# [1977] 2 S.C.R. 483

- **Citation:** [1977] 2 S.C.R. 483
- **Court:** Supreme Court of India
- **Decided:** 1976-12-17
- **Bench:** H. R. Khanna, V. R. Krishna Iyer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1977-2-s-c-r-483-7062
- **Pages:** 20

## Headnote

Income Tax A.ct 1922-Sec. 4\3) (I), 22(2)-Trust for religious and charitable purposes-Whether d~duction to deity or vesting in. trustees-If income of
deity-Charge and diversion of income at source.
A
B
, Indian Succes.1ion Act, 1925-Sec. 87-Will-Construction of a Will of a
C
religious Hindu drafted by English solicitor-Whether court must look into the
real intention.
Raja Rajendra Mullick Bahadur of Calcutta executed his last will
on
21-2-1887. The author of the Will was a religious minded Indian, the draftsman of the document was John Hart, an English Solicitor. The Will open
with the words 'I hereby dedicate and make debutter my Thakurbaree'.
The
Income Tax Officer issued notices requiring filing of the returns
against the
Deity Thakurbaree. . On behalf of Deity, a nil income return was filed under
D
s. 22 (2) of the Indian Income Tax Act, 1922 for the assessment years 1956-57
and 1957-58. In connection with the writ petition filed in the High Court for
the proceedings in respect of assessment years 19~5-56 it was conceded by the
Revenue that a part of the income of the assessee which would be proved before
the Income Tax authorities to have been applied in 'connection with feeding of
·the poor, subscription to other charities enuring for the benefit of the public
would b' exempted under s. 4(3)(i) of the Income Tax Act, 1922.
The Revenue contended that on a true construction of the said will
there
E
was a complete dedication ot the property to the Deity and, therefore, the income
arising from the said property was taxable in the hands of Deity. It was,
however, contended by th~ assessee that the remuneration of the trustees and
the allowances to the widows of the deceased trustees as provided in the Will
created a charge on the income of the trust estate and should therefore be treated as diversion of the income of the trust before it accrued in the hand of the
trustees.
The Income Tax Officer taxed the income of the Deity deducting
therefrom such amounts as were conceded before the High Court in respect of
F
the prior year.
The appeal preferred by the assessee was dismissed bv the
Appellate Assistant Commissioner. Before the Tribunal, the Revenue substan-
,~
tially succeeded.
Thereafter, the Tribunal referred 4 questions of law to the High Court,
two at the instance of the assessee and two at the instance of the Revenue.,
The High Court on a meticulous consideration of the entire Will
decided
against the Revenue and took the view that reading the Will as a whole the
entire beneficial interest in the properties did not vest in the assessee Deity.
G
Assessee Deity was not the owner of the properties and, therefore, the only
income which could be subiected to income tax in the hands of the assessee
would be the beneficial interest of the said Deitv under the' Will which would
be the expenses incurred for Seva Puia of the Deity and for the various religious
ceremonies connected with the said Deity and the value of the residence of the
Deity in the temple.
Allowing the appeal,
B
HELD : 1. The Will represents oious Bengali Wishes and disposition but
drafted in the hands of an English Solicitor. The court's function in such an
A
B
c
D
484
SUPREME COURT REPORTS
[1977] 2 S.C.R.
ambiguous situation is to steer clear of the confusion imparted by the diction
and to read the real intention of the testator. The courts discerning loyalty is.
not to the formalitistic language used in drawing up the deeds but to
the
intentions which the
dispon~r desired should take effect in the manner
he
designed. The real question is whether the testator created an
ab>o.ute
or
partial debutter or was there no dedication to the idol but a vesting of the legal
estate in the trustees. The use of the words like trust, trustees and Shebaits
can lend support to the contention that the legal estate vested in ttlle tru,tees.
However, the court has to push aside the English hand to reach at the Indian
heart. We are construing the Will of a pious Hindu aristocrat

## Text

_Characters 0–39,957 of 59,670. This is a partial read: ask again with offset=39957 for what follows._

/
483
C.I.T. WEST BENGAL III, CALCUTTA
\\
SRI JAGANNATII JEE (THROUGH SHEBAITS)
December 17, 1976
[H. R. KHANNA AND V. R. KRISHNA IYER, JJ.]
Income Tax A.ct 1922-Sec. 4\3) (I), 22(2)-Trust for religious and charitable purposes-Whether d~duction to deity or vesting in. trustees-If income of
deity-Charge and diversion of income at source.
A
B
, Indian Succes.1ion Act, 1925-Sec. 87-Will-Construction of a Will of a
C
religious Hindu drafted by English solicitor-Whether court must look into the
real intention.
