Sankar Prasad Mitra, J.
1. This is a reference under Section 66(1) of the Indian Income-tax Act, 1922. The assessment years are 1951-52, 1952-53, 1953-54, 1954-55 and 1955-56. By an indenture dated the 7th June, 1926. Sambhu Nath Sen, who is described as the donor, made a disposition of certain properties, both movable, and immovable, valued at Rs. 3,06,500. He dedicated the properties to his family deity 'Sri Radha Govinda Jew' who had been installed and consecrated at premises No. 3, Amherst Street, Calcutta, the residence of the donor.
2. The Income-tax Officer made assessments for the assessment years 1951-52, 1952-53 and 1953-54 in respect of the bona fide annual value of the immovable properties covered by the indenture in the hands of Messrs. N. C. Sen and B. C. Sen as ' trustees to the debuttar estate, Sri Sri Radha Govinda Jew ', in the status of an individual. For the assessment years 1954-55 and 1955-56 the assessments were made in the status of an association of persons.
3. Before the Appellate Assistant Commissioner, it was contended that the properties had been dedicated to the deities and, as such, the income therefrom was exempt from taxation, and, in any event, the two deities, namely, Radha and Govinda, and not the trustees, should have been assessed individually. The Appellate Assistant Commissioner was of the view that upon construction of the terms of the indenture it was clear that the properties had been transferred to the trustees who became the legal owners thereof and the income of such properties was, therefore assessable in their hands under Section 9 of the Indian Income-tax Act. The Appellate Assistant Commissioner directed, however, that the assessment on the trustees should be made in the status of an association of persons.
4. With regard to premises No. 3, Amherst Street, Calcutta, the contention before the Appellate Assistant Commissioner was that the income thereof should be excluded from assessment. It was stated that the settlor had given this house, free of rent for the residence of the shebaits and the indenture contained an injunction restraining the letting out of the property to tenants at all. In these premises, it was submitted before the Appellate Assistant Commissioner that premises No. 3, Amherst Street, Calcutta, had no letting value. The Appellate Assistant Commissioner rejected these contentions.
5. When the matter came to the Appellate Tribunal the applicant's contention was that under the terms of the indenture, dated the 7th June, 1926, there was an absolute dedication to the deities, Radha and Govinda, who were the legal owners of the properties and not the trustees The assessments on the trustees, therefore, should be vacated. So far as the house at No. 3, Amherst Street, is concerned, it was argued that its income should not be included on the basis of the bona fide annual value in view of the injunction against induction of tenants.
6. The Tribunal was of opinion that the deed of 1926 created a legal trust vesting the properties absolutely in the trustees for the benefit of the deities. The Tribunal did not uphold the contention that properties were transferred to the deities, namely, Radha and Govinda, and the trustees were merely the shebaits or managers of the deities. According to the Tribunal, under the deed the properties had been dedicated to the deities only in the sense of conferring the beneficial interest on the deities and there was no gift or conveyance directly to the idols. The Tribunal concluded that the trustees had been rightly assessed under Section 9.
7. With respect to premises No. 3, Amherst Street, the Tribunal found that a portion of the house had already been let out to tenants before the execution of the deed and the remainder of the house in terms of the deed was to be used exclusively for the worship of the deities but the shebaits were permitted to live therein with their families. The Tribunal stated that the assessee's contention that the house could not be let out at all to tenants was contrary to facts. The deed expressly authorised the trustees to let out such portions of the house in future to tenants upon such rents and conditions as the trustees might think fit. The only restriction was that the period of tenancy should not exceed three years at a time. The Tribunal also found that even with regard to the other portions of the house used for the purpose of worship of the deities and for residence of the shebaits and their families, the income-tax authorities were justified in assessing the bona fide annual value under Section 9. The Tribunal dismissed the appeal.
8. The following questions of law have been referred to this court:
'(1) Whether, on the facts and in the circumstances of the case, and on a proper construction of the terms of the trust deed, dated the 7th June 1926, the Tribunal was right in holding that by the said deed there was a transfer of property directly to the trustees ?
(2) Whether, on the facts and in the circumstances of the case, and on a proper construction of the terms of the trust deed of 1926, the trustees were rightly assessed under Section 9 of the Indian Income-tax Act, 1922 ?
(3) Whether, on the facts and in the circumstances of the case, the bona fide annual value of the house at No. 3, Amherst Street, Calcutta, was rightly included in the assessment of the trustees ?'
