Sabyasachi Mukharji, J.
1. What is the effect of the will dated 21st February, 1887, executed by late Raja Rajendra Mullick That is the main question that requires determination in this reference arising out of the assessments made on the assessee. Sri Sri Jagannath Jew, for the assessment years 1956-57 and 1957-58. In response to notice issued by the Income-tax Officer under Section 22(2) of the Indian Income-tax Act, 1922, returns of total income for the aforesaid assessment years showing 'nil' income were filed. 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. This order, however, was made without prejudice to the rights and contentions of the parties and particularly of the rights of the assessee to claim other exemptions before the income-tax authorities as allowable under the law either under Section 4 of the Indian Income-tax Act, 1922, or under any other section of that Act or any other provision of law.
2. 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 allowances 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 sradh ceremony of the ancestors of the shebaits and other private charities. On behalf of theassessee it was claimed before the Income-tax Officer that the remuneration of 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 Income-tax Officer rejected that contention. The Income-tax Officer 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 application of the trust income and as such not deductible. According to the Income-tax Officer, 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 thereafter spend amounts on charitable and public purposes and, lastly, to pay the remuneration, allowances and private donations. The Income-tax Officer, therefore, determined the income of the trust estate under Sections 9 and 12 of the Indian Income-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 menagerie for birds and non-carnivorous animals. A sum of Rs. 1,32,023 was subjected to tax for the assessment year 1956-57. The Income-tax Officer followed the same principle for the assessment year 1957-58 and determined the assessable income at Rs. 1,06,067.
3. The assessee preferred appeals before the Appellate Assistant Commissioner, who passed a consolidated order dated 25th November, 1963, dismissing the assessee's appeals on all the grounds.
4. The assessee thereafter preferred a further appeal before the Tribunal and a preliminary objection was raised that a deity being an artificial person was not assessable at all. This contention was rejected by the Tribunal. The Tribunal, however, was of the opinion that under the will the surplus income of the debutter estate after defraying all the expenses and paying the various sums to be paid under the aforesaid will was to be appropriated and disbursed for charitable purposes like feeding of the poor and distribution amongst the poor and as such it held that such surplus was exempt from taxation under Section 4(3)(i) of the Indian Income-tax Act, 1922. It was further contended on behalf of the assessee that, since all the properties of the debutter estate came from Raja Rajendra Mullick, the benefits therefrom must also be appropriated according to the terms of the will and that the only beneficial interest that was received by the deity under the will was the meeting of the expenses incurred for performing the various pujas and ceremonies connected with the aforesaid deity and the only income onwhich the deity should be assessed would be the value of the benefits the deity derived under the will, i.e., the expenses incurred for his seva puja, etc. It was urged before the Tribunal that the rest of the income had been diverted by the terms of the will to be spent for other purposes and the shebaits had to incur the said expenses not on behalf of the deity but under the directions of the testator. In the alternative, it was urged before the Tribunal that, as the major part of the income had been assessed under Section 9, all expenses claimed should be allowed as annual charges created under the will on the property. The Tribunal held that by the will the testator in this case had bequeathed the immovable and movable properties to the deity by way of an absolute debutter and the intention of the testator has been reiterated in the specific terms of the will directing that the religious trusts created therein should not at any time be divisible into palas or shares but the same should be administered as one entire trust and the trust shall be taken as being of a public nature for the continuance of the worship of the deity, for the feeding of the poor and for objects of charity, and for preserving the testator and his father's name and not as a private nature for the benefit of his heirs and descendants. The Tribunal further held that the direction contained in the will for the expenditure on the performance of sradh 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. The Tribunal, therefore, directed that this part of the expenditure should be excluded from the assessment on the same basis as the subscription and/or donation to chartiable societies or for charitable purposes in terms of the will. The expenses incurred for payment of remuneration to shebaits, pension to the widows as also expenditure for maintaining horses, carriages, motor cars, etc., could not, in the opinion of the Tribunal, be said to have been diverted by an overriding title because these were merely application of the income arising in the hands of the deity. On this aspect of the matter the Tribunal, therefore, confirmed the order of the Appellate Assistant Commissioner.
5. Both the assessee as well as the Commissioner of Income-tax made applications to the Tribunal for referring certain questions of law to this court. But the Tribunal has referred the following questions of law to this court under Section 66(1) of the Indian Income-tax Act, 1922. (A) Questions referred at the instance of the assessee:
'(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 which could be subjected to income-tax in the hands of the deity, Sri Sri Jagannath Jew, are the beneficial interests of the said deity tinder the terms of the will asrepresented 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 case and on a proper interpretation of the terms of the will of the late Raja Bahadur Rajendra Mullick, the Tribunal 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 us of the 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 their aforesaid will, could be included in the total income of the assessee in this case '
(B) Questions referred at the instance of the Commissioner of Income-tax :
'(1) Whether, on the facts and in the circumstances of the case and on a proper construction of the will of Raja Rajendra Mullick executed on the 21st February, 1887, the Tribunal 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 Section 4(3)(i) of the Indian Income-tax Act, 1922 ?