Raja Rajendra Mullick Bahadur of Calcutta executed his last will
on
21-2-1887. The author of the Will was a religious minded Indian, the draftsman of the document was John Hart, an English Solicitor. The Will open
with the words 'I hereby dedicate and make debutter my Thakurbaree'.
The
Income Tax Officer issued notices requiring filing of the returns
against the
Deity Thakurbaree. . On behalf of Deity, a nil income return was filed under
D
s. 22 (2) of the Indian Income Tax Act, 1922 for the assessment years 1956-57
and 1957-58. In connection with the writ petition filed in the High Court for
the proceedings in respect of assessment years 19~5-56 it was conceded by the
Revenue that a part of the income of the assessee which would be proved before
the Income Tax authorities to have been applied in 'connection with feeding of
·the poor, subscription to other charities enuring for the benefit of the public
would b' exempted under s. 4(3)(i) of the Income Tax Act, 1922.
The Revenue contended that on a true construction of the said will
there
E
was a complete dedication ot the property to the Deity and, therefore, the income
arising from the said property was taxable in the hands of Deity. It was,
however, contended by th~ assessee that the remuneration of the trustees and
the allowances to the widows of the deceased trustees as provided in the Will
created a charge on the income of the trust estate and should therefore be treated as diversion of the income of the trust before it accrued in the hand of the
trustees.
The Income Tax Officer taxed the income of the Deity deducting
therefrom such amounts as were conceded before the High Court in respect of
F
the prior year.
The appeal preferred by the assessee was dismissed bv the
Appellate Assistant Commissioner. Before the Tribunal, the Revenue substan-
,~
tially succeeded.
Thereafter, the Tribunal referred 4 questions of law to the High Court,
two at the instance of the assessee and two at the instance of the Revenue.,
The High Court on a meticulous consideration of the entire Will
decided
against the Revenue and took the view that reading the Will as a whole the
entire beneficial interest in the properties did not vest in the assessee Deity.
G
Assessee Deity was not the owner of the properties and, therefore, the only
income which could be subiected to income tax in the hands of the assessee
would be the beneficial interest of the said Deitv under the' Will which would
be the expenses incurred for Seva Puia of the Deity and for the various religious
ceremonies connected with the said Deity and the value of the residence of the
Deity in the temple.
Allowing the appeal,
B
HELD : 1. The Will represents oious Bengali Wishes and disposition but
drafted in the hands of an English Solicitor. The court's function in such an
A
B
c
D
484
SUPREME COURT REPORTS
[1977] 2 S.C.R.
ambiguous situation is to steer clear of the confusion imparted by the diction
and to read the real intention of the testator. The courts discerning loyalty is.
not to the formalitistic language used in drawing up the deeds but to
the
intentions which the
dispon~r desired should take effect in the manner
he
designed. The real question is whether the testator created an
ab>o.ute
or
partial debutter or was there no dedication to the idol but a vesting of the legal
estate in the trustees. The use of the words like trust, trustees and Shebaits
can lend support to the contention that the legal estate vested in ttlle tru,tees.
However, the court has to push aside the English hand to reach at the Indian
heart. We are construing the Will of a pious Hindu aristocrat whose faith in
.ritual performances was more than matched by his ecumenical perspective.
Secondly, the sacred sentiment writ large in the Will is his total devotion and
surrender to the family Deity Shri Jagannathjee. It looks like doing violence
to the heart of the Will if one side-steps the Deity to the status of but one of
the beneficiaries. The Will in the forefront declares the dedication to !he Deity.
The expression. trust, trustees and shebaits were indiscriminately used.
The expressions are uncertain of the precise import of these English legal terms in the .
Indian context. The idol was, therefore, the legal owner of the whole and
liable to be assessed as such.
[485A, B, C, 490F, 491B, C-D, 497D, 499E]
2. The court negatived the contention that even if the property vested in
the Deity, all the amounts to be spent on the Shebaits and the members of their
family on the upkeep of horses and carriages and repair of buildings etc. were
charge on the income and, therefore, the same did not and could not come
into the hands of the Deity as his income and could not be taxed as such. If
the Shebaits received rent and interest to the extent of these other disbursements they received the amounts merely as collectors of rents etc. and not as
receivers of income. ''rhe terms in which the directio'IIS are couched do not
divest the income at the source but merely direct a Shebait to apply the income
received from 1'he debutter properties for specified purposes. [ 499E-H, 501F-0]
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1682-1683/
71.
