indiscriminately used. The expressions are uncertain of the
precise import of these English legal terms in the Indian
context. The idol was, therefore, the legal owner of the
whole and liable to be assessed as such. [485A, B, C, 490F,
491B, C-D, 497D, 499E]
2. The court negatived the contention that even if the
property vested in the Deity, all the amounts to be spent on
the Shebaits and the members of their family on the upkeep
of horses and carriages and repair of buildings etc. were
charge on the income and, therefore, the same did not and
could not come into the hands of the Deity as his income and
could not be taxed as such. If the Shebaits received rent
and interest to the extent of these other disbursements they
received the amounts merely as collectors of rents etc. and
not as receivers of income. The terms in which the direc-
tions are couched do not divest the income at the source
but merely direct a Shebait to apply the income received
from the debutter properties for specified purposes.
[499E-H, 501F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1682-1683/
71.
(From the Judgment and Order dated the 14th May 1969 of
the Calcutta High Court in I.T. Ref. No. 60 of 1968)
G.C. Sharma and R.N. Sachthey, for the appellant
B. Sen, S.K. Banerice and P.K. Mukherjee, for respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.–The fiscal–not the philosophical-
implications of Jesus’ pragmatic injunction ‘Render to
Ceasar the things that are Caesar’s, and to God the things
that are God’s–fall for jural exploration in these appeals
by special leave, the appellant being the Union of India
represented by the Commissioner of Income-tax, West Bengal,
and the Respondent, Sree Jagannathji and the subject-matter
the taxability of the deity Jagannathji by the State under
the Income-tax Act, 1922, beyond the admitted point. To
appreciate the exigibility issue, we have to flash back to
19th Century Bengal and the then prevailing societal ethos
of affluent Hindu Piety, and we find ourselves in the spir-
itual-legal company of Raja Rajendra Mullick, at once holy
and wealthy, who, in advancing years, executed a comprehen-
sive will to promote his cherished godly wishes and to
provide for his secularly dear cause and near relatives.
The construction of this testamentary complex of disposi-
tions and the location of its destination are the principal
exercises in these appeals.
485
Raja Rajendra Mullick Bahadur of Calcutta executed his
last will and testament on 21 February 1887. While the
author of the will was a Bengali brahmin of the last cen-
tury, the draftsman of the document was John Hart, an Eng-
lish 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 disposi-
tions–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 if
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 unbur-
dened himself of his properties for causes and purposes dear
to his heart. The Court’s discerning loyalty is not to the
formalistic language used in drawing up the deed but to the
intentions which the disponer desired should take effect in
the manner he designed. This hack-drop of observations
made, we proceed to a broad delineation of the actual provi-
sions.
The munificent testator had enormous estates, lavish
charity, piety aplenty and a large family. So he trifurcat-
ed his assets as it were, provided for religious objects,
eleemosynary purposes and members of his family. The last
was distinctly and separately dealt with and we are not
concerned with the bequests so made. But the first two were
more or less lugged together and ample properties earmarked
therefore. How did he engineer into legal effect these twin
purposes ? Did he create an absolute debutter of these
properties, totally dedicating them to the deity whose
devotees he and his father were, coupled with several direc-
tions, addressed to the shebaits, for application of the
income for performance of stated pujas, execution of public
charitable projects and payment of remuneration for sheba
plus liberal grants and facilities to the sons and widows of
sons who were objects of his bounty? Or did he really
create a trust in the sense of the English law vesting the
whole estate in trustees saddled with obligations to expend
the income for enumerated items, godly and philantrophic,
creating but a partial debutter? This is the key question
calling for adjudication but an alternative but interlaced
issue also arises. Assuming that a total debutter had been
created, did the will contain directions for expenditure
which siphoned off the income, as it accrued, for specified
objects and entities in such manner that by such over-riding
diversion at the source, such income did not get into the
hands of Lord Jagannath qua His income but reached Him
merely as collector of. those receipts to be disbursed for
meeting those paramount claims and charged for those des-
tined uses ? Or could it be the true meaning of the
clauses that the whole income was to be derived by the deity
but later to be applied by the human agencies representing
Him for fulfiling objects, secular and sacred?
A skeletal picture of the complex of provisions of the
will has to be projected now for a better understanding of
the pros and cons of
486
the controversy. 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 dabuttar all the jewels… hereto-
fore used, for the worship of the Thakoors… is another
racital whereby valuables are dedicated. These are for
direct use and both the Lord’s mansion and the Lord’s adorn-
ments yield great spiritual bliss but no secular income.
