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TMI Blog1965 (2) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... es, charitable, benevolent and other objects specified in the third schedule hereunder written or to such one or more of them in such manner and in such proportions as to the said trustees may from time to time seem expedient and proper. It is not necessary to reproduce the entire third schedule, inasmuch as it is not in dispute that the first four out of the six objects mentioned in the third schedule are clearly for public purposes of a charitable nature. The dispute centers round the provisions contained in clauses 5 and 6 of the third schedule. The first clause in the third schedule provides for contributions to the support and relief of deaf, dumb and blind and indigent members of the Parsi or any other community. Clause 2 provides for the support and relief of persons of any race suffering from or rendered destitute on account of famine, etc. Clause 3 relates to paying over or contributing to the support of persons of any race, free gifts or donations for the purposes of education, for the performance of navjot and marriage ceremonies of poor Parsis, etc. Clause 4 relates to paying over or contributing to or towards the support and maintenance of hospitals, dispensaries and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Assistant Commissioner succeeded. Following the decision of the Supreme Court in Trustees of the Charity Fund v. Commissioner of Income-tax [1959] 36 I.T.R. 513; [1959] Supp. 2 S.C.R. 923 and of this court in Commissioner of Income-tax v. Trustees of Seth Meghji Mathuradas Charity Trust [1959] 37 I.T.R. 419, the Appellate Assistant Commissioner allowed the appeals and set aside the order of the Wealth-tax Officer, holding that the assessee was entitled to exemption from the levy of wealth-tax. The department took further appeals to the Income-tax Appellate Tribunal. The appeals were, however, dismissed. On applications made by the Commissioner, the Tribunal has drawn up the statement of the case and made this joint reference for the two assessment years referring to us the following question of law: Whether on the facts of the case the trust property is exempt from wealth-tax under section 5(1)(i) of the Wealth-tax Act? Section 5 relates to items of property in respect of which no wealth-tax is payable by an assessee. The material part thereof reads: 5. (1) Wealth-tax shall not be payable by an assessee in respect of the following assets, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he repose of the soul of the deceased members of the family of the settlor and of the settlor and his wife after their death. We find it difficult to accept the contentions raised by Mr. Joshi. When the trust deed is read as a whole, there can hardly be any doubt that the trust is of a public, religious and charitable nature. It is true that clause 5 authorises the trustees to pay the income of the trust properties to Parsi Anjuman Agiary Fund or to the Parsee Panchayat for certain religious ceremonies for the repose of the soul of the members of the settlor's family, as well as for the performance of the said ceremonies for the repose of the soul of the settlor and his wife after their death. The clause also authorises the trustees instead of handing over the amount to the Agiary Fund or the Parsee Panchayat, to expend the income themselves for the said purpose. The said ceremonies which are to be performed are Baj Raojgar, Muktad and other religious ceremonies. Now, it has been held by this court in Jamshedji Cursetjee Tarachand v. Soonabai [1907] I.L.R. 33 Bom. 122, that though these ceremonies are performed for the repose of the soul of a deceased individual, the performanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause 6 of the third Schedule authorises the trustees to make payments or contributions towards the support and maintenance of the relations of the settlor and/or his father irrespective of their financial condition. The argument of Mr. Joshi is that clause 6 speaks of persons falling under two categories to whom the trustees could in their discretion make payment towards their support and maintenance. The first class or category consists of the lenial descendants of the children of Pestonji Pardiwala (father of the settlor) and/or any or more of the relatives, wife, children and family of Jehangir Pestonji Pardiwala, his brother and sisters (for brevity's sake we would refer to the persons falling under this category as the relations ); and the persons falling under the second category or class consists of indigent persons of whatsoever creed or nationality who in the opinion of the trustee or trustees require support. As already stated, the argument of Mr. Joshi is that it is left to the discretion of the trustees to make payment or contribution towards the support and maintenance of the first category irrespective of their financial condition. It is only if the trustees d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire clause becomes meaningless, because then there would be no question of ascertaining as to who requires support and aid. The concluding clause could be consistently read only as governing the relations as well as indigent persons. The clause authorises the trustees to give aid to all indigent persons including his relations as well as his father's relations and other persons of whatever creed or nationality. However, a direction has been given that in considering the case of all indigent persons, preference should be given to the indigent relations of the settlor and his wife. The dominant object is to grant relief to the indigent persons by making payment or contribution towards their support and aid. The circumstance that a direction has been given that in considering the case of such indigent persons preference be given to the relations, does not affect the validity of the trust or does not in any manner derogate from the trust being one for public purpose of a charitable nature. This is the view taken by the Supreme Court in Trustees of the Charity Fund v. Commissioner of Incometax [1959] 36 I.T.R. 513 (S.C.). Mr. Joshi sought to distinguish the decision in this case wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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