SINHA J. - This is a reference under section 66 (1) of the Income-tax Act, 1922 (hereinafter referred to as the 'said Act'), which arose out of nine applications in respect of assessments of the applicant, the Official Trustee of West Bengal, as trustee of the trust estate of Chitra Dassi, for the assessment years 1943-44 to 1951-52. In all these nine assessments, the matter went up to the Appellate tribunal and applications were made for referring certain questions to the High Court. The Tribunal referred three questions which are set out in paragraph 13 of the 'statement of the case', set out at page 5 of the main paper-book. These questions, having come up before a Bench of this court presided over by G. K. Mitter J., the questions were reframed and a supplementary statement of the case has now been filed by the Tribunal. The facts in this case are stated to be as follows : One Smt. Chitra Dassi had five sons. She was the owner of certain lands situated at Sinduriaputty Hoozoor Bagan in the city of Calcutta. By an ekrarnama dated 25th May, 1820 (1st Baisakh, 1213 B. S.) the said Smt. Chitra Dassi made a gift of a piece of land of the area of three bighas and ten cottahs enjoined upon her five sons to build, at their own cost, two houses to be styled Suddarbatty, 'for Jatra Mahutshab of Sree Sree Ishwar and Sree Ishwari Thakur Batty for the constant Sheva.' The deed stated that Sree Sree Ishwar Jew would for ever remain in the Suddarbatty and Thakurbatty. The relevant recital in the deed is as follows :
'I make a gift with stipulation of the whole of my purchased lands of Sinduriaputty Hoozoori Bagan in the city of Calcutta. It is my wish to display the image of Sree Sree Ishwar for that purpose I have given (dedicated) as debutter the first parcel of the above-mentioned lands (extending) from the eastern edge of the (East India) Companys Road and amounting to 3-10-0 three bighas and ten cottahs more or less upon that land there shall be built those two houses Suddarbatty (house) for Jatra Mahutshab of Sree Sree Ishwar and Sree Ishwari Thakur Batty for the constant Sheva.'
The Suddarbatty when completed was to form part of a debutter estate and the deed recited that none of the five sons of the executant nor their heirs shall have therein any rights or interest of their own, and further that it would not be the subject of partition between them inter se. The executant only permitted her children, after her death, to remain in possession of the said premises 'being engaged in the performance of the Sheva service of worship of Sree Sree Ishwar.' The sons were not only to build the two mahals at their own expense but they were to carry on the Sheva at their own cost. They were to pay the rents and taxes out of their packet. The property could not be alienated to any one outside the family and neither the Dev Sheva could be carried out nor possession of the property held by any one except the heirs of the settlor who belonged to the same Gotra. Even persons of another Gotra would have no concern with the same. By a second document described as the 'postcript', the settlor dedicated one more cottah of land and added it to the debutter estate created by the earlier deed of 1820. Although in the earlier deed, two buildings were contemplated by the postscript, it was laid down that only one building, namely, one large Suddarbatty should be built. Between the dates of these two deeds, Smt. Chitra Dassi established the idol of Sri Radhagobind Jew and installed it in the house known as 'Bhaghut Shaha and Lalloo Mullick Wallah Batty.' This was the residential house and the idol is still located and worshipped there. The sons by their agreement dated 21st August, 1827 (6th Bhadra, 1234), confirmed the agreements of 1820 and 1822. On or about the 16th February 1830 (6th Falgoon, 1236), the five sons and their mother executed a document of partition and release. It was, inter alia, recited therein that the land dedicated by Smt. Chitra Dassi for building the Suddarbatty for idols worship, etc., of Sree Radhagobind Jew was not liable to partition and the gold ornaments, jewelleries, etc., and the furniture given to by the sons to the said deity were also not to be partitioned and that during her lifetime the mother would manage the debutter estate. On the 8th December, 1842, the said Smt. Chitra Dassi executed her last will and testament whereby she appointed her four sons, Cossinath, Lokenath, Hurronath and Taranath as the executors. In the will she referred to the fact of having already made the Suddarbatty and the land on which it stood, debutter. She made further debutter in respect of the Bhaghut Shaha and Lalloo Mullick property and directed the executors top perform the daily service of the Shri. Radhagobind Jew from the rents and profits of the property. She also gave Rs. 10,000 for the purpose of the construction of Suddarbatty. The following passage occurred in the said will :
'The Suddarbatty in the place Sindooriaputty in land together with the building heretofore I had made debutter now once appertaining to Bhaghut Shaha and Lalloo Mullick together with the buildings the land and house and Shib Shae Bhucketwallah land and house and Dwims Garden Land appurtenances and the land Soortee Bagan these four parcels for the love of my established Sree Sree Radhagobind Jew I hereby make debutter out of these four parcels of land from the first out of the proceeds of three of the parcels of the land you will perform the daily casual services to my established Sree Ishwar Radhagobind Jew.'
