K.L.CHATTERJEE, J. - (1.) THE two questions which have been referred to this Court are as follows : "(1) Whether, on a true construction of the deed of trust dated 15th September, 1941, the trust in question was a public religious and charitable trust and as such, the income of the trust is exempt under s. 4(3)(i) of the IT Act, 1922? (2) If the answer to question No. 1 is in the negative, whether the Tribunal was right in holding that s. 41 of the Indian IT Act, 1922, was applicable and the assessment of tax was to be made at the maximum rate ?"
(2.) THE first point refers to the deed itself and, therefore, let me refer to the deed which is printed at page 20 of the paper- book. THE deed provides as follows: "To have and to hold the said premises set out in the schedule hereunder written unto the said Protapmull Bagaria, Ranglal Bagaria, Gangadhar Bagaria, Indra Chand Bagaria and Onkarmull Jhoonjhoonwalla upon the trusts and for the purposes hereinafter mentioned, viz: (a) THE name of the trust hereby created shall be styled 'Sreemati Ganeshi Debi Sreemati Rami Debi Charitable Trust' .... (c) THE trustees shall out of the income to be derived from the trust property duly carry on the worship of the said deities Sri Ram Sita and Lakshman installed at Sujangarh confirmed (sic) by the parties hereto of the Second Part and shall spend Rs. 250 (rupees two hundred and fifty) monthly and every month for the daily and periodical pujas and shebas of the said deities Shri Ram Sita and Lakshman and sadabrata and shall spend Rs. 25 (rupees twenty-five) monthly and every month for upkeep of the Dharamsala called Seth Sujanmull Protapmull Bagaria Dharamsala at Taura and said Piyau and Kund at Sujangarh Bazar and shall spend Rs. 125 (rupees one hundred and twenty-five) monthly and every month for the Sanskrit Patasala known as Seth Sujanmull Protapmull Bagaria Sanskrit Patasala at Sujangarh. (d) THE trustees shall in the next place pay an annuity of Rs. 50 to Baikishan Devi and a sum of Rs. 25 to Baimanbhari every month during the term of their natural life. (e) THE trustees shall pay a sum in course of any month not exceeding Rs. 50 to each of the settlors to be spent by them or her for such charitable and religious purposes as they or she may desire. (f) THE amount remaining as balance after meeting the abovementioned outgoings and expenses and annuities and allowances as aforesaid shall be held by the trustees as reserve fund to be called Ganeshi Debi Rami Debi Charity Trust Reserve. (g) In case the income of the trust property at any time be found insufficient to meet the outgoings and expenses hereinbefore provided, it shall be lawful for the trustees to apply the said reserve fund known as 'THE Ganeshi Debi Rami Debi Charity Trust Reserve' for the purpose of meeting such deficiency and if at any time the reserve fund in the hands of the trustees be found by the trustees as insufficient to meet the outgoing charges and expenses and payment directed to be made by these presents, then and in that case all charges and expenses for performance of Sheba as mentioned in cl. (c) shall abate proportionately provided that before touching the said reserve fund the trustees are to take the consent in writing from the settlors. (h) THE trustees shall at their discretion be at liberty to spend out of the said reserve fund known as 'THE Ganeshi Debi Rami Debi Charity Trust Reserve' such sums of money from time to time for distribution of alms to the poor and contribution to hospitals or other religious or educational institutions as they shall think fit with consent of the settlors and after the death of the settlors with the consent of the nominees of the settlors as hereinafter appointed." This trust deed was considered by the ITO and it was considered not to be a public religious and charitable trust. Regarding the Sanskrit patasala the objection of the ITO was that all the students belonged to one particular community, namely, Brahmin. Therefore, it would not be for the benefit of the public. With regard to Dharamsala his comment was that the building was dilapidated and therefore, it could hardly be called a dharamsala. With regard to the temple of Rama, Sita and Lakshman the ITO found that there was no managing committee. It was pointed out that sadhus and Brahmins were given food and refreshment after pujas. This, according to the ITO, was not a public charitable purpose recognised by law. According to him, in order to be a public religious and charitable trust, the larger section of at least of the same religion to which the settlors belong must have a right to worship and they must have a right to take food and refreshment after the daily puja. With regard to the provisions regarding the two females, it was stated before him that nothing was paid. According to the ITO, it was not for public charitable purposes. There was an appeal to the AAC. The AAC has considered the relevant provisions. He finds that the temple was situated in the "bazar" area and free distribution of food is daily made to the poor and the mendicants. He has considered the purposes of the trust. He has said that distribution of alms to the poor and Brahmins is an usual practice found in all private temples and, therefore, this cannot be considered to be any purpose which would come within the meaning of public charitable purpose. He considered that piyau and kund would be in the nature of public charity but they could not find out what were the money spent for them. With regard to dharamsala and the Sanskrit patasala the first appellate authority was of opinion that the parties were unable to produce