(2) Whether, on the facts and in the circumstances 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 donations to charitable societies and for charitable purposes were diverted by an overriding title and was Accordingly to be excluded from the total income of the deity '
6. Inasmuch as the main controversy in this reference centres round the question as to the true effect of the will of Raja Bahadur Rajendra Mullick, it will be necessary to examine the provisions of the said will, before adveiting to the rival contentions made in this case. It appears that Raja Bahadur Rajendra Mullick was a well-known inhabitant of Calcutta and left considerable movable and immovable properties. The will is dated the 21st of February, 1887. After stating that this was his last will and that he was residing at No. 20, Mooktaram Babu Street, in the town of Calcutta, the will contains the following statement:
'I hereby revoke all my former wills made before. I hereby dedicate and make debutter my Thakoorbaree at No. 20, Mooktaram Babu Street, Chorabagan, in the town of Calcutta, which was built by my father, the late Babu Nilmoni Mullick, and which has always been so used for theworship of Sri Sri Jagannathjew with other thakoors. I do hereby dedicate and make debutter in the name and for the worship of my thakoor Sri Sri Jagannathjew the following properties. ...'
7. Thereafter, the will goes on to give the particulars of the immovable properties and Government securities 'and make debutter all the jewels gold and silver ornaments articles. .....' and goes on to give particularsof the said jewels and the silver ornaments and directs preparation of the list by the shebaits and trustees at least once in every five years. Thereafter the will directs that the worship of the Thakur Sri Sri Jagannathjew and other thakoors are to be held except otherwise provided duly in the thakoorbari and further directs that the worship of Sri Sri Radhakant Jew and other thakoors during the pala of the testator or term every third year to be held in the thakoorbari. The testator then directs that the worship of Sri Sri Jagannathjew should be performed at least once in every year in the dallan of the house in which he at that time resided and which he had made debutter. The testator directs the worship of certain other thakoors and periodical celebrations of Lachmee puja and also directed rathajatra and dol to be held on the north of the said house as he had performed. The testator further directs that the dwelling house was to be used for the feeding of Brahmins, for assembly and feeding of his caste men and other persons for parties on the occasion of the various festivals and pujas and the sradhs of his father, mother and his ancestors and that of his wife and other members, for the marriages and other ceremonies of the members of the family. The testator further observed :
'I direct the food to be daily provided for such number of persons as the shebaits or the trustees may think fit but not less at any time than three hundred daily to be distributed amongst the poor people without distinction of creed or caste in the compound of my present house, as I have been in the habit of doing. '
8. The testator directs that in case construction is made, such feeding is to be done at a different convenient place. The testator observes :
'I have a large collection of pictures, statues and works of art in and about my said house these and the furniture and other effects in the outer apartment of my said house I give dedicate and make debutter to the said Thakoor Sri Sri Jagannathjew and direct that the said things shall be kept in order by the shebaits and trustees and used for the purpose of the various festivals, entertainments and parties to be given and held in the said house. I further direct that the shebaits and trustees shall make an inventory of the said articles as soon as may be convenient after my death and the said inventory be compared and verified at least once in every five years. I also direct that the collection of pictures and works of art is to beopen to inspection free of charges on such days and times and under such regulation as may seem proper by the trustees or shebaits for the preservation of the name and for the observance of decency and order, with due regard to other purposes of debutter. I direct the shebaits and trustees of the said thakoorbari if I have not completed the same in my lifetime to lay out the premises which I have purchased to the south and south-west of the said thakoorbari and west of my said dwelling house as a garden and to maintain and keep the same in proper order, the garden is to be known as Nilmoney Nikeetan in memory of father and is to be open at convenient times for the use and recreation of the public subject to regulations to be made by my said shebaits and trustees for the preservation of order and decency and due observance of the trusts of the debutter. I also direct the said shebaits and trustees to keep up a collection of birds and non-carnivorous animals in the said garden and compound of my house which is also subject to such regulation as aforesaid to be open to the public free of charges. I also direct the said shebaits and other trustees should I not build the same in my lifetime to build an additional frontage on the east side of the thakoorbari and make other improvements thereon and also to build a hall or a covered place for the feeding or distributing of food to the poor either separately or in conjunction with any other building.'