E
(From the Judgment and Order dated the 14th May 1969 of the
F
G
H
Calcutta High Court in I.T. Ref. No. 60 of 1968)
G. C. Sharma and R. N. Sachthey, for the appellant
B. Sen, S. K. Banerjee and P. K. Mukherjee, for respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J .-The fiscal-not the philosophical-implications
of Jesus' pragmatic injunction 'Render to Ceasar the things that are
Caesar's, and to God the things that are God's-fall for jural exploration in these appeals by special leave, the appellant being the Union
of India represented by the Commissioner of Income-tax, West Bengal,
and the Respondent, Sree Jagannathji and the subject-matter
the
taxability of the deity Jagannathji by the State under the Income-tax
Act, 1922, beyond the admitted point.
To appreciate the exigibility
issue, we have to flash back to 19th Century Bengal and the then
prevailing societal ethos of affluent Hindu Piety, and we find ourselves
in the spiritual-legal company of Raja Rajendra Mullick, at once
holy and wealthy, who, in advancing years, executed a comprehensive will to promote his cherished godly wishes and to provide for his
secularly dear cause and near relatives.
The construction of this
testamentary complex of dispositions and the location of its destination are the principal exercises in these appeals.
..
,.
c. I. T. w. BENGAL v. SRI JAGANNATH JEE (Krishna Iyer, !.) 485
Raja Rajendra Mullick Bahadur of Calcutta executed his last will
and testament on 21 February 1887.
While the author of the will
was a Bengali brahmin of the last century, the draftsman of the document was John Hart, an English solicitor. While the author's wishes
are usually transmitted into the deed by the draftsman, the diction
and accent are flavoured by the draftsman's ink.
So it happens that
this will represents pious Bengali wishes and dispositions-but draped in an English Solicitor's legalese.
The Court's function in such
· an ambiguous situation is to steer clear of the confusion imparted
by the diction and to reach the real intendment (of the testator) .
Such an essay in ascertaining the true intent of Raja Rajendra Mullick
if fraught with difficulties and our guideline has to be to pick it
up
from the conspectus of clauses-rather than from particular expressions or isolated features.
Only the totality tells the story of the
author's mind as he unburdened himself of his properties for causes
and purposes dear to his heart.
The Court's discerning loyalty is
not to the formalistic language used in drawing up the deed but to
the intentions which the disponer desired should take effect in the
manner he designed.
This back-drop of observations made, we proceed to a broad delineation of the actual provisions.
The munificent testator had enormous estates, lavish charity, piety
aplenty and a large family.
So he trifurcated his assets as it were,
previded for religious objects, eleemosynary purposes and members
of his family.
The last was distinctly and separately dealt with
and we are not concerned with the bequests so made.
But the first
two were more or less lugged together and ample properties earmarked
therefore.
How did he engineer into legal effect these twin purposes ?
Did he create an absolute debutter of these properties, totally dedicating them to the deity whose devotees he and his father were, coupled
with several directions, addressed to the shebaits, for application of the
income for performance of stated pujas, execution of public charitable
projects and payment of remuneration for sheba plus liberal grants
and facilities to the sons and widows of sons who were objects of his
bounty?
Or did he really create a trust in the sense of the English
law vesting the whole estate in trustees saddled with obligations to
expend the income for enumerated
items, godly and
philantrophic,
cr~ati!lg !mt a partial debu!ter? This is the key question calling for
~d1ud1cat10n but an alternative but interlaced issue also arises. Assummg that a total debutter had been created, did the will contain directions for expenditure which siphoned off the income, as it accrued for
specifi~d objects and entities in such manner that by such over-riding
d1vers1on at the source, such income did not get into the hands of
Lord Jagannath qua His income but reached Him merely as collector
of those receipts to be disbursed for meeting those paramount claims
ai.1d charged for those destined uses ? Or could it be the true meaning
of the clauses that the whole income was to be derived bv the deity
but later to be applied by the human agencies representing Him for fulfiling objects, secular and sacred?
A skeletal picrure of the complex of provisions of the will has to
be projected now for a better understanding of the pros and cons of
A.
B.
C:
E.
F·
G.
B
c
D
F
G
486
SUPREME COURT REPORTS
[1977] 2 S.C.R.
the controversy. The will opens with the words : 'I hereby dedicate
and make debutter my Thakoorbaree' and mentions a mansion which
is to be the abode of his God.
'I hereby give, dedicate and make
dabutl'ar all the jewels. .. . hereto-fore used, for the worship of the
Thakoors. . . is another racital whereby
valuables are
dedicated.
These are for direct use and both the Lord's mansion and the Lord's
adornments yield great spiritual bliss but no secular income.