Mr. P. K. Pal, learned counsel for the assessees, has argued before us that in Hindu law the dedication to a deity is nothing but an expression of the pious purpose for which the dedication is' designed. If, therefore, there is a clear and unequivocal manifestation of intention to dedicate and a formal divesting of ownership in the property on the part of the donor the dedication must be deemed to be complete. Secondly, in cases of dedication no acceptance by the deity is involved. An unequivocal dedication by itself makes the deity the owner of the property as well as of the income from the property.
9. In support of these propositions Mr. P, K. Pal has referred to various passages in B. K. Mukherjea's Hindu Law on Religious and Charitable Trusts, 3rd edition, at pages 80 and 81, and various other cases which have followed the principles discussed therein.
10. Mr. Balai Pal, counsel for the department, has not disputed these principles but he says that they do not apply to the facts of the instant reference.
11. The second contention of Mr. P. K. Pal is that if in a deed an earlier clause is followed by a later clause which destroys the obligations created by the earlier clause the later clause should be rejected as repugnant to the earlier clause. Counsel for the assessees has referred us to Forbes v. Git, (1)  1 A.C. 256 (P.C.). It is argued that in the indenture dated the 7th June, 1926, at page 7, the settlor has said :
'And this indenture also witnesseth that in further pursuance of thesaid recited desire of the said donor and with a view to give effect theretothe said donor doth hereby irrevocably and for ever and in perpetuitydedicate to the said deities or thakurs Sree Sree Iswar Radha Govinda Jewall and singular the said messages lands hereditaments and premises mentioned and described in Part I of the said Schedule 'A' heretoannexed . . . . '
Then in line 39, at page 7, the settlor goes on to say :
' And this indenture witnesseth that in further pursuance of the saiddesire and with a view to give effect to the same he the said donor uponthe acceptance of the said trustees and in consideration of the premises doth hereby grant transfer, assign and assure unto the said trustees as aforesaid firstly All Those several messuages tenements or dwelling houses lands hereditaments and premises particularly mentioned and described . . . . '
Mr. P.K. Pal's contention is that in the first clause quoted above there is irrevocable and unequivocal dedication to the deities and in the second clause quoted above the settlor is seeking to transfer the properties to the trustees. The second clause is repugnant to the first clause and the first clause will prevail. In other words, by this deed the deities and not the trustees became the owners of the properties and the respective incomes thereof. And the second clause should be treated as void.
12. The last submission of Mr. P. K. Pal is that with respect to premises No. 3, Amherst Street, there were restrictions on letting out of some of the portions thereof and Section 9 of the Indian Income-tax Act should not be made applicable to those portions.
13. We are unable to accept the arguments advanced on behalf of the assessees in this reference. It seems to us that the indenture dated the 7th June, 1926, should be construed as a whole. The intention of the settlor is the guiding factor, and that intention has to be gathered from consideration or by conspectus of the entire provisions of the document. In the recitals to the deed the settlor says :
' Whereas the said donor is desirous of dedicating the said properties mentioned and described and set forth in Parts I, II and III of the said Schedule ' A ' hereto annexed to the said idols or thakurs upon the trusts and for the purposes hereinafter declared and expressed of and concerning the same ...'
Then the donor says :
' In order to give effect to such dedication, he is desirous of appointing the said trustees and the person or persons appointed by the said donor by these presents or to be appointed by the said trustees or any of them by deed or deeds as hereinafter mentioned to be the trustees .. . . for the purposes hereinafter mentioned and declared and of making such provisions as are hereinafter contained for the constitution and perpetual continuance of the shebaitship of the said thakurs and for the performance and observance of the sheva or worship of the said thakurs, for ever and whereas the said trustees have consented to become the first trustees as aforesaid ... '
From these recitals, it is clear that the settlor's intention was to dedicate certain properties to certain deities, and in order to give effect to that dedication he was appointing trustees and shebaits. It appears further that the trustees had accepted the trusts and obligations conferred on them. Now 'trust' has been defined in the Trusts Act, 1882, as ;
' An obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner. '
Section 6 of the Trusts Act provides for 'creation of trust '. It lays down :
Subject to the provisions of Section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts-
(a) an intention on his part to create thereby a trust,
(b) the purpose of the trust,
(c) the beneficiary, and
(d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee. '
Section 5 prescribes:
'No trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee. '
In our case there is a non-testamentary instrument in writing signed by the author of the trust which has been registered. This instrument declares the executant's intention to create a trust thereby. The purpose of the trust is dedication of properties to certain deities and objects connected therewith. The beneficiaries are the deities. The trust properties have been specifically mentioned and these properties have been expressly transferred to the trustees. When we go through the document we find that the settlor has all along maintained a distinction between the English concept of trust which is embodied specially in sections 3 and 6 of the Trusts Act and the normal Hindu shebaitship. Upon construction of this document, therefore, we cannot but hold that under its provisions it is thetrustees who became the owners of the properties. We do not think thatthe Privy Council's decision in Forbes v. Git is of any assistance to theassessees. In that case the appellant contracted with the respondents to carry out work in altering the respondent's restaurant. The contract by its first clause witnessed that in consideration of $3,000 payable by three instalments, the appellant agreed to furnish the materials and performed the services stated in the contract. Details of the work followed, and there was a final clause to the effect that the respondents were to pay to the appellant the value of the materials provided and labour done, each at 121/2% over cost, whether that value exceeded or was less than $3,000. The materials and labour considerably exceeded that sum, and the appellant used for a balance based upon the final clause. The Judicial Committee held that the appellant was entitled to recover on that basis, since the first clause did not necessarily mean that the contract price was to be $3,000 and there was, therefore, no repugnancy between it and the final clause so as to make the first clause prevail. This decision of the Privy Council might have helped the assessees before us if we could find from the terms of the indenture that there was first a dedication to the deities and then a transference of properties to the trustees, but reading the document as a whole we find that the settlor had no intention of making the deities owners of the properties at all.