Prima facie, the language is unmistakable and a full dedica-
tion and, argues Shri Sharma for the Revenue, the creation
of absolute debutter is an unchallengeable inference.
Equally indisputable is the character of the last of be-
quests 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
properties’–so run the. words which are followed by a list
of properties and a string of directions addressed to ’sh-
ebaits and trustees’ or ‘shebaits or trustees’ or these two
indifferently and indiscriminately mentioned singly. He
even directed a board of trustees to be constituted in the
event of male heirs failing, to take over shebaitship and
execution of the trusts–and here and there referred to
trusts under the deed. Nor were all the incomes to be devot-
ed to pooja. His cultivated and compassionate mind had many
kindly concerns and finer pursuits.
The enlightened donor appears to have had an aristocrat-
ic and aesthetic flair for promoting the joy of life and a
philanthropic passion to share it, even posthumously, with
the public at large. His charitable disposition seems to
have overpowered his love of castemen and his kindness
for living creatures claimed a share of his generosi-
ty. These noble and multiple instincts persuaded him to
make an art collection which could be reckoned as among the
best an individual could be proud of anywhere in the world
and these paintings and sculptures, he directed, shall be
kept open for public delight, free of charge. He main-
tained a glorious garden which he wished should be kept in
fine trim and be hospitable for any member of the public who
liked to relax in beautiful surrounds. His compassionate
soul had, in lofty sentiment of fellow-feeling, collected
birds and non-carnivorous animals. But, after him, the
aviary and meanagerisa were to be taken care of and lovers
of birds and animals were, according to his testamentary
direction, permitted to seek retreat and pleasure among
there natural environs. Of course, he rewarded his sons
and widows sumptuously, the lay-out on the rituals of wor-
ship consuming but a portion of the total income.
At this stage, the litigative journey may be sketched to
indicate how the dispute originated, developed and gained
access to this Court, The story of this tax entanglement
began nearly two decades ago with the I.T.O. issuing notices
and the assessee deity responding with ‘nil’ returns under
s. 22(2) of the Indian Income-tax Act, 1922 for the
487
assessment years 1956-57 and 1957-58. A portion however
was, by legitimate concession of the Income Tax Department,
carved out of the total income as non-taxable. According
to the High Court.
“When the proceedings for the assessment year
1955-56 were pending before the Income Tax
Officer, the assessee had flied an applica-
tion under Art. 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 proceed-
ings 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 exempt-
ed under s. 4(3)(i) of Indian Income-tax Act,
1922.”
We regard this stand of the Revenue as correct in the light
of the provisions of s.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 out-
side 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 understanding of s.4(3) (i) of the Act, was that
these charitable expenditures were totally deductible from
the computation for fixing the tax.
Let us continue the later developments. For assessment
for the year 1956-57 the Income-tax Officer was of the
opinion, on the construction of the said will, that besides
directions for spending amounts on charitable objects, the
will had also provided for payment of certain fixed allow-
ances to the acting shebaits as well as the widows of the
deceased shebaits, maintenance of horse-drawn carriages and
motor cars for the use of the shebaits, medical aids to the
shebaits, and the members of their families, expenses on
account of Srardh caremony of the ancestors of the shebaits
and other private charities. On behalf of the assessee it
was claimed before the ITO that the remuneration the
trustees and the allowances to the widows of the deceased
trustees as provided in the will created a charge on
the income of the Trust estate and should therefore be
treated as diversion of the income of the trust before it
accrued in the hands of the trustees. The ITO rejected
that contention. lie held that reading the will as a whole
it was clear that the remuneration to the shebaits and the
allowances to the widows were merely applications of the
trust income and as such not deductible. According to the
ITO, under the will, the shebaits and trustees were to,
collect the income of the whole debutter property in the
first instance and after paying the government revenues and
taxes and rates and other outgoings, perform the puja and
the other ceremonies for the worship of the family deity and
therefore spend amounts on charitable and public purposes
and lastly to pay the remuneration, allowances and
1546SCI/76
488
private donations. The ITO therefore determined the income
of the trust estate under ss. 9 and 12 of the Indian In-
come. Tax Act, 1922 and computed income from property at Rs.
1,94,377/- and income from other sources at Rs. 97,248
making a total of Rs. 2,91,625/-. From the above he
deducted the amounts spent on charitable objects such as
feeding of the poor, maintenance of art gallery and manager-
ie for birds and non-carnivorous animals. A sum of Rs.