Prima
facie, the language is unmistakable and a full dedication and, argues
Shri Sharma for the Revenue, the creation of absolute debutter is an
unchallengeable inference.
Equally indisputable is the character of
the last of bequests to his sons (save one who has been disinherited)
and widows of deceased sons and these are admittedly out of the area
of dispute before us. But in between lies the estate
(including
securities) which yields high income and is disposed of in terms which
lend themselves to contrary constructions, marginal obscurity and
conceptual mix-up of ideas borrowed from English and Hindu law.
'I do hereby give, dedicate and make debutter in the name and for the
worship of my Thakoor Sn~ Sree Jagannath Jee the following properties'-so run the words which are followed by a list of properties and
a string of directions addressed to 'shebaits and trustees' or 'shebaits or
trustees' or these two indifferently and indiscriminately mentioned
singly.
He even directed a board of trustees to be constituted: in the
event of male heirs failing, to take' over shebaitship and execution of
the trusts-and here and there referred to trusts under the deed. Nor .
were all the incomes to be devoted to pooja.
His cultivated and compassionate m:ind had many kindly concerns and finer pursuits.
The enlightened donor appears to have had an aristocratic and
aesthetic flair for promoting the joy of life and a philanthropic passion
to share it, even posthumously, with the public at large.
His charitable disposition seems to have overpowered his love of castemen
and his kindness for living creatures claimed a
share of his
generosity.
These noble and multiple instincts persuaded him
to
make an art collection which could be reckoned as among the best
an individual could be proud of anywhere in the world and these i:;aintings and sculptures, he directed, shall be kept open for public delight,
free of charge.
He maintained a glorious garden which he wished
should be kept in fine trim and be hospitable for any member oif the
public who liked to relax in beautiful surrounds.
His compassionate
soul had, in lofty sentiment of fellow-feeling,
collected birds
and
non-carnivorous animals. But, after him, the aviary and meanagerisa
were to be taken care of and lovers of birds and animals were, according
to his testamentary direction,, permitted to seek retreat and pleasure
among there natural environs.
Of course, he rewarded his sons and
widows sumptuously, the lay-out on the rituals of worship consuming
but a portion' of the total income.
At this stage, the litigative journey may be sketched to indicate how
H
the dispute originated, developed
and gained access to this Cou!t,
The story of this tax entanglement began nearly two decades ago with
the I.T.0. issuing notices and the assessee deity responding with 'nil'
returns under s. 22(2) of the Indian Income-tax Act, 1922 for
the
_j
'
•
c. L T. w. BENGAL v. SRI JAGANNATH JEE (Krishna Iyer, 1.)-~481 -.
a~w-:nent y= 1956-57 ·and 1957-58.
A portion however was, by
l~th.uAte concession of the Income Ta.; Department_, carved out of the
total income as non-taxable.
Accordmg to the High Court.·
"When the proceedings for the assessment year . 1955-56
were pending before the Income Tax Officer, the assei;see
had filed an application under Art.
226 of the Constitution of India and had obtained an interim stay against the
said proceedings.
It appears that on the 9th October 1961
in t=s of the settlement arrived at between the Income
Tax Department and the assessee the interim stay of proceedings was vacated.
It was recorded in the said . order
that part of the income of tho assessee which would be proved
before the Income Tax Authorities to have been applied in
connection with (a) feeding of the poor, (b) subscription to
other charities enuring for the benefit of the public would be
exempted under s. 4(3) (il of Indian Income-tax Act, 1922."
We
regard this stand of the Revenue. as CoIT"..Ct in the light of the
provisions of s.4(3) (i) and hold, in /imine, that whatever tho outcome
of the contest, the amounts spent on poor feeding and oiher public
charitable purposes are outside the reach of the tax net and are totally
exempt.
We may, in fairness, stato here that counsel for the Revenue,
Shri Sharma, rightly agreed that the correct legal position, o~ a sound
· understanding of s.4(3) (i) of the Act, was that tl1eso charitable expenditures were totally deductible from the computation for fixing the tax.
Let us continue the later developments.
For assessment for the
year 1956-57 the Income-tax Officer was of the opinion, on tha con-
•truction of the said will, that besides directions for spending amounts
on charitable objects, thewill had also provided for payment of certain
fixed allowances to the acting shebaits as well as. the widows of the
deceased shebaits, maintenance of horse-drawn carriages and motor
cars for the use of the shebaits, medical aids to the •hebaits, and the
members of their families, expenses on account of Srardh caremony
of the ancestors of the shebaits and other private charities.