On the 29th October, 1855, Smt. Chitra Dassi died. The sons continued to act as Shebaits and continued to be in possession of the debutter estate but troubles arose subsequently with the management of the property. A suit was filed in this court in 1876, being Suit No. 442 of 1876 (Bollye Chand Mullick v. Sreemutty Rangunmoney Dossee, alleging that the Sheva of the deity was not properly carried out and the terms of the trust have not been implemented and various acts of commissions and omissions were charged and it was prayed that the trust should be administered by the court and a scheme prepared and for other reliefs. It is significant to note, however, that the suit was not filed on the footing of a public trust or under section 92 of the Civil Procedure Code. Since the suit was filed, various applications were made from time to time and a number of orders made. The first order appears to have been made by Macpherson J. on the 6th August, 1877. It appears from a copy of the order, which is set out at pages 23 to 29 of the main paper-book, that the matter came up before the learned judge for settlement of issues. The learned judge laboriously tried to discover the facts and his opinion the matter should have been disposed of amicably, as the trust estate could not afford to spend money on litigation. Amongst other things, he found that the Suddarbatty had not yet been completed. Amongst other things, he found that the Suddarbatty had not yet been completed. According to the learned judge, the best scheme would have been to sell the Suddarbatty or repair it or let it out to tenants to produce income in order to carry out the purposes of the trust. It appears, however, that all the parties were not agreeable to adopt this course and the learned judge had to settle the issues and set down the matter for hearing. It may be noticed, however, that in his order the learned judge has held that there was a 'deduction' to the idol Radhagobind Jew by Smt. Chitra Dassi. He also used the words 'trust' and 'trustee' and held that the property was subject to a trust and that the sons of the settlor were trustees. It must, however, be pointed out that the learned judge was coming to this conclusion merely on the pleadings, as at this stage no evidence had been taken. On or about 4th December, 1878, a preliminary decree was passed by Pontifex J. It was declared that the property was dedicated to Sri Sri Radhagobind Jew and directions were given regards the palas. The Official receiver of this court was appointed receiver. From time to time directions were given to the official receiver. On 21st July, 1884, the final decree was passed. On 5th September, 1929, a scheme of administration was framed by C. C. Ghosh J. On 9th September, 1929, Panckridge J. discharged the official receiver and appointed the Official Trustee of Bengal to be the trustee of the said debutter estate on terms mentioned in the said order. The official trustee was not to be involved in the performance, supervision or control of any religious rites, ceremonies, duties, etc., but he was to make certain payments to the shebaits or any other persons ordered by the court. He was not responsible for seeing as to the application of funds so made over. On the 11th August, 1943, an order was made by Ameer Ali J. By this order the expense of daily beggar-feeding at the Thakurbatty was increased from Rs. 137 per month to Rs. 205-8-0 per month. The order shows that 100 poor persons were to be given free-feeding daily. It is not very clear from the order whether this was to be done out of the fund above-mentioned or additionally. It is generally agreed that some poor persons are fed but certainly not to the extent ordered by the learned judge. After the official trustee took possession he had to file income-tax returns. He was assessed in respect of the income of the debutter estate and in the assessment orders he was described as follows :
'The Official Trustee of Bengal for private religious trust of Chitra Bassi (Sole beneficiary Sree Sree Radhagobinda Jew).'
Assessments were made in the status of an 'individual' under section 41 of the said Act in respect of the assessments for the years 1939-40 to 1942-43. Reference was made under section 66 (2) of the said Act and the matter came up before a Bench of this court presided over by Chakravartti C.J. The three questions were framed as follows :
Question 1 :
'Whether upon a proper construction of the relevant documents executed by the late Smt. Chitra Dassi and the relevant scheme sanctioned and orders passed by the High Court, the property can be said to be held under a private religious trust within the meaning of that phrase as used in the explanatory paragraph appended to section 4 (3) of the Indian Income-tax Act ?'
Question 2 :
'Whether the deity or deities to whom the income from the property is paid is or are assessable in respect of such income under the Indian Income-tax Act ?'
Question 3 :
'If, on a proper construction of the said documents, the property is found to be held under a private religious trust, is the income from such property exempt from taxation by reason of section 4 (3) of the Indian Income-tax Act read with the explanatory paragraphs appended to the said sub-section except for such part of it as does not enure for the benefit of the public ?'
The answers that were given in the reference were as follows :
Question 1 :
Question 2 :
Does not arise out of the facts of the case.
Question 3 :
As framed, wholly unintelligible and not pressed.
I have set out these questions and answers in full, because the matter has come up upon a reference before us in respect of assessments of subsequent years, namely, 1943-44 to 1951-52. The questions asked, however, are not identical. I shall refer to this aspect of the matter later. The Tribunal had made a reference under section 66 (1) and had asked three questions but the matter upon coming before a Bench presided over by G. K. Mitter J., the questions were reframed and they were sent back to the Tribunal not only to make a supplementary statement of the case but also to give their own answers to the questions which they have done. With great respect, I do not think that the court can call upon the tribunal to give its own answers to the very questions which the court is called upon to answer, although they can be upon to give all the material facts bearing thereon. The reframed questions are as follows :
Question 1 :
'Whether, upon a proper construction of the relevant documents executed by Smt. Chitra Dassi and the relevant scheme sanctioned and/or passed by the High Court, there was a trust in favour of the deity or whether there was dedication of the properties to the deity ?'
Question 2 :
'Alternatively, if the dedication to the Thakur constitute trust, is it a religious trust which did not enure to the benefit of the public ?'
Question 3 :
'Is the Thakur Radha Gobinda Jew liable to assessment under the Indian Income-tax Act ?'
