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TMI Blog1967 (9) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle trust in Suit No. 1205 of 1944 in this court, and by an order passed on the 15th November, 1944, the trusts were allowed to be amalgamated and a scheme framed. The scheme framed was entitled "consolidated scheme for the management of Bai Hirbai Rahim Aloo Paroo and Kesarbai Dharamsey Khakoo Charitable and Religious Trusts". That is the document which we are called upon to construe. After the amalgamation or consolidation of the two trusts they were throughout assessed as trusts till the year 1953 and had obtained the necessary certificate of exemption under section 4(3), but it was only after 1953, that the tax authorities began to hold that these were not trusts "wholly for religious or charitable purposes" as required by section 4(3)(i) and, therefore, the assessees were required to make returns. All the authorities who have dealt with the question, namely, the Income-tax officer, the Appellate Assistant Commissioner, "Q" Range, Bombay, and the Tribunal have held that the scheme settled did not create a trust which was wholly for religious or charitable purposes and as such its income was not entitled to exemption under the Income-tax Act. We are concerned in the present ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cur and pay such expenses in connection therewith as the trustees may think proper, and (3) out of the balance spend a sum not exceeding Rs. 12,000 per annum in the Sadavret Charities mentioned in the said Will of Hirbai and in the said deed of trust dated 28th March, 1889, in the way more specifically provided in clauses 12 and 12A hereof, (4) after deducting the actual expenses incurred for the purpose mentioned in sub-clauses 1, 2 and 3 if there be any balance of income the same shall be applied to or for the benefit of the poor Khojas of all the Jamats in Bombay in the manner more specifically provided in clause 13 hereof." We have quoted this clause in extenso because the sub-clause thereof which has given rise to the dispute has to be read in the context principally of the whole clause and also in the context of the other provisions of the scheme of management of the trusts. Sub-clause (c) of clause 9 when analysed provides for the following things : (a) the holding of an annual majlis or a meeting ; (b) the majlis should consist of the whole of the relations and acquaintances of Kesarbai ; (c) that there should be a feast given to them in Bombay ; (d) that the fea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is it mentioned in the will or in the scheme sanctioned by the High Court that any prayers had to be offered much less that the Fateha was to be recited. Moreover, the trustees were given absolute discretion by the impugned clause to spend as much as they liked in their discretion towards the object of clause (c) and therefore there was no limit to the expenditure that could be incurred for that purpose. The reasoning of the Tribunal was as follows : We have to see what sub-clause 2(c) of clause 9 denotes, whether it manifests an overriding intention of a religious and charitable nature. The holding of the Fateha ceremony is a religious purpose, but does this mean that the meeting that has to be held under clause 9(2)(c) is of this nature ? The holding of feasts in remembrance of Imam Hussein Saheb in the name of the husband of Kesarbai is not a religious object even under the personal law of the widow. In section 178 of the Mahomedan Law by Mulla, celebrating the death anniversaries of the settlor and/or the members of his family has been recognised as a religious purpose and as constituting a valid object of a wakf. A purpose may be religious so far as the personal law of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, medical relief, and the advancement of any other object of general public utility, but nothing contained in clause (i) ... shall operate to exempt from the provisions of this Act that part of the income from property held under a trust or other legal obligation for private religious purposes which does not enure for the benefit of the public. Now the contention on behalf of the assessee has been that the property of this trust was held under trust wholly for religious purposes. We are, therefore, not concerned with "charitable purpose" or the first part of the definition of the "charitable purpose" quoted above. It is also contended on behalf of the assessee that the income from the trust properties held under this trust were not "for private religious purposes which does not enure for the benefit of the public." This is precisely the point on which the Tribunal held that the trust was not entitled to the exemption which it claimed. Now, as we have said, the scheme of management of this trust was originally settled as we have said by an order of this court in Suit No. 1205 of 1944 passed on the 15th November, 1944. That order itself was passed under the powers of this cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said about the provisions of clause 9 at this stage. It will be noticed that sub-clauses (3) and (4) of clause 9 make similar and somewhat overlapping provisions for the expenditure of the residuary income of the trusts. The reason which has been given is that when the scheme of consolidation of the two trusts was sanctioned, the provisions in the two documents by which the trusts were created by each of the two sisters, were incorporated into the terms of the scheme of management and since the purposes and objects of both the trusts were similar and their main provisions were also similar, but there was some difference in the language because of the different drafting of the two documents all the terms of both the documents were kept intact, and the same language that the draftsman of each document used were incorporated in the document embodying the scheme of management. This is an important point to remember because it was urged that there is a contrast between sub-clauses (2)(b) and (c) of clause 9 in making provision for the remembrance of the anniversary of Imam Hussein Saheb. We shall advert to this difference a little later. In clause 12, to which reference has already b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deserving Khojas ; for the promotion and encouragement of education amongst poor Khojas ; for help to poor Khojas in industrial pursuits of which numerous and carefully compiled instances have been given. A mere perusal of these terms of the two trusts which were consolidated by the scheme of management sanctioned by this court makes it clear beyond doubt, in our opinion, that the dominant intention of the two ladies was to establish a religious and charitable endowment. Throughout the emphasis is upon the sect to which the settlors belonged, and in aiding the needy and poor and in order