On behalf of the a<£essee it was claimed before the ITO that the remuneration
of the trustees and the allowances to the widows of the deceased trustees
as
provided in the will created a charge on the income of
the Trust estate and should therefore be treated as diversion
of the income of the trust before it accrued in the hands
of the trustees.
The ITO rejected that contention.
He held that
reading the will as a whole it was clear that the remuneration to the
shebaits and the allowances to the widows were merely o.pplicatioiis
of the trust income and as such not deductible.
According to the·
ITO, under the will, the shebaits and trustees were to collect
the
in~me of the whole debutter property in the first instance and after
paymg the gove=ent revenues and taxes and rates and other outgoings, perform the puja and the other ceremonies for the worship
of thel family deity and therefore spend amounts on charitable and
public purposes and lastly to pay the rcmnneration, allowances and
15--!546SCI/76
/
A
B
c
nE
F
G
H
A
B
c
D
Fr
F
G
H
488
SUPP.EME COURT REPORTS
[1977} 2 S.C.R.
private donatiom.
The ITO therefore determined the income
of
the trust est.ate under ss. 9 and 12 of the India11 Income Tax Act,
1922 and computed income from property at Rs. 1,94,377 /- and
income from other sources at Rs. 97,248 makin3 a
total of Rs.
2,91,625 /-.
From the above he deducted the amounts spent on
charitable objects such 3! feeding of the poor, maintenance of art
gallery and managerie for birds and non-carnivorous animals.
A
sum of Rs. 1,32,023 /- was subjected to tax for the assessment year
1956-57.
The ITO followed the same principle for the assessment
year 1957-58 and determined the assessable income at Rs. 1,06,067/,
The assessee preferred appeals before the Appellate Assistant Commissioner, who passed a consolidated order on November 25, 1963
dismissing the assessee's appeals on all the grounds.
On appeal to the Tribunal, a full legal debate followed and, while
the Revenue won substantially, some items more were held exempt on
the holding that the direction contained in the will for the expenditure
on the perfornmnce of Sradh and other ce:remonies for the spiritual
benefit of the testator and his ancestors must also be held to be obligations created by the testator which the trus~ or the shebaits were
obliged to discharge before applying the income for the benefit of the
deity. Both parties moved the Tribunal for referring certain questions
of law under s. 66(1) and the sequel was a reference of two questions
at the instance of erach.
The four questions may be set out as the
starting point of the discussion :
" ( 1) Whether on a proper comtruction of the will of the
late Raja Rajendra Mullick dated 21st February 1887, the
Tribunal was right .in rejecting the assessee's cli:im that the
only incomes which could be subjected to income-tax in the
hands of the deity Sri Sri Jagannath Jee are the beneficial
interests of the said deity under the terms of the will as represented by the expenses incurred by the shebaits for the daily
Seva Puja of the deity and the performance of the various
religious ceremonies connected with tho said deity as mentioned in the will ~·
(2) If the answer to the above: question be in the positive,
whether on the facts and in the circumstances of the case and
on a proper interpretation of the terms of the will of the late
Raja Rajendra Mullick Bahadur, the Tribunnl was right in
holding that the expenses incurred for payment of remuneration to the shebai~:, and the monthly allowances paid to the
widows of the deceased shebaits, as also the expenditure incurred for maintaining horses, carriages or motor cars for the
use of shebaits concerned and the annual value of such part
of the debutter property as is being used by the shebaits and
their families for the purpose of their residence, all in terms
of the aforsaid wil~ could be included in the total income of
the assessee in this case ?
(Questions referred by assessee)
j •
,
•
c. I. T. w. BENGAL V; SRI JAGANNATH JEE (Krishna Iyer, !.) 4811
( 3) Whether, on the facts and in the cir~umstanc~ of. the
case and on a proper construction of the will of Raia Ra1endra Mullick executed on the 21st February 1887 the Tribunal was right in holding that. the surplus <?f the .income ?f
the estate after defraying the expenses mentwned m the said
will was held in trust for charitable purposes and was thus
exempt from taxation under s.4(3) (i) of the Indian Incometax, Act 1922 ?
( 4) Whether, on the facts and in the citcumstances of! the
case
and
on a
proper
construction
of
the
aforesaid will the tribunal was right in holding tJiat the
amounts spent for performing Sradh and other ceremo~ie~ for
the Spiritual benefit of the testator as well as subscnptions
and donations to charitable societies and for charitable
purposes were diverted by an overriding title and was accordingly to be excluded from the total income of the Deity ?"