9. The testator thereafter provided that for the building a sum not exceeding Rs. 75,000 should be spent. The testator directed that the said shebaits and trustees would be at liberty with their families to occupy convenient rooms in the said debutter house to be allowed to them by the shebaits and trustees for the time being and if the accommodation is not sufficient the testator provided that such additional building as the shebaits or the trustees think fit and proper may be constructed at such sums not exceeding Rs. 75,000. The testator thereafter provided that the trustees or the shebaits were, to collect the income of the whole of the debutter property and out of this they should first pay the Government revenues, taxes, rates and all other outgoings and maintain and keep the said properties including, the thakoorbari and debutter houses and garden in good and proper repairs. Then the testator makes provision for repairing of the old building and for the improvement of the building. Thereafter, the testator provides : 'After making such payments and deductions from the income of the debutter property the shebaits or the trustees are to pay thereout the cost of performing the various worships, pujas and ceremonies set forth in schedule ' A ' hereto in the manner I have been accustomed to perform the same in my lifetime and such other additional acts of worship, Puja, sradhs and ceremonies as my shebaits and trustees shall think necessary, also the cost of feeding the poor to the number of not less than three hundred daily at the discretion of the shebaits and trustees but it is mywish that at the time of famine and scarcity the number of poor to be daily fed shall be increased at the discretion of the shebaits or trustees in the same proportion and the manner as I have been accustomed to increase the number of people fed at such time. The shebaits or trustees shall out of the debutter income continue to pay the same subscription to charitable purposes as I have been accustomed to give but it shall be in the discretion of the shebaits or the trustees to discontinue at any time the subscription to any particular society and pay the amount to any other society or association for any similar purposes or to make additional subscription or donation for charitable purpose or object of public utility or to themselves to distribute money in charity or for charitable objects. The shebaits and trustees shall also out of the debutter income make gift for charitable purposes and pay pension and distribute clothing as they may think having regard to the manner in which I have hereto given for similar object.' Then the testator goes on to make provision for the protection of the property and for employment of servants arid maintenance of sufficient number of carriages and horses for the comfort and convenience of the shebaits. The testator directed that the shebaits and trustees should pay to each of them for the time being who takes part in the performance of the sheba of the deity and the execution of the trust remuneration for their services at Rs. 500 a month or less so that the amount to be paid by way of remuneration to the shebaits should not exceed one-fourth of the total income of the fund at any time. The testator further provides that no shebait and trustee would lose the right to receive the remuneration or to reside in the dwelling house due to incapacity arising from illness and not from unwillingness on his part to perform sheba. Thereafter the testator made provisions for the widows of the other descendants of the testator and those who assist in the work of preparing articles of offerings to the Thakoor and for the feeding and' distribution to the poor. The testator further stated that all the shebaits to be appointed in future and those who assist in the like manner should be fed and clothed and maintained and should receive a sum of Rs. 50 each month from the income of the debutter and should be allowed to reside in the debutter house. The testator further provides that the wives of the eldest and youngest sons of the testator should also work in the like manner and the future wives of the future sons who were also expected to work in the like manner would not receive remuneration during the respective husbands' lifetime as their husbands would be receiving remuneration for working as shebaits. The testator thereafter provides :
'I direct that after defraying all the various sums above directed if there shall be any surplus or if from any of various trusts hereinbefore created or any of the directions hereinbefore contained shall be held to behand become invalid or incapable or being carried into effect such surplus or the moneys provided for the trust or directions if any which may be declared to be invalid or found incapable of being carried into effect shall be appropriated and disbursed by my said shebaits and trustees for charitable purposes for feeding of the poor or distribution amongst the poor and shall not in any way become payable to or divisible amongst any heirs who shall have no claim to any of the portions thereon. I direct that sheba or religious trust hereinbefore created shall not at any time be divisible into palas or shares but the same shall be administered as one entire trust or sheba and the trustees or shebaits are not to be treated as having any separate or individual interest therein. But the sheba or the trust is to be taken as being of a public nature for the continuance of the worship of the said thakoors and for the feeding of the poor and objects of charity and for preserving my and my father's name and not of a private nature for the benefit of my heirs and descendants.'