1,32,023/- was subjected to tax for the assessment year
1956-57. The ITO followed the same principle for 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 Sradh
and other ceremonies for the spiritual benefit of the testa-
tor 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 s. 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
fight in rejecting the assessee’s claim that
the only incomes which could be subjected to
income-tax in the hands of the deity Sri Sri
Jagannath Jee are the beneficial interests of
the said deity under the terms of the will as
represented by the expenses incurred by the
shebaits for the daily Seva Puja of the deity
and the performance of the various
religious ceremonies connected with the said
deity as mentioned in the will ?
(2) If the answer to the above question be in
the positive, whether on the facts and in the
circumstances of the ease and on a proper
interpretation of the terms of the will of the
late Raja Rajendra Mullick Bahadur, the Tribu-
nal was right in holding that the expenses
incurred for payment of remuneration to the
shebaits, and the monthly allowances paid to
the widows of the deceased shebaits, as also
the expenditure incurred for maintaining
horses, carriages or motor cars for the use of
shebaits concerned and the annual value of
such part of the debutter property as is being
used by the shebaits and their families for
the purpose of their residence, all in terms
of the aforsaid will, could be included in the
total income of the assessee in this case ?
(Questions referred by assessee)
489
(3) Whether, on the facts and in the circum-
stances of the case and on a proper construc-
tion of the will of Raja Rajendra Mullick
executed on the 21st February 1887 the Tribu-
nal was right in holding that the surplus of
the income of the estate after defraying the
expenses mentioned in the said will was held
in trust for charitable purposes and was thus
exempt from taxation under s.4(3) (i) of the
Indian Income tax, Act 1922 ?
(4) Whether, on the facts and in the circum-
stances of the case and on a proper
construction of the aforesaid will the
tribunal was right in holding that the
amounts spent for performing Sradh and other
ceremonies for the Spiritual benefit of the
testator as well as subscriptions and dona-
tions to charitable societies and for
charitable purposes were diverted by an over-
riding title and was accordingly to be exclud-
ed from the total income of the Deity ?”
Questions referred by the CIT)
The High Court, on a meticulous considera-
tion of the entire will, decided against the
Revenue on the spinal issue and took the view
that
“reading the will as a whole we are of the
opinion that the entire beneficial interest in
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 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 reli-
gious 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 over-tiding
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 circum-
stance 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 laid
490
out in fact in one of the assessment years. We give the
actuals for 1956-57:
Rs.
(1)Expenses incurred for the poojas
specified for the will
4,637/-
(2)The money laid out on feeding the poor
78,295/-
(3)The cost of maintaining the art gallery
36,963/-
(4) Upkeep of the aviary and menagerie
13,263/-
(5) Cost of keeping the garden trim
2,979/-
(6) Other miscellaneous charges
4,014/-
(7) Expenses laid out on the shebaits
and trustees, their residence and main
tenance of the horse-drawn carriages etc
66,254/-
It is fair to comment that, even making allowance for
annual variations, price fluctuations and change in circum-
stances, the pujas consume but a small fraction, that public
charitable purposes bulk prominently in the budgeted ex-
penditure and that the sums spent on the ‘shebaits and
trustees’ are liberal enough to exceed prudent reward for
services. To set the record straight, it must be stated
that a preponderant part of the income was spent on general
public charitable causes like poor feeding, art gallery,
aviary, menagerie and keeping a garden. Together with the
cost of the rituals the budget was dominently religion-
charitable. These facts have no bearing on the construc-
tion of the will but invests the perspective with a touch of
realism.
We may now tackle the crucial problem in the case–the
decoding of the will to discover the repository of the gift.
Did the testator create an absolute or partial debutter?
Or was there no dedication to the idol but a vesting of the
legal estate in the trustees (in the sense of the English
law) with figuciary obligations to expend for specific
purposes. Shree Jagannathjee ranking as one among
the recipients of his benefactions ? The use of words like
‘trusts’, ‘shebaits and trustees’ has lent muscle to this
logomachic exercise but we have to push aside the English
hand to reach at the Indian heart.
The principles governing the situation are those which
rulings of courts, imbibing the Indian ethos, appreciating
the Hindu sacred sentiments and applying the law of reli-
gious and charitable trusts gathered from ancient texts,
have crystallised into an informal code. The passage of
decades after the enactment of the Constitution has not
succeeded in persuading Parliament into legislative action
for making a secular code except of some limited extent
governing the subject of Indian charitable trusts. And
this unnoticed parliamentary procrastination has com-
pelled 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. Mukher-
jea on Hindu Law Religious and Charitable Trusts, relied on
by counsel on both sides.