We shall now proceed to answer these questions. With regard to question No. 1, both parties have agreed before us that the word 'trust' mentioned therein means a trust in the technical sense, that is to say, in the form of an English trust. Actually, there was no dispute before us that the dedication of the properties to the deities in this case was not by way of a trust in the technical sense, that is to say, in the English forms, It is well-settled that endowments for religious purposes may be made under the Hindu law, either by executing a trust in the technical sense, that is to say, as understood in the English law, by transferring properties to trustees in trust for a deity, or there may be a 'dedication', which means the transfer of property to a deity according to the Hindu custom, whereby the dedicator divests himself of his property for religious purposes in favour of a deity or for other religious or charitable purposes.
In the present case, we are concerned with three separate deeds which are as follows :
'(1) The ekrarnama dated the 25th May, 1820 (annexure A);
(2) The Postcript dated the 27th February, 1822 (annexure A-1); and
(3) The will dated the 8th December, 1842 (annexure B)'.
In none of these documents was any trust created in the technical sense of the term, either testamentary or non-testamentary. There was no conveyance of the properties in favour of any trustee. By the 1st document, which is described as an 'ekrarnama' or an agreement, the executant made a gift in respect of a plot of land and her sons agreed to build thereon certain structures to be utilised for 'Jatra Mahutshab of Sree Sree Ishwar and Sree Ishwari Thakur Batty for the constant Sheva.' The sons agreed not only to defray the costs of construction out of their own pockets, but also agreed to defray the expenses of the sheva themselves. Subsequently, the settlor established the deity Sree Sree Radhagobinda Jew and added further properties to the original endowment. The lineal descendants of the settlor were to act as shebaits and it was in every way a normal Hindu endowment. In her will, the testatrix mentioned that she had made a 'debutter' of the property in favour of Sree Sree Radhagobinda Jew. I do not know why in the questions framed, the schemes sanctioned and/or passed by the High Court were included. Surely, the schemes framed by this court could not alter the nature of the original endowment. Be that as it may, our answer to question No. 1 is, that upon a proper construction of the relevant documents executed by Chitra Dassi and the relevant schemes sanctioned and/or passed by the High Court, there was a dedication of the properties to the deity, but that there was no trust in the technical sense, that is to say, as understood in the English law. We must make it clear, however, that the answer is not to be taken to mean that, by such a dedication, no trust at all was created, because, in our opinion, a dedication of the properties to the deity is also a trust, but in the larger sense. We have not also been asked the question which was asked in the previous reference answered by a Bench presided over by Chakravartti C.J., namely, whether the property can be said to be held under a private religious trust within the meaning of that phrase as used in the explanatory paragraph appended to section 4 (3) of the said Act. The answer to such a question is not free from difficulty. It appears from the judgment of the learned Chief Justice that Dr. Radhabinod Pal, who appeared for the assessee, conceded that the question could not be answered in the negative and that he was unable to contend that, on a proper construction of the relevant documents, the trust could be held to be not a private religious trust. The question was therefore answered in the affirmative, but may be said to have been done 'ex-concessionis.' There is however another Bench decision of this court, Sree Sree Iswar Gopal Jew v. Commissioner of Income-tax, in which S. B. Sinha J. held that the word 'trust' in the explanatory paragraph appended to section 4 (3) of the Indian Income-tax Act only meant a trust in the technical sense or in the English form, and did not apply to ordinary dedications in favour of a deity. Whether these two Bench decisions are conflicting on the point, is a difficult question and requires serious consideration. No question relating to the Explanation to section 4 (3) has been asked in this reference and, therefore, we make it clear that we have not dealt with this question and certainly not as to whether these two decisions are actually in conflict or not and which one should be followed.
I now come to question No. 2. It is prefaced by the word 'alternatively'. In our opinion, the question asked does not refer to a state of affairs which can be said to be alternative to question No. 1. A dedication in the Hindu form is also a trust, although in a larger sense. Therefore, there is no sense in asking whether it is a 'deduction' or a 'trust' because a dedication is also a trust. It is in this larger sense, that the word 'trust' is used in question No. 2. Both parties agreed before us that in this question the word 'trust' does not mean a trust in the technical or the English sense. That a dedication is a trust in the general sense, within the meaning of the expression as used in sections 4, 40 and 41 of the said Act, has been explained in two judgments. The first judgment is that of a Division Bench of this court presided over by P. B. Mukharji J. Naskar (Decd.), Shebaits of Sri Sri Kubeswar Mahadev Thakur. The second judgment is that of a Division Bench presided over by myself in Sri Sri Sridhar Jiew v. Income-tax Officer, District II (I) (Appeals Nos. 212, 213, 215 to 217 of 1962, judgment dated 17th September 1965).
That the expression 'trust' can be applied to Hindu endowments has been explained by B. K. Mukherjea J. in his Tagore Law Lectures. `The Hindu Law of Religious and Chritable trust. After explaining the origin and meaning of the word 'trust' in the English law, the learned author says as follows :
'You will see that the trust in its origin was a highly artificial thing which had its foundation upon a dual system of law and a dual system of property which came into existence in England under peculiar political and historical conditions.
You could not possibly expect to find a trust in this form in the Hindu system. But the existence of dual ownership is not an essential ingredient in the conception of trust and if you take trust in its broad and general sense as signifying a fiduciary relation under which a person in possession of or having control over any property is bound to use that property for in Hindu law. A shebait in charge of a temple, or a mohant having control over a religious institution, would be a trustee in this general sense.'