10. Thereafter, the testator appointed his sons, Sri Dhirendra Nath Mullick and Brojendra Nath Mullick, and his grandson, Sri Birendra Nath Mullick, to be shebaits and trustees of the property which he had made debutter in the name of the said Thakoor Sri Sri Jagannath Jew and carry out the various trusts thereby declared. Thereafter, the testator proceeds to lay down how the future shebaits and trustees are to be appointed. He also made certain provisions about certain other members of his family and directed that their sons and descendants should not be shebaits. Thereafter, the testator observed :
' After payments and providing for the charities aforesaid I direct thatall the residue and remainder of my estate which I have not effectuallydisposed of by this will shall be divided into four equal portions or shares. '
11. And then the testator proceeds to make certain divisions not materialfor the purpose of this reference.
12. Mr. R. C. Deb, learned counsel for the assessee, contended that upon a correct construction of the will read as a whole it would be manifest that all the properties were not given to the deity Sri Sri Jagannath Jew in the sense that all these vested in the deity. Learned counsel urged that the immovable properties specified at pages 12 and 13 of the paper book, as well as Government securities, jewels, gold, etc., mentioned in the will have been vested in the trustees for the purposes of the different trusts mentioned in the will, one of which is the worship, puja and ceremonies of this deity. Therefore, Mr. Deb urged, that the only incomes on which the deity should be assessed would be the value of the benefits the deity received under the will, which Mr. Deb conceded, would also include, apart from expenses for seva, puja, etc., the value of residence of the deity in the temple. Learned counsel submitted that the opening words in a will arenot conclusive--the whole will has to be considered to find out to whom the substantial benefits under the will go. Mr. Deb took us through the various provisions of the will, and submitted that the expression 'debutter properties' used in various places do not militate against the construction that the properties were vested in the trustees for the purpose of debsheba. He submitted that the testator has very carefully chosen the expressions 'trust' and 'trustees' at various places in the will and such expressions have not been used in the broad non-technical sense that shebaits are the trustees but in the technical sense. He specifically drew our attention to the clause appointing trustees to carry out the various trusts. He submitted that it would appear from the will that the trustees were enjoined to spend various sums of moneys for various objects, such as performance of sradh of the testator and his ancestors, maintenance of picture and art gallery, maintenance of a garden known as Nilmoney Nikeetan, feeding of the poor, etc., which are wholly unconnected with debsheba of Sri Sri Jagannath Jew. Mr. Deb drew our attention to the clause which authorised the trustees to perform 'such other additional acts of worship, sradhs and other ceremonies'. Counsel submitted that by this clause discretion was given to the trustees to expand the objects of worship but not to spend more on the assessee-deity. Learned counsel drew our attention to the figures of actual expenditure for the assessment year 1956-57 as appearing at pages 25 to 33 of the paper book and showed that the actual amount spent for the puja expenses of the assessee was Rs. 4,687 while the amounts spent on other objects together with the expenses for maintenance and administration amounted to Rs. 3,82,134.
13. Mr. Deb referred us to the decision of Sridhar Jiu v. Manindra Kumar Mitra : AIR1941Cal272 .. Reliance was placed by learned counsel on the following observation of Ameer Ali J. in the said judgment at page 304 of the report:
'As this matter is so often agitated before me I will, therefore, enumerate the terms which I think it convenient to use in order to keep the various positions clear, and which, so far as possible, I myself retain (i) endowment gift to idol, but owing to peculiar attributes, reflected fiduciary capacity or position in shebait. Property vested in idol; (ii) trust property vested in A for the benefit of B : notwithstanding extraordinary origin in England, exists in India ; (iii) combination of trust and endowment.
An example of such a combination (and what I now have to state is applicable to another important point discussed in this case) is, in my opinion, what we call 'partial debutter'. The normal case of partial debutter is one where the disposer has purported to dispose of property in favour of anidol, but in such a manner as to show an intention of benefiting his family in perpetuity.'
14. His Lordship further observed at page 305 :
'Where I do agree with Mr. Roy is that, notwithstanding that, in my opinion, a Hindu can employ English machinery and, therefore, create a'trust' for the benefit of a deity, the fact that he has used words more or less appropriate to an English trust is not conclusive. It must be a matter of inference on the documents and the facts of each particular case whether the benefactor intended to adopt the one or the other method : ' trust' orendowment.'
