9911796707
TMI Blog2004 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... (s) : M. S. SHAH., A. M. KAPADIA. JUDGMENT The judgment of the court was delivered by M. S. Shah J.-In this reference at the instance of the Revenue, the following question is referred for our opinion in respect of the assessment year 1981-82: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that public charitable trust had been validly created by the will executed by the deceased and as such exemption under section 5(1)(i) was allowable?" We have heard Mrs. Mona Bhatt, learned standing counsel for the Revenue. Though served, none appears for the respondent-assessee. The late Dr. T. D. Edel Behram had by his last will dated May 16, 1972, settled upon a trust all h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There could be no dispute about the legal proposition that the creation of a valid trust is a matter governed by the Indian Trusts Act, 1882. Sections 5 and 6 thereof are relevant and read as under: "5. Trust of immovable property. -No trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee. Trust of moveable property: No trust in relation to movable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee. These rules do not apply where they would operate so as to effectuate a fraud. 6. Creation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operties and stated that the executors of the will were to dispose of the immovable and movable properties and to spend the cash realised upon sale for charitable purposes, and the apex court held that the trust came into being when the executors converted the properties into cash and it was from the money so collected that the executors were to donate for charitable purposes. No such similar provision of the trust deed is brought to our notice which could attract the aforesaid reasoning of the apex court. In the facts of the instant case, the author of the trust settled upon the trust all his immovable and movable properties for the benefit of the aforesaid three institutions and, therefore, the trust came into being upon the death of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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