491
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 Hindus aristocrat whose faith in ritual perform-
ances 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 Jagannath
Jee.
It is easy to see that, in formal terms, the author
makes a dedication to Sree Jagsmath Jee 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
trustees’ and ’trusts’ and urges that there are no clear
words of vesting so far as the second category of properties
is concerned. It is trite but true that while the label
‘debutter’ may not clinch the legal character, there is much
in a name, fragrant with profound sentiment and expressive
of inner dedication. It looks like doing violence to the
heart of the will if we side-step Sree Jagannath Jee as the
divine dedicatee, down-grade him to the status of but one of
the beneficiaries and; by judicial construction, transmit
the sanctified estate into human hands as the legal owners
to distribute the income, one of the several objects being
doing pujas prescribed.
The will, right in the forefront, declares: ‘I hereby
dedicate make debutter’, ‘I do hereby dedicate and make
debutter in the name and for the worship of my Thakoor Sree
Sree Jagannath Jee the following properties…’ ‘I hereby
give, dedicate and make debutter all the jewels … to the
said Thakoor Sree Sree Jagannathjee’. These solemn and
emphatic dedicative expressions cannot be wasted words used
by an English Solicitor but implementatory of the intention
of the donor whose inmost spiritual commitment, gathered
from the many clauses, appears to be towards his family
Thakoor. Of course, if there are the clearest clauses
striking a contrary note and creating but a partial debut-
ter, this dedicative diction must bow down. The law is set
down thus by B.K. Mukerjea:
“The fact that property is ordinarily de-
scribed as Debutter is certainly a piece of
evidence in favour of dedication, but not
conclusive. In Binod Behari v. Manmatha (21
C.L.J. 42) Cox J. observed as follows :–
“The fact that the property is called
Debutter is a doubtless evidence in the plain-
tiff’s favour but it does not relieve them of
the whole burden of proving that the land was
dedicated and is inalienable.”
(p. 131)
Though inconclusive it carries weight in the light of what
we may call the mission of the disposition which is inspired
by devotion to ‘my Thakoor’ and animated by a general reli-
gious fulfilment. It must be
492
remembered that the donor was not tied down by bigotry to
performance of pujas, important though they were. A more
cosmic and liberal view of Hinduism informed his soul and so
in his declaration of dedication to Sree Jagannathjee he
addressed to the managers many directions of a broadly
religious 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 commonplace and, while it is overt-
ly secular, its motive springs from spiritual source& It is
religion to love the poor. Likewise, his insistence on the
aviary and the menageries 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 obvi-
ously in religious sympathy with fellow-beings of the
lower order when he should 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 plainer to regard it as a gesture of aesthetics and
charitable disposition. God is Truth, Truth is beauty,
beauty Truth. A thing of beauty is a joy for ever. In
fact, for a highly elevated Indian mind, this conceptual
nexus is not far-fetched. The garden and the 1love of flow-
ers strike a psychic chord at once beautiful and religiously
mystical, as any reader of Wordsworth or other great poet in
English or Sanskrit will agree. The point is that the
multiform dispositions had been united by a spiritual
thirst and, if read in their integrality, could be desig-
nated religions-cum-charitable. In sum, the primary in-
tendment was to dedicate as debutter and to direct fulfil-
ment of uplifting religions and para-religious purposes, the
focus being on worship of Sree Jagannathjee and the fall-out
some subsidiary, yet significant, charitable items. The
finer note struck by the felt necessities of his soul was
divinised and humanised, the central object being Sree
Jagannathji, the Lord of the Universe.
Of course Sri Sen submits that verbalism cannot take us
far and the description of debutter cannot be decisive
because the magnitude of the expenses on the various items,
apart from other telling clauses
493
which will presently advert to, was indicative not of a
dedication to the idol but of the general charitable bunch
of dispositions to be carried out through the agency of
trusteeship in the sense of the English Law. For instance,
he argues that feeding the poor, maintenance of the art
gallery, menagerie, aviary and gardens and fulfilment to
the other’ charities have little to do with idol qua idol.