15. Learned counsel for the assessee then relied on the decision in the case of Sonatun Bysack v. Smt. Juggotsoondree Dossee,  8 M.I.A 66 (P.C.).. There what had happened was one Ramdas Bysack, a Hindu inhabitant of Dacca, 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 grandsons in succession, but they should enjoy 'the surplus proceeds only 'and the will after, appointing one of the sons as manager to the estate to attend to the festival and ceremonies of the idol directed that 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 the maintenance of the members of the family, whatever net profits and surplus there might be, should be divided annually in certain proportions among the members of the family. At the date of the will the family was joint in estate, food and worship. The accumulations of income were divided as directed by the will. It was held by their Lordships of the Judicial Committee that the bequest to the idol was not an absolute gift, but was to fee construed as a gift to the testator's four sons and their offspring in the main line, as a joint family, so long as the family remained joint, all 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 provision in the will for maintenance. There the Judicial Committee found that, though the will purports to begin with an absolute gift in favour of the idol, it was plain from the other different clauses of the will that the testator did not intend to give the property to the idol absolutely. For the argument, that to find out whether under the will the property was intended to be vested in the idol, the courts should try to find out to whom the substantial benefits under the will would go. Mr. Deb relied on the decision of the Judicial Committee in the 'case of Jadu Nath Singh v. Thakur Sita Ramji,  L.R. 44 I.A. 187; 42 I.C. 225 (P.C.).. Learned counsel for the assesseethen drew our attention to the case of Har Narayan v. Surja Kunwari,  L.R. 48 I.A. 143; A.J.R. 1921 P.C. 20.. There the will provided that the property of the testator 'shall be considered to be the property of a certain idol'. There were, however, further provisions in the will which indicated that the residue after defraying the expenses of the temples should be used by the legal heirs to meet their own expenses and the ceremonies of the idol to be performed were also fixed by the will and it was found that that would absorb only a small proportion of the total income. These were considered to be indications which showed that the intention was that the heirs should take the property subject to a charge for the performance of the religious purposes named. The Judicial Committee was of the opinion that there was no fixed rule depending upon the use of particular terms of the will for the determination of the question whether the will of this nature save the testator's estate to an idol subject to a charge in favour of the heirs of the testator or made the gift to the idol a charge upon the estate. The question depended upon the construction of the will as a whole. In those circumstances Mr. Deb contended that the question No. 1 referred at the instance of the assessee should be answered by us in the negative.
16. Mr. Deb thereupon relied on the decisions of the cases of Bejoy Singh Dudhuria (Raja) v. Commissioner of Income-tax,  1 I.T.R. 135 (P.C.)., Commissioner of Income-tax v. Sitaldas Tirathdas, : 41ITR367(SC) ., Murlidhar Himatsingka v. Commissioner of Income-tax : 62ITR323(SC) ., and contended that in the facts and circumstances of this case, if the answer to the question No. 1 mentioned hereinbefore was in the affirmative then on the. construction of the will the question No. 2 should be answered in the negative. Learned counsel submitted that the expenses for the purposes mentioned in question No. 2 was of such a nature that it resulted in diversion of the income before it reached the assessee. In view of the provisions of the will, learned counsel submitted that both the questions Nos. 1 & 2 referred at the instance of the Commissioner of Income-tax should also be answered in the affirmative.
17. Mr. B. L. Pal, learned counsel for the revenue, contended that on a proper construction of the will it was manifest that the properties were vested in the deity and the deity was the owner of the properties. Mr. Pal drew our attention to, what was described by him, as clear and unambigous expression of intention, in the opening lines of the will, where the testator had stated that he dedicated and made debutter of his properties as well to the sentence where the testator stated that he gave and made debutter of his properties in the name and for the worship of the Thakoor being the assessee herein. Mr. Pal submitted that throughout the will the testatorhad used the expression 'debutter' properties, which according to him indicated a clear intention to make the properties of the idol. According to the learned counsel for the revenue the provisions for remuneration of the shebaits and the maintenance of the shebaits are normal incidents in a case where property is vested in the deity. Counsel submitted that, as under the Hindu law such idol, being juristic person, held the property without a human ministrant to administer it, it would be proper to make a provision for the shebaits such as remuneration, residence, etc. That according to learned counsel did not in any way detract from vesting all the properties in the idol. Learned counsel laid great emphasis on the fact that in the will the remuneration of the shebaits have been provided for acting as shebaits and not remuneration as heirs. Learned counsel further urged that making ancillary provisions which are of charitable and religious nature, such as feeding the poor, provision for sradhs of testator, his ancestor and the members of his family are also often associated with the vesting of the properties in the idol. Mr. Pal submitted that in a case like this the expression 'trustee' has not been used in any technical sense as it is used in the English law. Performance of the obligation by a shebait is in the nature of a trust, though not in a technical sense. Direction for the performance of these duties by the shebaits in the will do not convey an intention either to constitute trust in the technical sense of the term in which it is used in English law or convey an intention not to vest the property in the idol in the ideal sense in which according to the concept of Hindu law a deity is capable of holding property. Mr. Pal submitted that the main thing to consider is whether the surplus of any