any details regarding the rules for the use of dharamsala and the rules relating to education in the patasala. The deities have been considered to be private deities and the puja is managed by a particular body of persons who would all belong to the settlors' family and the public have no control in the management of the pujas or in the worship. Therefore, the AAC has also been of the opinion that the said deed did not constitute a deed of public religious charitable trust. There was an appeal to the Tribunal. The Tribunal also refers to the aforesaid clauses of the deed and then considers certain decisions but ultimately for the reasons stated in the order of the ITO and of the Assistant CIT agreed that the said deed did not constitute a deed of public religious and charitable trust. The other question that has been considered is whether the maximum rate as under s. 41 should be given or not and all the authorities below agreed that it should be the maximum rate. Therefore, this reference has been made on the two points. The first question for consideration is whether the trust deed was for public religious and charitable purposes. There is no doubt that the control of the trust property is not left to the members of the public. There is no doubt that the control of the trust fund is left to the members of the family. But even though the control is with the members of the family and even though there is no control by the public, the question is whether the trust was created for religious and charitable purposes which would "enure to the benefit of the public". The first matter to consider is whether the deities which were installed viz., Rama, Sita and Lakshman, for the first time by the husband of the settlor were the family deities. "Family deities" ordinarily mean deities installed by members of the family in a part of their residential house for being worshipped by the members of the family only from generation to generation, but the said deities were installed for the first time by the husband of each of the settlors; they were not installed in any part of the family residential house but were installed in a bazar. There is no restriction that pujas will be offered by members of the family only. A sum of Rs. 250 was directed to be spent for the "pujas". A question arises, after the pujas to whom would the prasad (offering of food) go? There is no specific provision in it that the prasad would go to the general public. There is also no specific provision that the members of the settlor's family would get the prasad (food) after it is offered to the deities. But there is a provision for sadabrata and there has been no separate fund for it. Sadabrata means offering of food to the poor, the mendicants and any person who may come to the temple for getting the prasad. Members of the family are not debarred from taking food but anybody and everybody may come and take it. As a matter of fact, it has been found that it is the poor people of the locality and the mendicants and some Brahmins who take it. But, apart from the finding of fact, the term is that the entirety of the food which after offering becomes prasad is to be distributed amongst persons who are ready to accept it. We cannot say that this food was restricted to be used for any private purpose by the settlor. On the other hand, the installation of the deities and the provision for sadabrata imply that the settlor intended that the entire benefit of the amount that is provided for pujas including food would go to the public.. The next matter relates to dharamsala. Dharamsala by the word itself does not mean a residence for one or more members of the family of the settlor. The word itself implies that persons who want to stay there would be allowed to stay there. It does not mean a residence for any or any group of defined persons but that any member of the public may come and may choose to reside there. So, even though it has not been specifically stated that the dharamsala would be used by the members of the public the implication is that the dharamsala would enure to the benefit of the public.
(3.) IT has been urged by Mr. Mookherji for the Department that the public has not been expressly granted any right either to reside in the dharamsala or to offer pujas to the deities or to partake in the distribution of food after worship. The public is not a juridical person; a fluctuating body of persons is not a corporate body: vide Raja Braja Sundar Deb vs. Moni Behara (1951) SCR 431 where it was held: "... unless the defendants-fishermen form a corporate body, or it is found that a trust was created for their benefit, such a body of persons could acquire no right by the doctrine of lost grant." Hence, we cannot expect an express grant of any right to the public but we are to find whether the trust in question was created for their benefit. Clause (c) shows that certain deities, which were not the family deities of the settlors and which were installed for the first time by the respective husbands of the settlors, would be worshipped. These deities were installed not in any part of the family residential house but in a "bazar" area where it would be accessible to the public. It provided for sadabrata, any food that was offered to the deities would not be restricted to be consumed by the settlors or the members of the settlors' family, but it would be sadabrata or, in other words, it would be distributed to the members of the public who may happen to come and take it. They may be mendicants, they may be poor people, they may be bazar people but they need not necessarily be the members of the family.;