Moreover, making a substantial margin for the remuneration
of the Shebaiti, there is some clear excess in favour of
donor’s family members in the amounts to be paid or spent on
behalf of the shebaits-cum-trustees. These are strongly
suggestive of a non-debutter character, especially because
the cost of the poojas makes but a small bite on the total
income. He reinforces the submission by many other points
which may be mentioned at this stage. He states that the
donor, if he meant a straightforward case of debutter, would
have confined himself to the expression ‘shebaits’ but there
was a sedulous combination of ‘shebaits’ and or ‘trustees’
and there was also reference to trusts in some places.
Provision for the heirs, for the residence of the shebai-
tee’s families, the norse carriages 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 Trus-
tees 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 trustee-
ship, 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 pooja 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 if 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 poor, repairs and maintenance of a miscellaneous
sort plus detailed directions towards all shebaits and
trustees are telling against absolute debutter. Since the
expenses for the poojas cover only a small part of the total
income, a correct reading of the will may be to hold that
the corpus vests in the trustees, subject to an interest
being created in the deity to the extent of the share of the
income reasonably necessary for the pooja and residence of
the Lord. We see force in these submissions and shall deal
with them presently. Before that we may state the correct
legal approach as set out by Mukherjea in his Tagore Law
lectures:
“Even when a deal of dedication is not ficti-
tious or benami the provisions of the deed
might show that the benefit intended for the
deity was very small or of a nominal charac-
ter. If the gift to the deity is wholly illu-
sory there is no Debutter
494
in the eye of law, but there are cases where a
question arises on the construction of the
document itself, whether the endowment created
was only a partial one meaning thereby that
the dedicated property did not actually vest
in the idol, but the latter enjoyed a charge
upon the secular property of the founder,
given to his heir or other relations, for the
expenses of its worship. I will discuss this
matter separately under the second head. I
may only state here that where there is an out
and out dedication to an idol, the reservation
of a moderate portion of the income of the
endowed estate for the remuneration of the
shebait would not invalidate the endowment
either as a whole or to the extent of the
income so served. In Jadu Nath v. Thakur
Sitaramji (44 I.A. 187) there was a dedication
of the entire property of the founder to the
idol, and the direction given was that half of
the income was to be applied for the worship
of the idol and repairs of the temple, and the
other half was to go for the upkeep of the
managers. Their Lordships of the Judicial
Committee in holding the gift as a valid
Debutter observed as follows :—
“The deed ought to be read just as it appears,
and there is no reason why it should not be so
construed as meaning simply what the language
say% a gift for the maintenance of the idol
and the temple, under which the idol is to
take the property, and for the rest, the
family are to be the administrators and manag-
ers and to be remunerated with half the income
of the property. If the income of the proper-
ty had been large a question might have been
‘raised, in the circumstances as throwing some
doubt upon the integrity of the settlor’s
intentions, but as the entire income is only
800 rupees a year, it is obvious that the
payment to these ladies is of the most tri-
fling kind and certainly not an amount which
one could expect in a case of this kind.”
Following this decision it wag held by the
Calcutta High Court in Chandi v. Dulal (30
CMN 930) that a provision for remuneration of
the Shebaits with half of the income of the
Debutter property (which proved to be small
sum)as well as their residence in the Thakur-
bari 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
o] the poor. Sadavart or entertainment of
pilgrims and guests is often found to be an
adjunct of a public Debutter. In the case of
Monohar Mukherji v. Bhupendra Nath Mukherjee
(37 CWN 29 FB) there was a provision in the
deed of dedication that the surplus income of
the endowment should be spent upon maintenance
of childless widow
495
of the family and construction of
roads and excavation of the tanks for
public use, and these directions, it was
held, did not make the dedication incomplete.
(pp. 129-130)
(Underscoring supplied with a pur-
pose)
The demarcating line between absolute and
partial debutter is drawn by the author thus:
“Where the dedication made by settlor in
favour of an idol covers the entire benefi-
cial interest which he had in the property,
the Debutter is an absolute or complete
Debutter. Where however, some proprietary or
pecuniary right or interest in the property
is either undisposed of or is reserved for
the settlor’s family or relations, a case of
partial dedication arises. In a partial
dedication the deity does not become the owner
of the dedicated property but is in the posi-
tion of a charge holder in respect of the
same. A charge is credited on the property
and there is an obligation on the holder to
apply a portion of the income for the reli-
gious purposes indicated by the settlor.