The learned author has subsequently elaborated this point as follows :
'In the conception of debutter, therefore, two essential ideas are involved; in the first place, the property which is dedicated to the deity vests in an ideal sense in the deity itself as a juristic person. In the second place, the ideal personality of the idol is in the nature of things linked up with the natural personality of the shebait, manager or dharmakarta, who as persons entrusted with the custody and worship of the idol are obliged and empowered to do what may be required for the service of the idol and for the benefit and preservation of its property. The title of the debutter property is in the idol and not in the shebait who is not and cannot be a trustee in the sense in which it is used in English law. The shebait is however a trustee in the general and ordinary sense of the term, and, as I have said in the first lecture, the distinction between legal and equitable ownership is a highly artificial distinction which had its origin in England owing to purely historical reasons and such distinction is not essential to the juridical conception of trust. The shebait holds the debutter property for carrying into effect the pious purposes that are symbolised in the deity, and he is bound to carry out the directions given by the founder, in relation to the worship of the idol and management of its property.
That the word 'trustee' is used in the larger sense in the said Act is clear from the Supreme Court decision in Aggarwal Chamber of Commerce Ltd. v. Ganpat Rai Hira Lal.
The second part of the question is as to whether, if it is a trust, is it a religious trust, and if so whether it enures to the benefit of the public. It will be observed that it does not use the word 'public' or 'private' in connection with a religious trust. On behalf of the revenue, Mr. Pal has argued that it is a private religious trust, but that it did not enure for the benefit of the public at all, except that by an order made by Ameer Ali J. in August, 1943, the learned judge provided for feeding of 100 poor persons. Mr. Pal has argued that this did not make it a public trust and to the extent of the feeding of the feeding of the poor, the Income-tax Officer has granted deduction to the assessee. Mr. Mitra appearing for the assessee has stated that it is also not his case that it is a public religious trust. His case is that it is a private religious trust. But, according to him, it wholly enures for the benefit of the public. Both the parties have cited a number of cases before us which really are on the point as to what makes a trust a public trust. I shall presently discuss as to whether this argument is of any assistance in the present case. The first part of the question, namely, as to whether it was a religious trust must therefore be answered in the affirmative. I now proceed to answer the latter part of the question, namely, as to whether the trust enures for the benefit of the public. Although the question as to whether a trust is a public or a private trust is not identical with the question as to whether a private trust enures for the benefit of the public, the tests are bound to be similar. A public trust is wholly for the benefit of the public. A private trust may be partly so. Where, in a private trust, the entire benefit is given to the public the distinction between a private trust and a public trust must be slender indeed. However, the indications which decide as to whether a trust enures for the benefit of the public, involve consideration of similar factors which determine whether a trust is public or private. I shall, therefore, deal with the authorities that have been cited. I must mention here that the authorities are all agreed upon one point, namely, that the matter depends on the facts of each case. Certain tests have been laid down, but by and far, each case must be decided upon its own facts. The first case to be considered is a decision of the Supreme Court, Deoki Nandan v. Murlidhar. The facts in that case were as follows : One Shew Ghulam, a pious Hindu, constructed a Thakurdwara during the years 1914-1916, and installed the idol of Shri Radhakrishnaji therein. In March, 1919, he executed a will whereby he bequeathed all his lands to the Thakur. The testator had two wives, one of whom, Ram Kuar, has predeceased him and the surviving widow, Raj Kuar, till her death in 1933. His nephew got into possession and the appellant who was a distant agnate of the settlor filed a suit claiming it to be a public endowment and alleging mismanagement and asked for the framing of a scheme and administration by the court of the endowment. In the court of the first instance, it was held that the Thakurdwara was a private endowment. The matter ultimately went to the Supreme Court and Ayyar J. held that it was not a private endowment but a public one. Ayyar J. explained the tests that are to be applied in such a case. The learned judge said as follows :
'The question that arises for decision in this appeal whether the Thakurdwara of Sri Radhakrishnaji.... is a public endowment or a private one is one of mixed law and fact....
It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in the light of those principles, the facts found or established. The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individual, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained in the latter they constitute a body which is incapable of ascertainment.... a religious endowment must be held to be private or public, according as the beneficiaries thereunder are specific persons or the general public or sections thereof.
Then the question is, who are the beneficiaries when a temple is built, idol installed therein and properties endowed therefor Under the Hindu law, an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. But does it follow from this that it is to be regarded as the beneficial owner of the endowment Though such a notion had a vogue at one time, and there is an echo of it in these proceedings, it is now established beyond all controversy that this is not the true position. It has been repeatedly held that it is only in an ideal sense that the idol is the owner of the endowed properties. Vide Prosunno Kumari Debya v. Golab Chand Baboo, Jagadindra Nath Roy v. Rani Hemanta Kumari Debi and Pramatha Nath Mullick v. Pradyumna Kumar Mullick. It cannot itself make use of them; it cannot enjoy them or dispose of them, or even protect them. In short, the idol can have no beneficial interest in the endowment..... they can be described as their owners only in a figurative sense, and the true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship... When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.'
The learned judge then proceeded to apply the tests to the facts of the case. The first fact to be considered was that the will itself recited the fact that the settlor had two wives but no children. It was, therefore, difficult to conceive the settlor making an endowment only for the benefit of his family. There was a clause in the will which appointed a committee of four persons to look after the management of the temple and its properties and of these, two were not relations of the testator and belonged to a different caste. This was an important indication that it was not intended to be an endowment solely for the benefit of the testator or his family. The third fact to be taken into consideration was that the idol was installed, not within the precincts of residential quarters, but in a separate building constructed for that very purpose on a vacant site. This was an important indication upon the point as to whether it was a private or a public trust. In fact, the evidence was that the temple was built in a village in which there was no other temple, at the instance of the villagers, for providing a place of worship for them. Upon a consideration of all these facts, it was held that the endowment was a public one.
