Banerjee, J. - (1.) This is a reference under Section 66, Income-tax Act. The question referred to us is as follows: "Whether on a proper construction of the will dated 12-8-1927, made by Manicklal Dutt, the Tribunal was right in holding that the Trust created by the will was a public religions trust and therefore wholly exempt from taxation under Section 4(3) (i)?"
(2.) Manicklal Dutt in his lifetime was a Hindu governed by the Dayabhag and lived at premises No. 31 Hidaram Banerjee Lane. He had an undivided half share of and in a dwelling house in Raja Kisory Mohan Goswami Street in Serampore which was the family dwelling house. He had other immovable properties and was possessed of various movable properties, such as Government securities, bonds, shares, etc. He made his last will and testament on 12-8-1927. The testator was a widower. He had no son or daughter and it appears from the will that he intended to make gift of the whole of his estate for charitable and religious purposes for the spiritual benefit of himself, his ancestors, his father-in-law and mother-in-law. The material clauses of the will are as follows: "1. I do hereby revoke all wills and testamentary dispositions heretofore made by me. I have cancelled my registered will dated the ninth day of September one thousand nine hundred and twenty four and I declare this to be my last Will. 2. I do hereby appoint the Administrator General of Bengal and his successor or successors in office for the time being to be the sole Executor and Trustee of this my Will (hereinafter referred to as my Executor and Trustee). 3. I give, devise and bequeath whole of my estate both moveable and immoveable which I am possessed of or may be entitled to at the time of ray death unto my executor and Trustee upon the trusts and for the purposes hereinafter mentioned. 4. I direct that my said Executor and Trustee shall take possession of the whole of my estate and shall sell and convert into cash all my moveable and immoveable properties save and except the house and premises No. 31, Hidaram Banerjee Lane, in the town of Calcutta until a suitable and more commodious Thackoorbati is built as hereinafter provided and also save and except my half share of and in my said family dwelling house and land in Benapara in Serampore and the tenanted shop rooms in the Bazar in Serampore and invest the same after payment thereout of my just debts, funeral tesiamentary and Sradh expenses into three and a half per cent. Government Securities. 5. I declare that I have established and installed deities of Thackoors Radhakanto Jiu and Gopal Jiu in the said house and premises, No. 31, Hidaram Banerjee Lane. The said house and premises No. 31, Hidaram Banerjee Lane, shall until another Thackoorbati is built as hereinafter provided be used as the Thackoorbati for the location of the said Thackoors and I direct that a tablet bearing the inscription 'Srimati Sowdamini Dassee Thackoorbati established by Manicklal Dutt' to be put up on the said premises. 6. I direct my Executor and Trustee to set apart and spend out of my estate a sum not exceeding Rupees forty five thousand for buying a suitable plot of land in the town of Calcutta measuring not less than four to five cottahs and build a suitable Thackoorbati thereon for the location and habitation of the said deities Radhakanto Jiu and Gopal Jiu or to buy a ready made house with land measuring not less than four cottahs in a good locality suitable for a Thackoorbati for the location and habitation of the said deities at a price which together with the expenses that may be incurred for making additions & alterations thereto shall not exceed the sum of Rupees forty five thousand. After a new Thackoorbati is built or purchased a tablet bearing the inscription 'Srimati Sowdamini Dassee Thackoorbati established by Manicklal Dutt' shall be put up on the said premises and the said Thackoorbati together with the land appertaining thereto shall be the absolute property of the said Thackoors Radhakanto Jiu and Gopal Jiu. 7. I direct that after such Thackoorbati is built and the said Thackoors Radhakanto Jiu and Gopal Jiu are removed and located there my Executor and Trustee shall sell at the best value that may be obtained the said premises, No. 31, Hidaram Banerjee Lane and the sale proceeds thereof shall form part of my estate. 8. I direct my Executor and Trustee to pay to the person who shall be entitled to perform my Sradh a sum of Rupees two thousand for meeting the expenses of my funeral, Sradh and Sapindakaran (i.e. first anniversary) ceremonies. 9. I will and direct that ray Executor and Trustee shall set apart and hold Rupees one lac and seventy-five thousand to be invested in three and a half per cent. Government Securities which shall be called and known as Radhakanto Jiu and Gopal Jiu Debuttor Fund & the said fund shall be the absolute property of the said Thackoors. My Executor & Trustee shall out of the income of the said Radhakanto Jiu and Gopal Jiu Debuttor Fund pay for the periodical repairs and upkeep of the Thackoorbati and shall pay monthly and every month out of the balance of such income a sum of Rupees two hundred and fifty to the Shebaits for the time being to meet the expenses to be incurred fur the daily sheba, worship and Bhoga of the said Thackoors including the salary of the Pujari, cook, servant and other incidental charges. I further direct that the balance of the income of the said Detauttor Fund that may be left after payment of the said monthly sum of Rupees two hundred and fifty and the commission of the Administrator General for collection of the income of the said Debutter Fund and the expenses of the periodical and other repairs and upkeep of the Thackoorbati shall be spent for the performance of periodical festivities and ceremonies of the said Thackoors in the manner following: Rupees one thousand two hundred and fifty for Jhoolan Jatra ceremony. Rupees seven hundred and fifty for Dole Jatra ceremony. Rupees seven hundred and fifty for annual Mahatsab and for all other festivities and ceremonies during each year and the feeding of the poor and Atithis in connection therewith. My Executor and Trustee shall in consultation with the Shebaits for the time being of the said Thackoors frame a scheme for the administration of the said fund in accordance with my direction & for the daily Sheba worship and Bhoga of the said Thackoors and my Executor and Trustee shall be at liberty to provide for a reserve fund up to the limit of Rupees ten thousand out of the surplus income, if any, of the said Debutter Fund for the purpose of meeting expenses for the improvement of the Thackoorbati and other contingent expenses. 10. I will and direct that my niece Srimati Kiranbala Dassee who is a widow shall during the term of her natural life be entitled to live and reside in the Thackoorbati and shall look after and attend to the Sheba of the said Thackoors, she shall be fed and maintained out of the income of the said Debuttor Fund. I further will and direct that none of my Shebaits or other relatives shall have any right to reside permanently or temporarily in the Thackoorbati."
(3.) By Clauses 11 and 12 the testator made provisions for the appointment of shebaits. Clause 12 contains an important provision relating to the management and carrying on of the sheba of the Deities. He directed that in case of difference of opinion amongst the shebaits with reference to the management and carrying on the seba of the Thakurs and the festivities, the opinion of the majority of the shebaits shall prevail. In case there was no majority amongst the sebaits or the sebaits could not agree as to the management and carrying on of the seba, the shebaits should submit their points of difference to Babu Surendra Lal Pyne, Attorney-at-Law, whom the testator appointed as the supervisor over the sebaits. The will provides that the decision of Babu Surendra Lal Pyne shall be final and binding. Surendra Lal Pyne was the testator's attorney & draftsman of the will.;