The Judgment of the Court was delivered by

Banerjee, J.:— This is a reference under 366 of the 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 religious trust and therefore wholly exempt from taxation under S. 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 estament 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 my 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 testamentary 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 my 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 on 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 for 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 Debuttor 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 Dole 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 cls. 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. Paragraphs 13 to 21 relate to gifts in favour of charity; for example, maintenance and upkeep of a free children's ward, distribution of scholarship to students belonging to the Subarnabanik community, opening and erecting a permanent charitable eye infirmary at Serampore and construction and erection of tubewells for drinking water for the public etc.

4. By para. 22 he gave and bequeathed his undivided half share in the family dwelling house and his half share of and in the shops in the market or bazar at Serampore unto his brother Upendra Nath Dutt to be held and enjoyed by him during the term of his natural lire and after his death he gave his said half share absolutely to the family Deity located at Serampore, Thackoor Sree Sree Lakshmi Janardan Jiu.

5. Clause 23 runs as follows:

“My Executor and Trustee shall after obtaining probate of this my will cause necessary advertisements to be made in two English newspapers, one Bengali newspaper and the Calcutta Exchange Gazette once in every week during the period of two months for notifying to the public the various charitable bequests hereby made in order to enable the deserving public to apply for the benefits under this my will.”

6. Dr. Pal appearing on behalf of the assessee, the Administrator General of Bengal, has conceded that the trust created in para. 9 of the will is a religious trust. The question is whether it is a public religious trust. That depends on the intention of the testator as expressed in the will and the construction of para 9 read with other relevant clauses of the will.

7. The endowment in this case has been made in the form of an English trust as recognised in the case of — ‘Vidya Varuthi Thirtha v. Baluswami Ayyar’, 48 Ind App 302 (P.C). It was not a gift direct to the Deify. It was a gift to the deity through the intervention of a trustee. But that does not affect the point we have got to consider.

8. Religious endowments or debuttor are of two kinds, public and private. In a public endowment the dedication is for the use or benefit of the public. But when property is set apart for the worship of a family God, in which the public are not interested, the endowment is a private one. In this case it has not been said expressly in the will that the Thackurbati would be for the benefit of the public; in other words, it has not been said that the public as a matter of right would have access to the Thakurbati and the right to worship the Deities therein.

9. Undoubtedly, there is the direction in the will that the poor and the Atithis should be fed in connection with the ceremonies to be observed for the Deities who (it appears from the will) were established by the testator in his house at No. 31, Hidaram Banerjee Lane. But that by itself does not make the trust a public trust. In the referring judgment — ‘Manohar Mukherji v. Bhopendranath’, 60 Cal 45Z (FB), Rankin C.J observed: “A direction that the shebait shall spend any surplus income on certain charitable objects or pious acts is not uncommon in Hindu debattars.”

10. It appears to us that in this case the direction of the testator to spend money for the feeding of the poor and the Atithis was subordinate to the main religious purpose, namely, the performance of the ceremonies of the Deities. The testator directed that a certain sum should be spent by the sebaits for the daily seba, worship and bhog of the Thakurs. Then there is the direction for the performance of two ceremonies which are observed in connection with the worship of Lord Krishna whose other names are Radhakanta and Gopal. They are essentially ceremonies performed in connection with the worship of that Deity. The testator said: “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;’” that is to say, the poor and the Atithis should be fed as a part of the main religious ceremonies. The management was entirely vested in the shebaits and the public had no say in the matter. If there was a dispute among the shebaits, Mr. Surendra Lal Pyne was to settle it. Neither the general public nor any section of the people, it appears, had any interest either in the maintenance or management of the Thakurbati or the performance of the prescribed religious duties.

11. This aspect of the matter was considered by a Bench of this Court in the case of — ‘Prasad Das Pal v. Jagannath Pal’, 37 Cal WN 181. In the deed of endowment in that case there was a provision for spending the income of the debattar property for the purposes of ‘deba seba’ and feeding of the poor. It was held that the provision relating to the feeding of the poor did not make the endowment a public charitable one. The learned Judges in the case observed as follows:

“It is argued that this provision about feeding of the poor is part and parcel of the debsheba and cannot be regarded as independent charity in which any class of the public was to have a direct and independent interest. The argument is that the feeding of the poor is really incidental to the Puja. Mr. Pugh who appears for the respondent argues that the trust is principally public, seeing that the feeding of the poor and the feeding of students of educational institutions have been provided for in the deed of endowment. We are unable to accept this contention of the respondent, for it seems to us that the feeding of the poor and the feeding of students if the income of the debutter property increases are really incidental to the main purpose of the endowment, namely, the puja of the Deity.”

12. Their Lordships referred to — ‘Sathappayyar v. Periasami’, 14 Mad 1.

13. In this case the will was made on 12-8-1927 and the testator died about six months later. Though the endowment has been in existence all these years, no evidence was produced before the Income-tax authorities to show that the public had as a matter of right any access to the Thakurbati or had anything to do with the management of the Thakurbati or the worship of the deities.

14. The will has been carefully drawn. The draftsman uses the word “public” in at least two paragraphs, paras. 18 and 23. The draftsman knew the distinction he was making between “public trusts” and “trusts not for the public”. We, therefore, are of opinion that the testator himself whose will it was knowing fully well that the trusts created under paras 13 onwards were public trusts did not say in the will with regard to the trust created in para 9 that it was to be a public trust.

15. The point was canvassed before us as to on whom the onus lay to establish that the trust under consideration is a public trust. But we think the question of onus is of very little importance because we have got to come to a conclusion from the intention of the testator as expressed in the will and we do not find any indication in the will in reference to the trust created by para 9 of the will which enables us to say that the intention of the testator was to dedicate the Thakurbati to the public or, in other words, that it was to be a public religions trust.

16. We notice, however, the testator's direction for putting a tablet on the Thakurbati bearing this inscription: “Srimati Sowdamini Dassee Thakoorbati established by Manicklal Dutt”. Dr. Pal said that in a private temple that was not ordinarily done. I am not very sure of that. In any event that by itself does not show that the intention of the testator was to make the Thakurbati a public temple.

17. The will was made in the following circumstances. The testator had no issue. He had ancestral Deities at Serampore. He established two Deities at his own house in Calcutta. Having no issue he makes provision for his ancestral Deities by making the bequest in para 23 of the will. He makes also a gift in favour of the Deities which he himself established at 31 Hidaram Banerjee Lane. He appoints sebaits and the major part of his property he gives to public charity saying that if there was any surplus the same should be added to augment the property of the Deities established by him. There is no doubt in our mind that the testator was very anxious for the proper upkeep and maintenance of the two Deities which he himself established and which undoubtedly in his life time he devoutly worshipped.

18. We are unable to and in this will any indication which enables us to say that the trust created in para 9 is a public trust. The grant under consideration does not disclose any intention to confer a benefit either upon the people in general or upon any class of sectarians. We, therefore, hold that the trust in favour of the Deities as created in para 9 is a private religious trust.

19. Therefore, our answer to the question put to us is in the negative and the debattar property is not wholly exempt from taxation under Section 4(3)(i) of the Income-tax Act.

20. The Commissioner of Income-tax is entitled to his costs of this reference.

21. The Administrator-General will pay his own costs and the costs of the Commissioner out of the estate. Certified for two counsel.

22. Harries, C.J:— I agree.

C/V.B.B

23. Answer in the negative.