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TMI Blog1951 (9) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The contention was rejected by the Income-tax authorities. The material facts are as follows:- A trust called Gordhandas Govindram Family Charity Trust was created by an indenture of trust executed on 11th June, 1941, setting apart a sum of ₹ 11 lakhs out of the joint family property of Gordhandas Govindram of Navalgadh in the Jaipur State. The trustees under the deed are (1) Mr. Govindram Gordhandas Seksaria, (2) Mr. Ramnath Gordhandas Seksaria, (3) Mr. Makhanlal Gordhandas Seksaria, (4) Mr. Subhkaran Bholaram Seksaria, (5) Mr. Kanhaiyalal Onkarmal, (6) Mr. Baijnath Motiram, (7) Mr. Prahladrai Birjlal and (8) Mr. Madanlal Ramkumar. The first four of these persons are members of the Hindu undivided family. The trust deed dated 11th June, 1941, forms part of the case and is annexure 'A'. Clause 2 of the trust deed provided as follows:- "The Trustees shall hold the Trust Estate specified in the said schedule hereunder written upon trust to collect, get in and recover the interest, dividend and income thereof and in the first place to pay all outgoings in respect thereof including the wages of servants to look after the said Trust Estate and apply the balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame or names of a particular individual or individuals, and to associate the name of the person or persons with the institution to be established with the help of the trust estate and the other trustees were bound to observe, carry out and comply with such directions. The said clause authorized the exercise of these powers by the senior member of the joint family after the demise of Govindram Seksaria. 3. On a construction of the said provisions of the trust deed, the Tribunal held that the primary object of the trust was to confer benefit on the members of the family of Gordhandas Govindram and their descendants, and the charity was only a subsidiary object inasmuch as the surplus only, if any, remaining after utilising the income for the benefit of the family members was to go to charity. In the opinion of the Tribunal, therefore, the property was not held under trust wholly for charitable purposes. The Tribunal found that under the provisions of the trust dead the trust property was not held in part for charity and no portion of the income of the trust was specifically set apart. Apart from the provisions of the trust deed, no portion of the income of the trust was in fact spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (d) provides for payment of marriage expenses to any poor male descendant of the settlor. Sub-clause (e) provides for the marriage expenses of any poor female descendant of the settlor. The subclauses that follow thereafter provide for payment of money to the poor male or female descendants of the other members of the Seksaria family. Having exhausted all the members of the family, both for the purposes of maintenance and for marriage expenses, sub-clause (r) provides for the payment of ₹ 5 per month as and by way of maintenance to any poor male Vaishya Hindoo who may be deserving of help, and sub-clause (s) provides for a similar payment to be made to any female Vaishya Hindoo for maintenance who may be deserving of help. Then sub-clause (t) provides for payment of ₹ 500 as marriage expenses of any poor male Vaishya Hindoo who may be deserving of help and sub-clause (u) provides for the payment of ₹ 500 as marriage expenses of any poor female Vaishya Hindoo who may be deserving of help. Clause 4 of the trust deed provides, for the disposal of the surplus of the income and this provision is that the trustees may apply the balance or surplus in their absolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the family of the settlor were to be the first objects of charity, both in respect of maintenance and also for marriage expenses. It is only after all the members of the family were exhausted that a section of the public, the Vaishyas or other Hindoos, would come in for benefit under the trust. It is not even, as Sir Jamshedji contended, a preference given to the members of the settlor's family. As I understand "preference" it means that all other things being equal you prefer a person who satisfies certain other qualifications. But the object of this trust is not of preferring members of the settlor's family if the conditions were alike when compared to the poor members of the Hindoo community. The whole intent and object is that the trust should constitute a first charge in favour of the poor members of the settlor's family. It is only when that first charge is satisfied that the members of the public may come in for any benefit under the trust. In my opinion the benefit which is reserved for the public under the trust deed is much too remote and much too illusory for being held that this is a trust which has its object, "general public utility." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udor on Charities as unsupported by authorities, viz., "bequests for the education of the donor's descendants and kinsmen at a school or college were valid;" and with considerable hesitation and reluctance they came to the conclusion that trusts in favour of poor relatives of the donor must be considered a valid charitable trust that being the law at that date. But they pointed out that the principles of law were anomalous and were not to be extended to apply to different class of cases. Therefore to-day in England it is only in cases of poverty that a charitable trust may be restricted to members of one's family and with regard to other classes of charity English Courts have refused to intend that principle. Turning next to the Indian cases there is the leading case of Arur v. Commissioner of Income-tax [1945] 13 I.T.R. 465. There the trust was for awarding scholarships to the members of Arur family and there was a provision giving discretion to the trustees to give 50 per cent of the surplus for the purpose of awarding scholarships to the deserving members of the settlor's family. This trust was held not a valid charitable trust inasmuch as it did not discl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bare necessities of life. You give him what he cannot possibly do without. But, marriage is a luxury which need not be indulged in by every one in this country and at least in the year 1951 of Grace it is not possible to say that a poor man cannot do without matrimony and that matrimony is a bare necessity of life and you must provide funds which may help him to get married. Sir Jamshedji has drawn our attention to the view which is held of the sacred character of marriage in this country. I do not wish to say anything which may be disparaging to that view but we must construe "charitable object" as the object for the relief of poverty and by no standard, either in India or in England, can it be said that giving money for the marriage of individuals is by itself a charitable object. Reliance was placed on a decision of an English Court in In re Cohen: National Provisional and United Bank of England v. Cohen*. There the charity which was considered was the power given to the trustees to select a deserving Jewish girl and pay such selected girl on her marriage a certain amount as dowry and that charity was held good amongst other grounds on the ground that the settlor in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of determining whether there is a charitable purpose the cases decided in England holding that any trust for bringing about marriages of girls in the Jewish or other communities is charitable are no help in determining the particular point before us. With regard to the rest of the trust, as the trust deed stands I read it as casting an obligation upon the trustees to make certain payments specified therein to poor descendants of the settlor's family whether or not such poor descendants are as deserving of help as other members of the Vaishya community. This, therefore, is not in my opinion, a case of preference being give to the descendants of the settlor's family at all; but these descendants so long as they are poor--whatever their degree, of poverty--exclude other members of the community even though they may be poorer than the poor descendants of the settlor's family. With respect to the observations of Kania, J., (as he then was) in the case of Arur v. Commissioner of Income tax [1945] 13 I.T.R. 465, to which reference has already been made by the learned Chief Justice, I do not agree that a settlement in which a preference is given to the poor kindred of the set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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