to aid such people considerable anxiety has been shown in the drafting of the terms of the document. Apart from these, the only other provisions are the provisions in clause 9 where emphasis is laid upon the giving of a feast in remembrance of the anniversary of the Imam Hussein Saheb. It is curious that each of the two sisters made similar provisions and yet there does appear some difference in the language used in sub clauses 2(b) and (c). The reason is obvious. The two documents were drafted at a considerable distance of time, one on the 11th February, 1881, and the other on the 12th April, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese words which we have just quoted indicate that it was a private object, namely, the commemoration of her husband's name, and that conclusion is also supported by the provision for feeding the relations and acquaintances of the settlors. We do not think we can construe sub-clause (c) of clause 9(2) in this manner. The dominant intention of that clause is, as we have shown, to hold an annual majlis or a meeting in remembrance of the anniversary of Imam Hussein Saheb, who is the subject of the highest veneration by the Khojas to which sect Kesarbai belonged. The provision that the celebrations should be associated with the name of her husband does not, in our opinion, take away from the main provision of the sub-clause. We may also emphasise here that the words used are "majlis" and, as we shall show, a majlis is essentially a religious meeting in the context in which it is used here. No doubt, today the word "majlis" also implies any educational or cultural purpose, but in the context in which it is used, namely, "remembrance of the anniversary of the Imam Hussein Saheb", it can only mean that it is a religious meeting. We may now usefully refer to some of the cases which were c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ostle of God compose the Panchton (or Pentad) of the Ala Saba, or Holy Family of Islam." Now, this event happened on the 10th day of the month of Moharram and that therefore is, so far as the Shias are concerned, one of the sacred days in their religion. No doubt the Imam Hussein is also held in veneration by the Sunnis, but so far as the Shias are concerned he is the subject of their highest veneration and worship. A decision which is found in Ram Churn Law v. Shahibzadi Fatima Begum shows the importance of the two Imams, Hassan and Hoossein, for they are the subject of great religious endowments of the Muslim in both the sects, but the Imam Hassan is the subject of particular veneration by Shias. The decision in Ram Churn Law v. Sahibzadi Fatima Begum, at page 33, establishes that, where a trust property is dedicated to the service of the Imam Hassan and the deed provides that the rents and profits of the property shall be appropriated "to the due and proper observance of the annual Mahomedan festival of the Mohurrum", it was held to be for a public and religious purpose and a valid wakf. In that case Mr. Justice Imam observed at page 34, column 2 : "Apart from the help to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper---or sweets or ...... The food is distributed indiscriminately to the poor and well-to-do Mahomedans who are present. In most cases these ceremonies are performed at private houses, but if performed at a mosque, the expenditure is on a larger scale and includes a fee for the learned man who performs the recitation and the cost of flowers and illuminations." This passage would indicate that even though the commemoration may be the death anniversary of a near relation or may be of the Imam himself, feasting does take place and sweets are distributed and the sweets or the food are not necessarily distributed only among the poor. They may be distributed equally among the poor and the well-to-do. The feature, therefore, that there is to be a feast or that the feast is to be at a private house cannot detract from the benefaction, nor would it show that it was for that reason not a public religious endowment. Yet that was one of the main contentions of Mr. Joshi in the present case. He particularly emphasised the two features of sub-clause (c) of clause 9(2), namely, that in the present case a meeting was to be of the whole of the relations and the acquaintances and, secondly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney may be expended on the reading of the Koran in private places as well as in public places does not detract from the religious, pious and charitable character of the object. The fifth object is the maintenance of poor relations and dependants. The decision of the Allahabad High Court in Mukarram Ali v. Mt. Anjumanunnissa Bibi is directly in point here. In that case it was held that a wakf created for the reading of Fateha and for charitable purposes including the maintenance of the founder's poor relations and dependants was valid according to Mohammedan law." This is, in our opinion, a clear authority for holding that where, as here, the main purpose of the endowment is the remembrance of the anniversary of the Imam Hussein Saheb and the holding of an annual majlis on that occasion to celebrate it, there must necessarily be prayers offered and the reading of the Holy Koran and whether the reading is in public or private, it would still be a valid purpose of a public religious endowment. In the view that we take and upon the authorities which we have discussed we hold that sub-clause (c) of clause 9(2) despite the provisions for the holding of a meeting of the relations and ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of any religious ceremonies. Therefore, though it is not so expressly stated, it seems to us that it is necessarily implied in this clause that the usual ceremonies should take place and that as we have shown would dearly be a valid purpose of a public charitable trust. In a case which arose before this court (Advocate-General of Bombay v. Yusuf Ali), a provision was made for Jamat feast on the 21st of Ramzan and a similar contention was raised that feasting as such could not be a valid object of a public religious endowment. In that case it was also established that occasional feasts used to be given on the birthday of the Mullaji Saheb and in that connection Marten J. observed at page 1100 : "Taking the specified objects which have been proved in this case, it is clear that the upkeep of the tomb and mosque are both charitable objects. So I think are the Jamat feasts on 21st Ramzan. These are not disputed, nor are the occasional feasts on the Mullaji's birthday .... I regard these ceremonies and feasts as religious celebrations by the whole community in honour of a saint of theirs. They tend I think to the advancement of religion in their community. In my opinion they are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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