portion of the income given to the deity or intended to be given to the deity, has been reserved either for the testator or his descendants, or for any object not allied to the object of debsheba. If there was no such reservation of surplus, learned counsel submits, and where clear language has been used by the testator as mentioned hereinbefore, we must hold that the entire property was conveyed to the deity. Mr. Pal submitted that the provisions which gave the trustees liberty to do such other additional acts of worship, puja and sradhs and ceremonies indicate that the trustees were entitled to spend more on the objects of the debsheba of the assessee. Mr. Pal relied on the decision of the Supreme Court in the case of Nirmala Bala Ghose v. Balai Chand Ghose, : 3SCR550 .. There the Supreme Court had held that the question whether a deed of dedication creates an absolute or partial dedication must be settled by a conspectus of all the provisions of the deed. It was further held that if the property was wholly dedicated to the worship of the idol and no beneficial interest was reserved to the settlor, his descendants or other persons, the dedication would be complete. If by the deedhowever, it was intended to create a charge in favour of the deity and the residue vested in the settlor, the dedication would be partial. The Supreme Court was of the opinion that a reasonable provision for remuneration, maintenance and residence of the shebaits does not make an endowment bad for even when property is dedicated absolutely to an idol and no benefit is reserved to the settlor the property is held by the deity in an ideal sense. The possession and management of the property must in the very nature of things be entrusted to the shebait or manager and nomination of the settlor himself and his heirs with reasonable remuneration out of the endowed properties with right of residence in the property will not invalidate the endowment. The Supreme Court was further of the view that there was no rule which stipulated that when income was expanding and the expenses were static, leaving a substantial residue, it must be presumed notwithstanding the comprehensive and unrestricted nature of language to create only a charge in favour of the deity. The question was always, the Supreme Court was of the opinion, one of intention of the settlor to be determined from a review of all the dispositions under the deed of settlement. In the case before the Supreme Court, in the deed, which their Lordships were considering, there was the following statement:
' I dedicate the abovementioned two properties more fully described in the schedule below in order that the daily and periodical sheba, etc., of the said Sri Sri Gopal Thakur installed by my husband may go on regularly. From this date the said two properties, become the debutter properties of the said deity Sri Sri Gopal Jew Thakur .... becomes the full owner of the said two properties.'
18. The deed contained directions for meeting the expenses of the worship of the deity, and it gave detailed direction with regard to the succession of the shebaitship. It provided that the sheba was to be carried on in the manner it was done before and then there were provisions for the remuneration of the shebaits. There were provisions for the devolution of the office of the shebaits. The deed then directed that the surplus amount remaining after meeting the cost of worship should be accumulated. The deed then provided for the residence of the shebaits and in cases of shebaits dying provisions were made for the widows of the shebaits. The suits were instituted by one Balai raising the plea that the deed was a mere colourable document and was never acted upon. The only question that was urged before the Supreme Court was whether the deed was partial or complete. In those circumstances the Supreme Court held as mentioned hereinbefore. The Supreme Court observed at page 561 of the report:
'It is inexpedient to construe the terms of one deed by reference to the terms of another, or to lay down general rules applicable to the construction of settlements varying in terms. In construing a deed, the courthas to ascertain the intention of the settlor, and for that purpose to take into consideration all the terms thereof.'
19. Reliance was also placed by Mr. Pal on 1he decision of the Calcutta High Court in the case of Official Trustee of West Bengal v. Commissioner of Income-tax : 67ITR218(Cal) ., where it was observed by Sinha J. (as his Lordship then was) that under the Hindu law, endowments for religious purposes may be made either by executing a trust in the technical sense, that is to say, by transferring properties to the trustees in trust for a deity or there may be a dedication to the deity where the dedicator divested himself of his properties for religious purposes in favour of the deity or for other religious and charitable purposes. Dedication is a trust in a general sense. Reliance was placed by Mr. Pal on this decision for the argument that the expression 'trustee' in a will of this nature did not always betray an intention to create a trust in the technical sense. Mr. Pal drew our attention to the decision in the case of Surendra Keshub Roy v. Doorgasoonderi Dossee,  L.R. 19 I.A. 108; I.L.R. 19 Cal. 513 (P.C.).. He also drew our attention to the decision in the case of Iswar Bhubaneswari Thakurani v. Brojo Nath Dey .. In that case Lord Macmillan, delivering the judgment on behalf of the Judicial Committee, at page 211, observed, after quoting the observation from the decision in the case of Har Narayan v. Surja Kunwari:
'It is also of importance to consider the extent of the property alleged to be dedicated in relation to the expense to be incurred and the ceremonies to be observed in the worship of the idol. The purposes of the dedication may be directed to expand as the income increases, or the purposes may be prescribed in limiting terms so that if the income increases beyond what is required for the fulfilment of these purposes it may not be protected by the dedication. '
20. Mr. Pal submitted that the cases relied on by Mr, Deb were not applicable to the facts of this case. According to him the main basis of some of these decisions relied on by Mr. Deb was that the surplus went for the enjoyment of members of the family of the testator. Here that was not the case, according to learned counsel for the revenue. In these circumstances, Mr. Pal submitted that the question No. 1 referred to this court at the instance of the assessee must be answered in the affirmative.