The property does not become extra-commerci-
um like Debutter property, strictly Speaking
so called, but is alienable subject to the
charge and descends according to the ordinary
rules of inheritance. It can be attached and
sold in execution of decree against the
holder. Whoever gets the property however
takes it burdened with the charge or reli-
gious trust. In Dasaratha Rami Reddy v.
Subba Rao (1957 SCR 1122) it was observed by
the Supreme Court that the question whether a
dedication was complete or partial must
depend on whether the settlor intended that
his title should be completely extinguished
and transferred to the trust, that in ascer-
taining that intention regard must be had
to the terms of the document as a whole and
that the use of the word ‘trust’ though of
some help in determining such intention was
not decisive of the matter.
It sometimes happens that the settlor
merely provides for the perfomance of certain
religious services or charities from out of
the income of properties specified, and the,
question arises whether in such cases the
specified properties themselves form the
subject-matter of dedication. Where the
entire income from the properties or a sub-
stantial 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
496
will continue to be held in private ownership,
subject to a charge in favour of the charities
mentioned?’
(p. 134-135)
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(1) the Judicial Committee was dealing
with a 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 further provi-
sions such as that the residue after defraying
the expenses of the temples ‘shall be used by
our legal heirs to meet their own expenses’,
and the circumstances, such as that in the
ceremonies to be performed wore fixed by the
will and would absorb only a small proportion
01 the total income, my indicate that the
intention was that the heirs should take the
property subject to a charge for the perform-
ance of the religious purpose named.”
Granting the creation of a debutter, the telling tests to
decide as between an absolute and partial debutter cannot
necessarily be gathered from this ruling. On the other
hand, this very ruling emphasized that a substantial part
of the income was to go to the legal heirs to meet their own
expenses and that circumstances deflected the decision.
Moreover. Lord Shew of Dunfermline, there observed:
“The case (jadu Nath Singh: 44 I.A.
187) merely illustrates the inexpediency of
laying down a fixed and. general rule
applicable to the construction of settlements
varying in terms and applying to estates
varying in situation.”
(p. 149)
The observations of this Court in Charusila Dasi(2)–a case
dealing with the question of legislative competency on the
constitutionality of the Bihar Hindu Religions Trusts Act-
seem to suggest that the establishment of a hospital for
Hindu females and a charitable dispensary for patients of
any religion or creed were consistent with the creation of a
religious and charitable trust.
The crux of the matter, agitated before us, is the
determination of the true intention of the testator and this
has to gathered from the name used, the recitals made and
the surrounding circumstances. From a bestowal of reflec-
tion on the subject and appraisal in the light
(1) L.R. 48 I.A. 143. (2) [1959] Supp.2 S.C.R. 601.
497
of the then conditions, sentiments and motivations of the
author, we are inclined to the view that Raja Mullick, the
maker of the will, dedicated as debutter to his Maker and
Thakoor the entire estate, saddling the human agents or
shebaits with duty to apply the income for godly and near
godly uses and for reward of the shebaits and for their
happily living. Of course, he had horses and carriages and
other items to make life enjoyable. Naturally, his behest
covered the obligation to keep these costly things in good
condition and regular use. The 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
did to his Thakoor, as he unmincingly 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 delights 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 including benefit to family members, their resi-
dence and transportation.
How then do we reconcile such a conclusion with the many
points forcefully urged by Shri B. Sen and averted to
earlier ? We think that the expressions ‘shebaits and
trustees’, ‘shebaits or trustees’, ‘shebaits’ ‘trustees’,
and ‘trusts’ were indiscriminately used, indifferent to
sharp legal semantics and uncertain of the precise import of
these English legal terms in the Indian context. More, an
English solicitors familiar legal diction super-imposed on
an unfamiliar Indian debutter, rather than an exercise in
ambiguity or deliberate dubiety, explains the odd expres-
sions in the will. The author merely intended to dedicate
to Sree Jagannathji and manage through shebaits. Of course,
the reference to the Board of Trustees, the majority vote
and the like, strike a discordant note but the preponderant
intent is what we have held it is.
The magnitude of the expenditure on the items, secular
and sacred, may vaguely affect the conclusion but cannot
conclusively decide the issue. The religious uses related
to Sree Jagannathji, the Lord of the Universe, cannot be
narrowly restricted to rituals but must be spread out to
embrace universal good, especially when we read the mind of
a Hindu highly evolved and committed to a religion whose
sweep is vasudhaiva kudumbakam (All creation is His family).
The blurred lines between the spiritual and the secular, in
the context of this ease, do not militate against our con-
struction.