14. As regards the portion of premises No. 3, Amherst Street, with restrictions on powers to let out, it seems that the matter has been concluded bytwo decisions of this court. In Commissioner of Income-tax v. Biman BehariShaw Shebait,  68 I.T.R. 815 (Cal) it has been held that even though a property is not let outand does not produce any income, the Income-tax Officer is to proceed onthe basis of a notional income which the property might reasonably beexpected to yield from year to year and include such notional income inthe annual income of the owner. The letting value of a property, whetherlet or not, can be objectively ascertained on a reasonable basis. While anyrestrictions in a will or deed of dedication on the letting of the propertymay reduce the letting value, it cannot be said that because of the restrictions, there can be no annual income which can be deemed to arise from theproperty. The judgment was delivered by Banerjee J. and my learnedbrother was a party to that judgment. This judgment was followed by mesitting with Sabyasachi Mukharji J. in Commissioner of Income-tax v.Ganga Properties Ltd., : 77ITR637(Cal) . There, under an oral agreement dated March 21,1956, the assessee agreed to sell a property to another person and in accordance with this agreement delivery of possession was given to the purchaseron March 29, 1956. The purchaser paid the whole of the considerationmoney on the 16th April, 1956, and this amount was credited in theassessee's books in the suspense account. An agreement for sale was drawnup on April 28, 1956. The deed of conveyance transferring the propertywas executed only on the 17th March, 1958, and was registered on the8th July, 195B. The Income-tax Officer held that ownership was nottransferred until registration of the deed of conveyance. And during theaccounting year in question the ownership remained vested in the assessee.He, accordingly, included the property's bona fide annual value in theassessee's total income. The Appellate Assistant Commissioner was also ofthe same view. The Tribunal, however, was of opinion that though theassessee remained the legal owner, the beneficial ownership passed to thepurchaser on the 29th March, 1956, and that under Section 9 of the IndianIncome-tax Act, 1922, the income from the property was assessable in the hands of the beneficial owner, that is, the purchaser, and not the assessee. This court has held :
(i) that in the case of a sale of immovable property a registered document is necessary to give effect to the sale and the sale takes effect only from the date of execution of the document;
(ii) in Indian law beneficial ownership is unknown; there is but one owner, namely, the legal owner, both in respect of vendor and purchaser, and trustee and cestui que trust; and
(iii) the expression ' income from property ' used in sections 6 and 9 of the Indian Income-tax Act, 1922, refers to the income of the legal owner of the property and he is the only person assessable to tax on the basis of the bona fide annual value thereof. '
At page 647 of the judgment, we have said:
'Then, it is well-known that under Section 9 of the Indian Income-tax Act, 1922, the tax is payable by an assessee in respect of the bona fide annual value of the property irrespective of the question whether he received that value or not. The income from property is an artificially defined income and the liability arises from the fact that the assessee is the owner of the property. The liability does not depend on the power of the owner to let out the property as it also does not depend on the capacity of the owner to receive the bona fide annual value.'
In view of these two decisions of this court it is idle for the assessee to contend that the restrictions, if any, on the letting out of certain portions of premises No. 3, Amherst Street, take those portions out of the purview of Section 9 of the Indian Income-tax Act, 1922.
15. Our answers to the questions referred to us are all in the affirmative and in favour of the department. The applicants will pay to the respondents the costs of this reference.
K.L. Roy, J.
16. I agree.