~Questions referred by the CIT)
A
B
c
The High Court, on a meticulous consideration of the entire will,
0
decided against the Revenue on tho spinal issue and took the view
that
"reading the! will as a whole we are of the opinion that the
entire beneficial interest in the properties did not vest in the
assessee
deity.
The assessee deity was not the owner of
the properties.
Therefore the only income which could be
subjected to income tax in the hands of assessec would be the
beneficial interest of the said deity under the will, which
would be expenses incurred for the seva puja of the deity
and for the various religious ceremonies connected with the
said deity and the value of the residence of the deity in the
Temple."
The back of the State's contention was thus broken but, even though
vanquished, by special leave it sought to agitate in appeal the case that
the testator had created an absolute debutter of the whole estate, and
not a trust with estate vested in the trustees, that the directions given
to the 'shebaits and trustees' were mere mandates for application of the
income in the hands of the deity and not over-riding diversion at the
source and so all the receipts, save what had been excluded by the
officer, were exigible to tax.
Although it may not be strictly pertinent as a circumstance to spell
out the intention of the testator, it may be of value as background
material to have a sample break-up of the figures of expenditure Jaid
E
F
G
H
490
SUPREME COURT REPORTS
[1977] 2 S.C.R.
A out in fact in one of the assessment years. We give the actuals for
1956-57 :
B
c
0
E
F
H
(I) Expenses incurred for the poojas specified under the will . 4,637 /-
(2) The money laid out on feeding the poor
78,295/-
(3) The cost of maintaining the art gallery
36,963/-
(4) Upkeep of the aviary and menagerie
(5) Cost of keeping the garden trim .
(6) Other miscellaneous charges
(7) Expenses laid out on the shebaits and trustees, their residence and maintenance of the horse-drawn carriages etc
13,263/-
2,979/-
4,014/-
66,254/-
Rs.
It is fair to comment that, even making allowance for annual
variations, price fluctuations and change in circumstances, the, pujas
consume but a small fraction, that public charitable pcrposes bulk
prominently in the budgeted expenditure and that the sums spent on
the 'shebaits and trustees' are liberal enough to exceed prudent reward
for services.
To set the record straight, it must be stated that a preponderant part of the income was spent on general public charitable
causes like poor feeding, art gallery, aviary, menagerie and keeping a
garden.
Together with the cost of the rituals the budget was dominently religio-charitable.
These facts have no bearing on the construction of the will but invests the perspective with a touch of realism.
We may now tackle the crucial problem in the case-the decoding
of the will to discover the repository of the gift.
Did the testator
create an absolute or partial debutter?
Or was there no dedication
to the idol but a vesting of the legal estate in the trustees (in the
sense of the English law) with figuciary
obligations to expend for
specific purposes.
Shree Jagannathjee ranking as one among the
recipients of his benefactions ?
The use of words like 'trusts', 'shebaits and trustees' has lent muscle to this logomachic exercise but we
have to push aside the English hand to reach at the Indian heart.
The principles governing the situation are those which rulings of
courts, imbibing the Indian ethos, appreciating tl1e Hindu sacred sentiments and-applying the law of religious and charitable trusts gathered
from ancient texts, have crystallised into an informal code.
The
passage of decades after the enactment of the Constitution has not succeeded in persuading Parliament into legislative action for making a
secular code except of some limited extent governing the subject of
T ndian charitable trusts.
And this unnoticed parliamentary procrastination has compelled the courts to dive into hoary books
and
vintage case-law to ascertain the current law.
We will
therefore
navigate, with this ancieF!t mariner's compass, although we have the
advantage of an authoritative work in B. K. Mukherjea on. Hindu Law
cf Religious and Charitable Trusts, relied on by counsel on both sides.
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c. I. T. w. BENGAL v. SRI JAGANNATH JEE (Krishna Iyer, J.). 4g1
Two paramount background considerations of assistance to deciA
pher the intention of the testato~, which ~ave app~aled t? us, m~y be
mentioned first. We are construmg the will of a pious Hindus anstocrat whose faith in ritual performances was more than matched
by
his ecumenical perspective, whose anxiety for spiritual merit for himself and his manes was balanced ·by a universal love and compassion.
Secondly, the sacred sentiment writ large in the will is his totul. devotion and surrender to the family dei~y Sree Jagannath Jee.
B
It is easy to see that, in formal terms, the author makes a dedication
to Sree Jagannath Jee and calls the properties debutter.
But Shri B.
Sen, for the respondents, contests the finality of such a verbal test and
counters it by reliancei on expressions like 'shebaits and trustees' and
'trusts' and urges that there are no clear words of vesting so far as the
second category of properties is concerned.