The next case cited is also a decision of the Supreme Court, Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi. The facts in that case were as follows : More than two hundred years ago, one Ganapati Maharaj is said to have it revealed to him in a dream that an image of Venkatesh Balaji would be found by him in river Tambraparni in Tirunelveli District. He found the image, brought it to his house in Junnar in the District of Poona and installed it. The tradition is that Timmaya, the son of Ganapati Maharaj, again had a dream that the deity should be removed to Nasik and he did so. After the death of Timmaya, his eldest son, Bapaji, obtained a plot of land as gift from the Peshwa near the bank of the Godavari river at Nasik and built a vast temple with a large Sabha Mandap which could accommodate about 600 persons at the time of the darshan and worship of the deity.
The deity received numerous gifts from rulers like the Peshwa, Holkar and Scindia, as well as others. Ultimately, litigation started and the question to be decided was as to whether the temple was a public or a private endowment. Hidayatullah J. whether the various facts which indicated the public nature of the endowment. He pointed out that the appellant himself had published a history of the Sangasthan, which described how from time to time the Peshwas and various sardars granted villages to the deity. In fact, at the relevant time, the properties of the deity consisted of eleven villages and cash moneys and other urban properties. The jagirs and inams were recorded as Devasthan by the Inam Commissioner. It was found that for all these two hundred years, the public had attended the worship of the deity and none were ever excluded from the worship. The merchants of the locality kept a separate khata in the name of the deity, in which they set apart a portion of their earnings as kangi which was paid regularly to the temple. There were celebrations, utsavs, etc., and daily a large number of Brahmins and others were fed and at the time of the festivals all the visitors were also fed. The deity also went on such occasions in procession through a marked route, and there were ten carriages in which it rode for ten days. In such festivals not only the public of Nasik joined, but people came from various parts of India. For playing music or performing the services, the deity had conferred hereditary inams upon those who attended to them. Public offerings were invited and were never refused. From these facts it was held that here was abundant evidence to show that the endowment was a public endowment. The third decision cited by Mr. Mitter is also of the Supreme Court, State of Bihar v. Smt. Charusila Dasi. In that case, the facts were as follows : Srimati Charusila Dasi, widow of one Akshya kumar Ghose, executed a trust dated March 11, 1938. It was therein recited that the settlor had constructed a twin-temple (jugal mandir) in Karanibad in Deoghar town, in one of which she intended to instal the deity of Iswar Srigopal which had already been installed in her house and was being regularly worshipped and in the other temple she wished to establish a marble image of Sri Sri Balanand Brahmachari, who was her religious preceptor. In fact, these wished were carried out and various properties were gifted, out of the income of which the objects of the trust were to be fulfilled, namely, the installation of the said deity and the said image, the daily seva and periodical festival and for running a hospital for Hindu females with an attached out-door charitable dispensary. The question arose as to whether this was a public or a private endowment. The High Court of Patna held that this was a private endowment but the Supreme Court of set aside the judgment holding that the endowment was a public one. The facts which induced the Supreme Court to come to the conclusion were as follows : The first fact was that the trustees consisted of persons, three of whom were strangers to the family. The trust deed permitted the public to give pronamis and perquisites which would then form part of the trust estate and this showed that the right of worship was not confine to the who could offer pronamis and perquisites to the deities. The ceremonies and festivals enjoined by the trust deed appeared to be of public character. These were to be performed on such a large scale that the intention was clear that the public were given a right to take part in them. The provisions as regards hospitals and charitable dispensaries were, prima facie, for within the residential precincts of the settlor but in a separate building. From these facts it was held that the endowment was a public one. Before we close this aspect of the case it is necessary to cite another case, Prasaddas Pal v. Jagannath Pal. In that case, one Nilmani Pal executed a deed of endowment in July, 1911, by which he dedicated certain Calcutta properties to the idol Shree Shree Annapporna and the whole of the income was to be devoted to deva seva and the feeding of the poor and other charitable objects mentioned therein. It was argued that the fact that the entire income of the debutter properties was to be spent for the purposes of deva seva and feeding of the poor made it a public endowment. Mitter J. repelled this contention. It was held that the mere fact that the endowment required these acts were really incidental to the main purpose, namely, the puja of the deity. The evidence showed that it was a private endowment.
