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TMI Blog1962 (11) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... wakf was created on or about July 6, 1953. The relevant portions of the deed are as follows: The surplus out of the income of the Wakf shall be utilised on the following purposes and objects of the Wakf by the Trustees: 1. Out of the income of the Wakf to help the poor relatives of Haji Ahmedbhai Haji Kadar and in the absence of any such relatives to such poor from the Memon community residing in the same locality; 2. Out of the income of the Wakf to help the persons of the Mohmedan Sayed community and specially to poor of them; 3. Out of the income of the Wakf to help in the physical and intellectual education and to such schools giving such education, to students studying Urdu, Gujarati, English and to students of Technology by way of scholarships, books and Kuran Sharif; 4. Out of the income of the Wakf to help orphans, widows and disabled persons from the Memon community in cash or by giving clothes, etc; 5. Out of the income of the Wakf to help and maintain mosques and schools; 6. Out of the income of the Wakf to give financial help to poor persons and their children at the time of marriage; 7. Out of the income of the Wakf to provide for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lp to the poor, though they might be relations, being also an object of a charitable nature, it could not be said that section 4(3)(i) was not applicable. It was further contended that where there were several objects of a trust some of which were charitable and some noncharitable, and where the trustees had discretion to apply the income to any of the objects, it was not correct to say that the entire trust would fall and no part of the income would be exempt from tax. It was also stated that in fact there were no relations who were in need of any help and no help was actually given to any relations and therefore the trustees had not applied any portion of the moneys for helping the poor relations of Haji Ahmed Haji Kadar. It was also contended that under section 3 of the Mussalman Wakf Validating Act (6 of 1930), the provisions of this wakf deed were valid. The Tribunal held that the wakf itself might be valid and the department also did not dispute that position, but the real question was whether the income from the properties were exempt under the provisions of section 4(3)(i). The Tribunal held that the trustees could utilise the income of the wakf on all or any of the seven p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case, is dated 6th July, 1953. The deed is in Gujarati language. The English translation of that deed, which is annexed as annexure A to the reference paper-book, does not correctly translate the relevant provisions contained in the deed of wakf. The relevant portion of the translation set out in the statement of the case does not bring out the true effect of the original clause in Gujarati. Clause 7 of that deed of wakf provides that the surplus out of the income of the wakf shall be utilised by the trustees for the following purposes and objects of the wakf: (1) to help the poor. In doing so, help must first be given out of the income of the wakf to the relations of Haji Ahmed Haji Abdul Kadar Moosa who are poor. Thereafter, preference should be given to the members of the Memon Jamat residing in the mohalla of Haji Ahmed Haji Abdul Kadar who are poor. There are other provisions subsequently set out. The trustees are authorised to apply the income of the trust fund to any of the objects of the trust in such manner and to such extent as the trustees may, in their absolute discretion, deem fit. The question that has arisen for consideration is whether the income of this tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the management of the trust funds for all or any of the following purposes, that is to say: (a) the relief and benefit of the poor and indigent members of Jewish or any other community of Bombay or other parts of India or of the world either by making payments to them in cash or providing them with food and clothes and/or lodging or residential quarters or in giving education including scholarships to or setting them up in life or in such other manner as to the said trustees may seen proper..... Provided always that in applying the income as aforesaid the trustees shall give preference to the poor and indigent relations or members of the family of the said Sir Sassoon David, Bart., including therein distant and collateral relations provided further that in the application of the income of the said charitable trust fund the said trustees for the time being shall observe the following proportions, viz., that not less than half the income of the said funds shall at all times be applied for the benefit of the members of the Jewish community of Bombay only (including the relations of Sir Sassoon David, Bart., as aforesaid) and Jewish objects and particularly in giving donati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rised the trustees to select the parties in their absolute discretion for application of the income of the trust properties, was effected. It was only after the purpose or object was selected that the question of preference arose. Applying the test laid down by the Supreme Court to the facts of the present case, we have no doubt in our minds that the dominant object of the settlor in providing sub-clause (1) of clause 7 was to benefit the poor. The fact that a provision has been made that the relations of Haji Ahmed Haji Abdul Kadar Moosa out of the poor were to be helped first could not make any difference. The fact that it has been provided that the members of the Memon Jamal of the mohalla of Haji Ahmed Haji Abdul Kadar Moosa who were poor were to have preference, after the poor relations had been exhausted, would not equally matter. It may be that the relations of the settlors may not be poor. It may be that, in course of time, they may become extinct. But the trust would remain and would have to be carried out. What we have to consider is, what was the dominant intention. The trust was to be in operation so long as there were properties to which the trust could attach. In t ..... 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