It is trite but true that c
while the label 'debutter' may not clinch the legal character, there is
much in· a name, fragrant with profound sentiment and expressi;ve of
inner dedication.
It looks like doing violence to the heart of the will
if we side-step Sree Jagannath J~ as the divine dedicatee, down-gradei
him to the status of but one of the beneficiaries and, by judicial construction, transmit the sanctified estate into human hands as the legal
owners to distribute the income, one of the several objects being doing
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pujas prescribed.
·
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The will, right in the forefront, declares : 'I hereby dedicate and
make debutter', 'I do hereby dedicate and make debutter in the name
and for the worship of my Thakoor Sree Sree Jagannath Jee the following properties ... ' 'I hereby give, dedicate and make debutter all
the jewels ... to the said Thakoor Sree Sree Jagannathjee'.
These
E
solemn and emphatic dediC'ative expressions cannot be wasted words
used by an English Solicitor but implementatory of the. intention of the
donor whose inmost spiritual commitment, gathered from the many
clauses, appears to be towards his family Thakoor. Of course if
there are the clearest clauses striking a contrary note and creuting 'but
a partial debutter, this dedicative diction must bow down.
The law
is set down thus by B. K. Mukerjea :
F
"The fact that property is ordinarily described as Debutter
is certainly a piece of evidence in favour of dedication, but
.not conclusive.
In Binod Behari v. Manmatha (21 C.L.J.
42) Cox J. observed as follows :-
"The fact that the property is called Debutter is a doubtG
less evidence in the plaintiff's favour but it does not relieve
them of the whole burden of proving that the land was dedicated and is inalienable."
·
(p. 131)
Though inconclusive it .carri~ wei~t i~ ~he .light of wha! we ~ay H
call the mission of the dISposition which 1s msprred by devotion to my
Thakoor' and animated by a general religious fulfilment.
It must be
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remembered that the donor was not tied down by bigotry to performance of pujas, important though they were.
A more cosmic and
liberal view of Hinduism informed his soul and so in his declaration
of dedication to Sree Ja.gannathjeo ho addressed to the managers many
directions of a broadly religious and charitable character.
His injunction to feed tho poor was Narayana Seva, for worship of God
through service of man in a land where the divinity in daridra narayana
is conceptually commonplace and, while it is overtly secular, its mo?ve
springs from spiritual sources. It is religion to love the poor.
Likewise, his insistence on the aviary and the menageries and throwing open
both to the people to see and delight is not a mundane mania but has
dooper religious roots.
Hinduism worships all creation :
w;:rr Ofter fa-11~ iIT "I' a-1111~ 11
~
~
(peace be unto all bipeds and even so to all quadrupeds)). Indeed,
the love of sub-human brethren is high religion.
For
"Ho prayoth best, who loveth best
All things both great and iimall,
For the dear God who loveth us,
He made and, loveth all."
(Coleridge, in Ancient Mariner)
From the Buddha and Mahavira to St. Francis of Assissi and Gandhiji,
compassion f(){' living creatures is a profound religious motivation. The
sublime mind qi Mullick was obviously in religious sympathy with
fellow-beings of the lower order when he should this tenderness to
birds and beasts and shared it with the public.
The art gallery too
had link with religion in its wider connotation although it is plainer to
regard it as 11. g~turo of aesthetics and charitable disposition.
God
is Truth, Truth is beauty, beauty Truth.
A thing of beauty is a joy
for ever.
In fact, for a highly elevated Indian mind, this conceptual
nexus is not far-fetched. The garden and the love of flowers strike a
psychic chord at once beautiful and religiously mystical, as any reader
of Wordsworth or other great poet in English or Sanskrit will agree.
Tho point is that the multiform dispositions had been united by a
6piritual thirst and, il read in their integrality, could be designated
religions-cum-charitable.
In sum, the primary intendment was to
dedicate as debutter and to direct fulfilment of uplifting religions and
para-religious purposes, the focus being on worship of Sree Jagannathjee
and tho fall-out somo subsidiary, yet significant, charitable items. The
finer note struck by the felt
necessities of his soul was
divinised
and humanised, tho central object being Sree Jagannathji, the Lord; of
the Universe.
H
Of course Sri Sen iubmits that verbalism cannot take us far and
the description of debutter cannot bo decisive because the magnitilde
of the expenses on tho various items, apart from other telling clauses
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c. I. T. w. BENGAL v. SRI JAGANNATH JEE (Krishna Iyer, !.) 493
which will presently advert to, waa indicative not ?~ a dedication. to
the idol but of tho general charitable bunch of dispositions to b~ earned
out through the agency of trus~hip in the sense _of the English Law.