Let us now apply these tests to the facts of the present case. I do not know why Mr. Mitter has laboured this point because he has himself contended that this was a private religious trust, although in his opinion it enured wholly for the benefit of the public. Assuming for the moment that in this case. In none of the three documents, namely, ekrarnama, postcript or the will is there any mention of the public. On the other hand, the settlors intention of making private endowment for the benefit of the settlors is amply clear. In this case she merely that they will not only build the Suddarbatty at their own pockets and pay the rates and taxes themselves. She made it clear that the shebaity would be confined not only to her family but to her lineal descendants belonging to the same gotra. Even the members of her family belonging to a different gotra were excluded. It will appear from the facts stated above that the deity was installed in the residential house of the settlor and, in fact, has remained there ever since. These facts amply show that it was a private endowment and not for the benefit of the members of the public. Mr. Mitter says that there are certain facts which show that the endowment enures for the benefits of the public. The first fact is that the settlor intended that there should be jatra and mahutsab performed in the dedicated premises and, according to him, the word 'mahutsab' indicates a vast celebration and as the proposed Suddarbatty was in the case of 'Venkatesh Balaji' that it was intended by the forward is that the members of the public only. The second point put worship of the deity. In support of this proposition Mr. Mitter refers to a September, 1957. It appears that the Appellate Tribunal had asked for a report and a copy of the report of the Appellate Assistant Commissioner is at pages 252 to 254 of the main paper-book. The following extract from it will be of importance :
'4. The administration of the affairs of the temple is conducted by sebaits who are appointed by turns from amongst the members of the family. Shri Nand Kishore Mallick who attended before me and his brother December, 1956, to 20th February, 1957, i.e., 73 days of which period the accounts were also produced before me. The sebaits obtain funds from the official trustees which are to be spent for the purpose and in the manner sanctioned by the High Court. During the afore-mentioned 73 days period the Mallicks received Rs. 30 per diem for puja (Rs. 900 p.m.), Rs. 137 per month for feeding of beggars, additional sums for special festive occasions, e.g., Rs. 50 for Basanta Jatra, Rs. 200 for Singasana Jatra and Rs. 90 for other three occasions and certain other sums for expenses actually incurred e.g., electric charges, Rs. 52-14-0, and winter-clothing for employees, Rs. 50. On an average, the amount received came to Rs. 1,200 p.m. of which the sum of Rs. 900 for Deva Seva was spent on salaries to temple staff comprised of 14 persons, their feeding expenses and bhog, etc. Shri Mallick told me that salaries of staff were about Rs. 250 p.m. and the balance of Rs. 650 was spent for other purposes. Thus Rs. 14,000 to Rs. 15,000 per annum is spent on the temple by the sebaits. The balance of the income is left to accumulate with the official trustee. No donations are made to any public bodies or charitable institutions.
5. In the temple, puja is done twice daily, one in the morning and again in the evening. There is no restriction for entry in the temple to bona fide worshippers for darshan and kirton but in actual practice hardly any member of the public attends daily puja. It is only on special festival occasions such as Julan Jatra, Dolijatra, Ratha Jatra Janamasthami that the public in general come to the temple. For such occasions special sanctioned me that the amount sanctioned for such festive occasion was Rs. 1,200 as against Rs. 900 normally spent. The affairs of the temple are actually conducted by the temple staff of 14 persons which include darwans, priest, cook, bearer and other assistants.
6. From the books of accounts that were produced before me it was not possible to find out as to what were the services actually rendered by the temple staff, what was the expenditure incurred on feeding of beggars and on daily puja because the entire expenditure was amalgamated and separate details were not maintained for expenses of different type. In fact, the accounts showed only the receipts from the official; trustee from time to time and the expenditures incurred from day to day in lump sums without any details.'
It is apparent from this report that the members of the public did not attend the daily worship. Only on special festive occasions, the public came to the temple. Does this necessarily mean that the endowment is a public one or that it enures wholly for the benefit of the public In my opinion, it does not. This matter has been lucidly explained by Sir George Rankin in a Privy Council decision, Babu Bhagwan Din v. Gir Har Saroop. In that case the facts were as follows : One Daryao Gir installed the deity Bhaironji and a grant was made to him, of land by the then reigning Nawab of Oudh. The founder and his family administered the temple and endowed properties. They were known as Goshains or Grihastha Fakirs. There was no doubt that the public had uninterrupted access to the temple premises. The question arose as to whether it was public endowment or a private endowment for the benefit of the family. Sir George Rankin said as follows :
'It will be convenient to indicate the main features of the evidence before attempting to draw any inferences from the documents. The appellants rely strongly on the fact that for many years Hindu members of the public have resorted to the temple for worship and darshan without let or hindrance. About 46 years before the trial, a mela or fair has been started by some musicians and dancers and had become an annual function towards which public subscriptions were collected. There was some evidence that part of these money has been spent upon white-washing and repairing the temple but the Chief Court does not consider this to be established, though it is certain that the temple and its Goshains profited from the increased resort to the temple during the mela... The general effect of the evidence is that the family have treated the temple as family property, dividing the various forms of profits whether offerings or rents, closing it so as to exclude the public from worship when marriage or other ceremonies required the attendance of the members of the family at its original home, and errecting samadhis to the honour of its dead. In these circumstances it is not enough in their Lordships opinion, to deprive the family of their private property to show that Hindus willing to worship have never been turned away or even that the deity has acquired considerable popularity among Hindus of the locality or among persons resorting to the annual mela. Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol : they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. Facts and circumstances, in order to be accepted as sufficient proof of dedication of temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and as worship generally implies offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. Thus, in Mundacheri Koman v. Achuthan Nair the board expressed itself as being slow to act on the mere fact of the public having been freely admitted to a temple.'