21. Mr. Pal then submitted that the question No. 2 referred to this court at the instance of the assessee should also be answered in the affirmative. He also relied on the several decisions referred to by Mr. Deb on this aspect of this question and urged that for the purpose of considering deletion from the income of the assessee on the theory of diversion, the following considerations are material:
(a) Is there any provision conferring any title to some one other than the assessee ?
(b) Is that title of the other person superior to that of the assessee ?
(c) Has the assessee no control over the money
22. It was urged that if there was no such superior title created but the income becomes the income of the assessee and thereafter the assessee has an obligation to spend certain amount for the benefit of certain objects or of a third party that would merely be an application of the income of the assessee. In those circumstances there cannot be any question of diversion of income of the assessee. Mr. Pal, apart from relying on the cases to which reliance was made by Mr. Deb, referred us to the decision in the case of P. C. Mullick (Executor) v. Commissioner of Income-tax,  6 I.T.R. 206 (P.C.).. There a testator had by his will appointed the assessees his executors and had directed them to pay Rs. 10,000 out of the income of his property on the occasion of his addya sradh for expenses in connection therewith to the persons, who were entitled to perform the sradh. He had also directed them to pay out of the income of his property the cost of taking out probate of his will. During the year of account the executors had paid Rs. 5,537 for expenses in connection with the addya sradh and a sum of Rs. 1,25,000 for probate duty. After considering the decision in the case of Raja Bejoy Singh Dudhuria, the Judicial Committee held that the payments made for the sradh expenses and the costs of probate could not be excluded in computing the chargeable income. These were held to be payments made out of the income of the estate coming into the hands of the assessee. Mr. Pal submitted that in view of the provisions made in the will question No. 2 must be answered in the affirmative.
23. Mr. Pal then contended that in view of the language of the proviso to Section 4(3) of the Indian Income-tax Act, 1922, the surplus income to be exempted from taxation must actually enure or be applied for the benefit of the public and unless there is application of the income which satisfies the proviso these sums could not be exempted. Mr. Pal therefore submitted that the question No. I referred at the instance of the Commissioner of Income-tax should be answered in the negative. Adopting the submissions made on question No. 2 of the assessee, in view of the provisions of the will, learned counsel for the revenue also submitted that the question No. 2 referred at the instance of the Commissioner of Income-tax should also be answered in the negative.
24. In construing provisions of a document oi the type we are concerned, it appears from the judicial decisions and authorities that the' following principles should be followed :
(a) In construing a deed the opening words by themselves of the deed are not conclusive, the deed as a whole has to be construed to find out whether it was intended that the property would vest in the idol.
(b) The answer to the question, to whom do substantial benefits of the property under the deed go, may in certain circumstances be an important, relevant and guiding factor in construing the intention.
(c) Where the expenses for the purposes of the idol are prescribed in limiting the terms so that in case the income increases or is available beyond what is required for the purposes of the idol, the disposal of the surplus may be a factor which would indicate that the property was not intended to be vested in the idol.
(d) There is however no fixed rule that, when income was expanding and the expenses were static, leaving a residue, it must be presumed, notwithstanding the comprehensive language, that the deed was intended only to create a charge in favour of the deity. In all cases it is necessary to find out the intention from the whole deed.
(e) There is no fixed rule of construction depending upon the use of any particular terms.
(f) If the property is wholly dedicated, to the worship of the idol and no beneficial interest is reserved to the settlor, his descendants or other persons the dedication is complete but if in the deed it is found that there is only a charge in favour of the deity and beneficial interest is reserved either to the settlor, his descendants or to other persons or objects the dedication is partial.
(g) The provisions for remuneration or maintenance and residence of the shebaits are not factors indicating that the property was not intended to be vested in the idol.
(h) A property may be given to the deity either by creating a trust in the technical sense of the term or by dedication to the deity and vesting the property in the idol.
(i) The expression 'trust' is often used in general sense and when shebaits are enjoined to perform certain functions in relation to the deity they also discharge duties in the nature of trust.