We are not unmindful of the stress Shri B. Sen placed on
the passage in B.K. Mukherjea which we may extract:
498
“But it happens in some cases that the
property dedicated is very large, and the
religious ceremonies which are expressly
prescribed by the founder cannot and do not
exhaust the entire income. In such cases some
portion of the beneficial interest may be
construed as undisposed of and cannot but
vest as secular property in the heirs of the
founder. There are cases again where although
the document purports, on the face of it, to
be an out and out dedication of the entire
property to the deity, yet a scrutiny of the
actual provisions reveals the fact that the
donor did not intend to give the entire inter-
est to the deity, but reserved some portion of
the property or its profits for the benefit of
his family relations. In all such cases the
Debutter is partial and incomplete and 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 reli-
gious 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. Juggutsoondaree (8 M.I.A. 66) which
was followed and applied in the subsequent
case of Ashutosh v. Durga (L.R. 6 I,A.
182) .”
Sonatun Bysack, 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 judg-
ment ‘leads us to the conclusion that ’al-
though the will purports to begin with an
absolute gift in favour of the idol, it is
plain that the testator contemplated that
there was to be some distribution of the,
property according as events might turn out;
and that he did not intend to give the proper-
ty absolutely to the idol seems to their
Lordships to be clear from the directions
which are contained in the third clause, that
after the expenses of the idol are paid, the
surplus shall be accumulated; and still more
so from the fifth ‘clause by which the testa-
tor has provided for whatever surplus should
remain out of the interest of the property,
the expenses of the idol being first deducted.
It is plain that the testator looking at the
expenses of the idol was not contemplating an
absolute and entire gift in favour of the
‘idol’. On a construction of the entire will
it was held that there was a gift to the/our
sons of the testator and their offspring in
the male line as a joint family, and the four
‘sons were entitled to the surplus of the
property after providing for the performance
of the ceremonies and festivals of the idol
and the provisions in the will for mainte-
nance.”
(p 136—137, Mukherjea)
499
The cardinal point to notice is what Pande
Har Narayan (48 I.A. 143 emphasized:
“The question whether the idol itself
shall be considered beneficiary, subject to a
charge in favour of the heirs or specified
relatives of the testator for their upkeep, or
that, on the other hand, these heirs shall be
considered the true beneficiaries of the
property, subject to a charge for the upkeep,
worship and expenses of the idol, is a ques-
tion which can only be settled by a conspectus
of the entire provisions of the will.”
(p. 137, Mukherjea)
If, on a consideration of the totality of
terms, on sifting the more essential from the
less essential purposes, on sounding the depth
of the donor’s wishes to find whether his
family or his deity were the primary benefici-
aries and on taking note of the language used,
if the vesting is in the idol an absolute
debutter can be spell out. So considered, if
the grant is to the heirs with a charge on the
income for the performance of pujas, the
opposite inference is inevitable. Before us,
there is no dispute between the heirs and the
idol. The point mooted is about the creation
of an English trust, an unconventional legal
step where the dedication is to a deity. On a
full study of the will as a whole, we think
that this benignant Bengalee’s testament,
draped though in Victorian verbal haberdasho-
ry, had, on legal auscultation, the Indian
heart-beats of Hindu religious culture, and so
scanned, his will intended vasting the proper-
ties 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 debut-
ter, there is still many a slip between the
lip and the cup, between the income and exigi-
bility 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 over-riding charge, sums of
money 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 Jogen-
dra Nath(1) still all the amounts meant to be
spent on the shebaits and the members of the
family, on the upkeep of horses and carriages
and repair of buildings etc., were charged on
the income and by, paramount provisions,
directed to these uses. These sums did not
and could not come into the hands of the deity
as its income and could not be taxed as such.
If the ‘shebaits and trustees’ collected the
income by way of rents and interests, to the
extent of these other disbursements they
received the amounts merely as collectors of
rents etc; not as receivers of income. Such
amounts were free from income-tax in the hands
of the idol.
(1) 74 I.T.R. 33.
500
The principle we have set out above has been blessed by
a uniform catena of cases. The leading ruling on the sub-
ject is by the Judicial Committee in Bejoy Singh
Dudhuria(1). Lord Macmillan there observed as follows:
“When the Act by s. 3 subjects to charge
‘all income’ of an individual it is what
reaches the individual an income which it is
intended to charge. In the present case the
decree of the court by charging the appel-
lant’s whole resources with a specific payment
to his stepmother has to that extent diverted
his income from him and has directed it to his
step-mother; to that extent what he receives
for her is not his income. It is not a case
of the application by the appellant of part of
his income in a particular way, it is rather
the allocation of a sum out of his revenue
before it becomes income in his hands.”