Deoki Nandan v. Murlidar was dealing with a case where uninterrupted public user was not the only criterion. There were other strong indicia of public user which has been mentioned above. In the present case the report mentioned above merely shows that at the time of festivals the members of the public were not turned away. Even in private endowments this may very well happen and, I think, that Sir George Rankin rightly pointed out that it is not in consonance with Hindu sentiments or practice that worshippers should be turned away from temples whether they were private or public. In the instant case, the public never attended the daily puja. As regards the size of the Suddarbatty, in my opinion, it does not at all indicate the existence of a public endowment. The temple of Sri Venkatesh Balaji mentioned in the Supreme Court cited above was a 'vast' temple which attracted numerous donations by princes and others. The circumstances therein are not comparable to the facts of the instant case. The only public user of use for the benefits of the public that I can see is the provision in the order of Ameer Ali J., dated 11th August, 1943, in which he directed the feeding of beggars or indigent people. The report mentioned above will show that only Rs. 137 p.m. is spent for the feeding of beggars. Rupees 4,000 to Rs. 15,000 is spent per annum for the temple and the amount spent on the feeding of beggars is, therefore, slender indeed. As regards 'Mahutshab' it will appear from the said report that out of Rs. 1,200 per month spent on the Deva Seva Rs. 900 is spent on salaries of temples staff and Bhog. The material show that the word 'Mahutshab' has not been used in the sense of a very large festival but it really means 'Machhab' which is a peculiar festival in West Bengal celebrated in connection with Goshwains of Nabadwip. In fact, regard being had to the scale in which it was celebrated in this particular endowment and the monies spent on it, there was no question of holding any large festival. I have already referred to the decision of Prasaddas Pal v. Jagannath Pal in which it has been held that the feeding of poor by itself is not decisive on the question as to whether the endowment is public or private. An organisation to feed the poor may be contained in a private endowment or in other words, in private endowments there often is an intention of feeding the poor. It does not militate against its private character.
For the reasons given above, I have come to the conclusion that the endowment is a private religious trust and the documents creating it or confirming it, grant no benefit to the members of the public. By an order made by this court mentioned above, certain benefits have been given to the members of the public inasmuch as direction were given for the feeding of the poor. That is the only instance in which a benefit enured for benefit of the public.
I now come to the last question, namely, as to whether Thakur Radhagobind Jew is liable to assessment under the Indian Income-tax Act. The question may be put in another way, namely, as to whether a Hindu deity is liable to assessment under the Indian Income-tax Act. This question was sided over by P. B. Mukharji J. - Commissioner of Income-tax Act v. Jogendra Nath Naskar and Hem Chandra Naskar, - and my decision in Sri Sri Sridhar Jiew v. Income-tax Officer, District II (I). Mr. Mitter has formulated his argument in the following way : The charging section in the Income-tax shall be charged in respect of the total income of the previous year of every individual, Hindu undivided family, company, and local authority, and of every firm and other associations of persons or the partners of the firm or the members of the association individually. The only heading under which a Hindu deity can be assessed is the an 'individual' The question is whether a Hindu deity can be called an 'individual'. Mr. Mitter has argued and this argument finds support from the authorities as well as the text-book writers that under the Hindu law, when property is dedicated to a deity a Hindu deity not being a sentient being, cannot hold and enjoy property like a human being, In this sense, the deity cannot be a beneficiary. On the other hand, it has been repeatedly pointed out that it is a mistake to equate a Hindu deity with a sentient being. According to Hindu notions, although a deity cannot hold property or enjoy the same like a human being, it does so in a ideal sense. In the ideal sense, it no only can hold property and enjoy the income, but its seva and puja consist of operations as if is was a human being. It is fed and made to sleep and is washed and clothed as if it was a sentient being. It is fed and made to sleep and is washed and clothed as if it was sentient being. The benefit, in fact, enures to the shebait and the worshippers but that is fiction that has been introduced in the Hindu law and must be kept in mind. Mr. Mitter has taken us to the philosophical aspect of Hindu endowments. He argues that an 'individual' must be a person under section 3. The Hindu concept of God is that of an infinite being. He points out that in the ekrarnama and the postcript mention is made of Shri Shri Iswar and not Radhagobind Jew. Even this philosophical conception does not destroy the proposition mentioned above. The law of Hindu endowments recognised that God is infinite and, in its spiritual embodiment, can neither hold from nor substance nor is it capable of enjoyment of mundane properties. Nevertheless, it is permissible for Hindus to see the infinite in a finite form. In other words, a Hindu recognised divinity in a finite form which ultimately progressed into and dissolved itself in the infinite. There is, therefore, no conflict in conceiving the infinite in a finite form and to attribute to the infinite a capacity to enjoy mundane properties. This is why the word 'individual' in section 3 should not be taken to mean only human beings. This has been made clear by the Supreme Court in the case of Commissioner of Income-tax v. Smt. Sodra Devi. In that case Bhagwati J. pointed out as follows :
'..... the word individual has been not defined in the Act and there is authority for the proposition that the word individual does not mean only a human being but is wide enough to include a group of persons forming a unit. It has been held that the word individual includes a corporation created by a statute, e.g., a university or a bar council, or the trustees of a baronetcy trust incorporated by a Baronetcy Act. It would also include a minor or a person of unsound mind'.
A Hindu idol is a juristic entity. This appears from the pronouncement of the Judicial Committee in Pramatha Nath Mullick v. Pradyumna Kumar Mullick, where Lord Shaw says as follows :
'A Hindu idol is, according to long established authority founded upon the religious customs of the Hindus, and the recognition thereof by of suing and being sued. Its interests are attended to by the person who has which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities; for this doctrine, thus simply stated, is firmly established.'
In the same case, the Judicial Committee quoted the observations of Sir Ashutosh Mukherji in Rambrahma Chatterjee v. Kedar Nath Banerjee, by saying :
'It is sufficient to state that the deity is, in short, conceived as a living being and is treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy : the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest.'