(j) The use of the expression 'trust' or 'trustees ' is neither conclusive nor indicative whether the property was vested in the deity or not,
25. Bearing the above principles in mind we have to examine the instant will in question. In the opening words of the will there is undoubtedly the use of expressions such as 'I hereby dedicate and make debutter', ' I hereby give, dedicate and make debutter in the name and for the worship of my Thakoor Sri Sri Jagannathjew'. These expressions along with the use of the expression of 'debutter properties' in several places in the will indicate an intention of vesting the properties in the idol. But thetestator has all along very carefully used the expression 'shebait' along with ' trustee '. Reading the will as a whole, it appears to us, that the trustees were enjoined to do the various acts of worship and ceremonies in the manner the testator had been accustomed to do. In the schedule 'A' to the will various acts of worship and ceremonies have been mentioned. The power and authority given to the shebaits and trustees to perform additional acts of worship, puja, sradhs and ceremonies, is not necessarily directed to the additional acts of worship of the assessee deity. It is more an indication of the authority to expand the objects of the trust and not of the authority to spend more on the worship of the assessee deity; trustees are obliged to maintain an art gallary for pictures, statues and works of art. This may be a charitable object but not ancillary to the debsheba of the assessee deity. Trustees and shebaits are also obliged to maintain a garden for perpetuating the memory of the father of the testator. These objects are not necessarily associated with the debsheba of the assessee deity. Distribution of food to the poor, even though it is not the distribution of the offerings made to the idol, is associated with debsheba. To a true Hindu ' Daridra Narayan Sheba' is often considered on the same footing with the worship of the deity--the same motivation often impels both. The provision for the maintenance and residence of the shebaits is also consistent with vesting of the properties in the idol. But reading the entire will, for the reasons mentioned hereinbefore, it appears to us that expenses for the purposes of the idol have been prescribed in the will, more or less in limiting terms, and a large income is available beyond what is required for the purposes of the idol. Substantial benefits under the will go to objects, other than those of the idol or objects not necessarily associated with the sheba of the deity. Even though there has been no reservation of any beneficial interest either to the settlor or his descendants, there has been reservation of the beneficial interests in favour of objects other than those of the idol. In this context it is necessary to examine in what sense the expressions 'trust' or 'trustee ' have been used. The testator has given directions for sheba or religious trust created by him, but states clearly that the trustees or the shebaits would have no individual interest in the trust. Inasmuch as shebaitship is a property with certain incidents of property, this provision is more indicative of the fact that the expression 'trust' and ' trustee ' have been used in technical sense. The testator specifically appoints trustees of the properties dedicated. Thereafter the testator statts that when a new trustee or shebait is appointed he should on taking up the appointment of a shebait and trustee sign a declaration in writing that he is a follower of Hindu religion ' and will faithfully perform the duties of a shebait and trustee and carry out the trusts of the will....' In these circumstances, reading the will as a whole we areof 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 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 question No. 1 is therefore answered in the negative with the addition that the beneficial interest of the deity would include the value of the right of residence of the deity in the Thakoorbaree.
26. In view of the fact that the answer to the question No. 1, referred at the instance of the assessee, has been in the negative, question No. 2 does not arise. However, inasmuch as the point has been argued, we would record that if our answer to the question No. 1 was in the affirmative, then we would have accepted the submissions made on this aspect of this matter by Mr. B. L. Pal, counsel for the revenue, in view of the nature of obligations created by the will and in view of the judgment of the Judicial Committee in the case of P.C. Mullick (Executor) v. Commissioner of Income-tax and the decision of the Supreme Court in the case of Commissioner of Income-tax v. Sitaldas Tirathadas. In the event of our answering the question No. 1 in the affirmative we would therefore have answered this question in the affirmative, had it been necessary for us to do so.
27. In view of our answer to the question No. 1 referred at the instance ofthe assessee, the question No. 1 referred at the instance of the Commissionerof Income-tax also does not arise. On this aspect of the matter we hadnot been able to appreciate the arguments advanced on behalf of therevenue. The Tribunal had allowed the amounts which were held forcharitable purposes, i.e., for the feeding of the poor and for the distributionamongst the poor on the ground that these surpluses were properly heldunder a trust for charitable purpose and was, therefore, exempt under Section 4(3)(i) of the Indian Income-tax Act, 1922. It was urged that thefact that the surplus moneys were held for the charitable purposes were notsufficient, and they must be so applied as such towards charitable purpose.It does not seem that this contention was raised before the Tribunal, thatthese amounts were not applied during the relevant accounting year for thepurposes for which they were held. Therefore, in the facts and circumstances of this case, we would not be justified in allowing counsel for therevenue to urge that this surplus income was not either accumulated orapplied for religious or charitable purposes. In that view of the matter,had it been necessary for us, we would have answered the question No. 1referred at the instance of the Commissioner in the affirmative. But asmentioned hereinbefore this question does not arise in view of our answeron the construction of the will.
28. In the view we have taken on the construction of the will and in view of our answer to question No. 1 referred at the instance of the assessee, question No. 2 referred at the instance of the Commissioner of Income-tax does not arise and need not be answered. Had it been however necessary for us to do so, for the same reasons as we have mentioned in dealing with question No. 2 referred at the instance of the assessee, we would have answered the question No. 2 referred at the instance of the Commissioner in the negative.
29. In the facts and circumstances of this case, each party will pay andbear its own costs of the reference.
Sankar Prasad Mitra, J.
30. I agree.