DESAI, J. - (1.) THIS is a reference under section 27(1) of the Wealth -tax Act, 1957, made by the Income -tax Appellate Tribunal, Bombay Bench 'B'. The following two question have been referred to the High Court by the said reference : '(1) Whether, on the facts and in the circumstances of the case, the Wealth -tax Act is applicable to the trustees functioning under annexure 'A' ? (2) Whether on a proper construction of annexure 'A' the trust is exempt partially or wholly ?'
(2.) THE assessees before us are the trustees of Khan Bahadur H. M. Bhiwandiwalla Trust. Counsel on both sides are agreed that the answer to the first question is concluded by the decision of the Supreme Court in Trustees of Gordhandas Govindram Family Charity Trust v. Commissioner of Income -tax : [1973]88ITR47(SC) and that in accordance with the said decision the said question must be answered in the affirmative and in favour of the revenue.
(3.) IN order to appreciate the point involved in the second question, a few facts may be stated : Khan Bahadur H. M. Bhiwandiwalla died in Bombay on 19th February, 1920, leaving a will dated 28th April, 1919, with a codicil thereto dated 11th February, 1920. The will is in Gujarati language. The said will was proved granted by the Bombay High Court on 11th December, 1920. The then executors and trustees under the said will executed a deed of trust of 26th July, 1926; the same was registered on 1st September, 1926, under the Indian Registration Act. A copy of the said trust deed has been annexed to the statement of the case as annexure 'A' and contains material portions of the will and the codicil. In annexure ' A ' reference was made to the trust declared in the will and the relevant portion of the will in which the trust referred to runs as follows : 'GH. - With the exception of one big substantial house situate on the other land known as that of Bomonji Kashinath as to the Chawls, houses, etc., which are on the remaining land, the same shall be pulled down and a sum of three to five lakhs shall be spent and thereon chawls (and) houses shall be got built in such manner that on the ground floor of all of them shops may be built. And the same shall be let out to poor and middle -class Zoroastrians for residence and occupation, fixing such rent which upon estimate will yield three and a half or up to four per cent. interest on the whole sum (invested) and the shops shall be let out to persons of very good caste for purposes of shop or any good kind of trade taking sufficient rent (therefor). As to the sum which will be required for building houses on the said land, the same shall be taken in my name and out of my collective Punji and if I during my lifetime should have completed the same then well and good, if not then my trustees shall give the same for Dharam Khata (religious and charitable purpose) in my name and at my Uthiana (third day ceremony after my death) and that on this condition that the rent should be so fixed that the income of the rent should yield interest at three and half per cent, or up to four per cent, and all taxes, all outgoings, insurances, etc., being deducted out of the amount of the rent, as to the balance that may remain out of such moneys for pocket expenses every month and moneys for cloths annually as my trustees shall think fit shall be paid to the members of my family (and) to the members of my brother's families, and if Baj Rojgar (ceremonies) may have to be performed in connection with any members of my family the same shall be performed. In like manner at present I send allowances every month to several poor Zoroastrians of Kalyan and Bombay and on Papeti (holiday) I send them money for clothes. The same are to be continued to be paid to such of them as may be deeded proper and as the trustees may think fit and up to such period as may be considered proper and as to the balance that may remain out of the same (moneys) shall be paid to my servants and attendants belonging to any caste whatever who may be in poor circumstances and to others who may be thought proper in every affliction and trouble (of theirs) and moneys shall be subscribed to funds if after my lifetime the death should occur of any member of my family, my son Nanabhai excepted, and any members of my brothers' families on such occasion for the necessary death ceremonies in connection with those people Rs. 2,000 (in words - Two thousand) for each shall be paid to whomsoever may ask (for the same) and to whomsoever may need (the same) or under the supervision of the trustees the outlays in connection with the death ceremonies shall be made should any one die within up to five years (outlays) in connection with him alone (shall be made) not thereafter. In this manner Rs. 54,000 (Fifty -four thousand) shall be paid by my executors out of my collective Punji.' ;