This aspect of it has been well brought out in a Bench decision of this court - Tarit Bhusan Roy v. Sri Sri Iswar Sridhar Salagram Shila Thakur. It has been stated there as follows :
'The efficient subject of the rights ascribed to an idol must ultimately be some human beings. It must be they who enjoy such rights and, if law protects such rights, it is because of the existence of such ultimate human concern. The idol, as the juridical person, only affords the technical means of developing the juristic relations between those ultimately interested in the endowed property and the strangers. The so-called interest of the idol is merely an ideal interest very different from the interest which an infant has sin his property. The introduction of the idol and its recognition as a juristic person are more a matter for the procedure and the procedure in India recognises the idol as having a locus standi in judicio.'
It is clear therefore that a Hindu idol is a juristic entity who is given the status of a human being capable of having property and enjoying it although it is not a human being and can only act through the shebait who 'speaks for him on earth'. It is the shebait who holds the property, realises the income and looks after the estate of the deity and does all acts in connection therewith which a human being should have been expected to perform. Therefore, the word 'individual' in section 3 does not necessarily refer to a human being and will include a juristic person. In the amendment in 1961 this aspect of the matter has been recognised and juridical persons have been expressly brought within the net of taxation. Mr. Mitter goes to the extent of saying that even under the 1961 amendment a deity has not become assessable. I am unable to accept this argument. In my opinion, a Hindu deity was always liable to assessment and chargeable to income-tax. The 1961 amendment has merely recognised this fact, but has not introduced anything new. Whether under the provisions of section 4 a private religious endowment would be exempt from payment of tax or not is another matter altogether and as I have pointed out above we have not been asked as to whether a Hindu deity in this case comes under the Explanation to section 4 (3) of the said Act. Another important thing to be chargeable. This principle has been laid down by Viscount Cave in Williams v. Singer where the basis of chargeability under the Income-tax Act came to be enumerated as follows :
'.... that the person charged with tax is neither the trustee nor the beneficiary as such, but the person in actual receipt and control of the income which it is sought to reach. The object of the Acts is to secure for the State a proportion of the profits chargeable, and this end is attained (speaking generally) by the simple and effective expedient of taxing the profits where they are found.'
It is the receipt of income which determines chargeability and not the person who receives it. In other words, it is the income which is chargeable to income-tax in whosover hands it is found. This principle has been approved in Aggarwal Chamber of Commerce Ltd. v. Ganpat Rai Hira Lal by the Supreme Court. Reference may also be made to the Supreme Court decision - Executors of the Estate of J. K. Dubash v. Commissioner of Income-tax. Patanjali Sastri J. (as he then was) said as follows.
'The Income-tax Act directs its attention primarily to the person who receives the income, profits or gains rather than to the ownership or enjoyment thereof. The assessee is defined in section 2 (2) as the person by whom the income-tax is payable and by section 10 the tax is payable by an assess who carries on the business, profession or vocation. The statute thus fastens on the person who carries on the business, etc., the liability to pay the tax on the profits earned by him regardless of their destination or enjoyment. It is also worthy of note that in several instances persons who have no proprietary or other right in the income charged to tax are made liable to pay the tax for no other reason than the convenience of assessment and collection. Such instances are to be found in section 26 (2) proviso, section 18 (7), section 23A (3), section 25A and section 42 (1). As observed by Lord Cave in Williams v. Singer the fact is that, if the Income-tax Acts are examined, it will be found that the person charged with tax is neither the trustee nor the beneficiary as such, but the person in actual receipt and control of the income, which it is sought to reach.'
As I have stated above, a Hindu deity is in the strict sense not an owner of property nor can he enjoy it, except in an ideal sense. It is in that ideal sense that he can be the owner of property and enjoy and enjoy the same. Therefore, it cannot be said that he has neither ownership nor enjoyment. If he is the owner of property, whether actual or in an ideal sense, and income accrues should not be so. For the reasons aforesaid, I am of the opinion that the answer to the third question should be that the deity Sree Sree Thakur Radhagobinda Jew is liable to assessment under the Indian Income-tax Act. The questions and answers are summarised below :
Whether upon a proper construction of the relevant documents executed by Smt. Chitra Dassi and the relevant schemes sanctioned and/or passed by the High Court, there was a trust in favour of the deity or whether there was dedication of the properties to the deity.
Upon a proper construction of the relevant documents executed by Smt. Chitra Dassi and the relevant schemes sanctioned and/or passed by the High Court, there was no trust in the technical or in the properties to the deity. the English sense in favour of the deity but there was a dedication of Such dedication may be considered to be a trust in the larger sense.
Alternatively, if the dedication to the Thakur constituted trust, is it a religious trust which did not enure to the benefit of the public ?
The question is not an alternative one. The dedication to the Thakur constituted a trust in the larger sense. It is a private religious trust and does not enure for the benefit of the public except the direction given for the feeding of the poor as contained in the order of Ameer Ali J. dated 11th August, 1943.
Is the Thakur Radha Gobinda Jew liable to assessment under the Indian Income-tax Act ?
Thakur Radha Gobinda Jew is liable to assessment under the Indian Income-tax Act.
In the facts and circumstances of the case, there will be no order as to costs, excepting that the official trustee will pay his costs as between attorney and client out of the estate in his hands. Certified for two counsel.