(p. 138-139)
A case in contrast is P.C. Mullick v. Commis-
sioner of Income tax(2). There
“The testator died in October, 1931. By
his will he appointed the appellants (and
another) his executors. He directed them to
pay his debts out of the income of his proper-
ty, and to pay Rs. 10,000/- out of the income
of his property on the occasion of his ‘Addya
Shradh’ for expenses in connection therewith
to the person entitled to perform the Shradh.
He also directed his executors to pay out of
the income of his property the costs of taking
out probate of his will After conferring out
of income benefits on the second wife and his
daughter and (out of the estate) benefits on
the sons, if any, of his daughter, and after
providing for the payment out of income
‘gradually’ of divers sums to some persons,
and certain annuities to others, he be-
queathed all his remaining property (in the
events 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 pursu-
ance of an obligation imposed by their testa-
tor. It is not a case like the case of Raja
Bejoy Singh Dudhuria v. Commissioner of Income
Tax, Calcutta in which a portion 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.”
(1) (1933) 1 LT.R. 135. (2) (1938) 6 I.T.R. 206.
501
In Commissioner of Income-tax v. Sitaldas Tirath-
das(1) 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 (at p. 374):
“in our opinion, the true test is
whether the amount sought to he deducted, in
truth, never reached the assessee as his
income. Obligations, no doubt, there are in
every case, but it is the nature of the
obligation which is the decisive fact. There
is a difference between an amount which a
person is obliged to apply out of his income
and an amount which by the nature of the
obligation cannot be said to be a part of the
income of the assessee. Where by the obliga-
tion income is diverted before it reaches the
assessee, it is deductible; but where the
income is required to be applied to discharge
an obligation after such income reaches the
assessee, the same consequence in law does not
follow. It is the first kind of payment which
can truly he executed and not the second.
The second payment is merely an obliga-
tion to pay another a portion of one’s own
income, which has been received and is since
applied. The first is a case in which the
income never reaches the assessee, who, even
if he were to collect it, does so, not as part
of his income, but for and on behalf of the
person to whom it is payable. in our opinion,
the present case is one in which the wife and
children of the assessee who continued to be
members of the family received a portion of
the income of the assessee, after the assessee
had received the income as his own. The case
is one of application of a portion of the
income to discharge an obligation and not a
case in which by an overriding charge the
assessee became only a collector of another’s
income.”
The High Court, in a laconic paragraph, dismissed
this contention but Shri Sen submitted that there was merit
in it and had to he accepted. We agree with the High Court
because the terms in which the directions are couched do not
divert the income at the source but merely command the
shebaits to apply the income received from the debutter
properties for specified purposes. We may quote to illus-
trate:
“I direct that the shebaits and
trustees shall out of the Debutter funds
maintain and keep a sufficient number of
carriages and horses for their use and comfort
and that of their families and after providing
for the purposes aforesaid out of the
Debutter income I direct the shebaits and
Trustees to pay to each of the shebaits for
the time being who shall actually take part in
the performance of the duties of the Shebaits
and the execution of the Trusts of this fund
as and by way of remuneration for their serv-
ices the sum of Rupees Five hundred a
month …. ”
(1) 41 I.T.R. 367.
502
“I direct that the widows of my three
deceased sons
Greendro, Sorrendro and Jogendra who assist in
the work of preparing articles of offerings to
the Thakoors and for the feeding and distri-
bution 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 receive a remuneration of the sum
of Rupees fifty each a month from the income
of the debutter fund.”
So the shebaits first got 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 answer-
ing the above questions we may state that all income ear-
marked for religious and charitable purposes conforming to
s. 4(3)(i) read with Explanation to s. 4(3) of the 1922 Act
shall not be included in the total income. It is also clear
that whatever income was agreed to be excluded in terms of
the concession made by the Revenue in the High Court shah
remain excluded.
The fluctuating fortunes of this litigation have been occa-
sioned by the discordant notes struck by the different
clauses of the will and the inevitable element of confusion
injected by the religious, charitable and secular wishes of
the Hindu testator being translated into formal, legal terms
by an English solicitor in the latter half of the last
century. He, therefore, direct that the parties do bear
their own costs throughout.
P.H.P. Appeal allowed.
503