For instance, ho argues that feeding tho poor, ma1lltenance of the art
gallery, menagerie, aviary an~ gardens and fulfilment
to the oti;ier
charities have littlo to do with idol
qua idol.
Moreover, making
a substantial margin for the
remuneration of the Shebaiti, there is
some clear excess in favour of donor's family members in the amounts
to be paid or spont on behalf of the shebaits-cum-trustees.
These are
stroogly suggestivo of a non-debutter
character, especially because
the cost of the poojas makes but a small bite on tho total income.
Ho
refilforces tho submission by many other points which may be mentioned at this stage.
Ho states that the donor, if he meant a straightforward case of dobutter, would havo confined himself to tho oxpresii.on 'shebaits' but thero was a sedulous combination of 'shebaits' and
or 'trustees' and there was also reference to trusts in some places.
Provision for tho heirs, for the residence 9f the shebaitee's families, the
norse carriages and tho liko also do not smack bf debutter. A specification of the minimum age of 18 to become shebaits and trustees also
iiavours of trusteeship rather than shebaitship.
Appointment of
a
Board of Trustees on 1hebaits failing in succession throws clear light
on the creation o~ a trust in tho English sense rather than a debutter in
the Hindu sense.
Again, shebaitship is property and if what is created
is only shebaitihip, not trusteeship, how can the testator exclude
females, insist on 18 years of age and prescribo a course of succession
not quite consistent with Hindu law? Does this not also point towards
trusteeship and away from debutter?
In any case, a fair conclusion,
according to Sri Sen, would be to regard the appointees as shebaits for
purposes of pooja and management of tho shrine and as trustees for the
other substantial purposes.
Which means that there is a
partial
debutter and tho vesting of tho estato in the trustees.
Thero ia other evidence to bo gle.aned from the tenor of tho will to
which our attention has been drawn by Sri Sen with a view to emphai.izo that public charities of a secular character, construction of buildin~ for residence, for footling tho poor, repairs and maintenance of
a. miscellaneous aort plus detailed directions towards all shebaits and
trustees. are telling against absolute dobutter.
Since the expenses for
the pooJ~ cover only a small part of tho total income, a correct reading
of tho _will may ~o to hold th:it tho corpus vests in the trustees, subject
to 3.!1 mterest bomg created m the deity to the extent of the share ot
tho mcomo reasonably necessary for tho pooja and residence of the
Lord.
We sec forco in these submissions and shall deal with them
pteiontly.
Before that wo may 11tato tho correct legal approach as
set out by Mukherjoa: in his Tagore Law lectures :
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"Even when a deal of dedication is not fictitious or benami
the provisions of tho deed might show that the benefit intendII
~ for !ho deity w~ ':'ery small or of a nominal character.
If tho gift to tho deity 111 wholly illusory then: is no Debuttor
494
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in the eye of law, but there ar~ cases where a question arise.5
on the construction of the document itself, whether the endowment created was only a partial one meaning thereby
that the dedicated property did not actually vest in the idol,
but the latter enjoyed a charge upon the secular property of
the founder, given to his heir or other relations, for the expenses of its worship.
I will discuss this matter seJ!larately
under the second head.
I may only state here that wh1re
there is an out and out dedication to an idol, the reservation
of a moderate portion of the income of the endowed estate
for the· remuneration of the shebait would not invalidate the
endowment either a3 a whole or to the extent of the income
so served.
In ladu Nath v. Thakur Sitaramji ( 44 I.A. 187)
there was a dedication of the entire property of the founder
to the idol, and the direction given was that half of the income
was to be applied for the worship of the idol and repairs of
the temple, and the other half was to go for the upkeep of the
managers.
Their Lordships of the Judicial Committee in
holding the gift as a valid Debutter observed as follows :-·
"The deed uught to b~ read just as it appears, and there
is no reason why it should not be so construed as meaning simply what the language say,, a gift for the maintenance of the idol and the temple, under which the idol
is to take the property, and for the rest, the family are
to be the administrators and managers and to be remunerated with half the income of the property. If the
income of the property had been large <i question might
have been raised, in the circumstances as throwing some
doubt upon the integrity or the settlor's intentions, but
as the entire income is only 800 rupees a year, it is
obvious that the payment to these ladies is of the most
trifling kind and certainly not an amount which one
could expect in a case of this kind."
Following this decision it was held oy the Calcutta High
Court in Chandi v. Dulal (30 CMN 930) that a provision for
remuneration of the Shebaits with half of the income of the
Debutter property (which proved to be a small sum) as well.
as thei.r residence in the Thakurbari were quite compatible
with an absolute endowment.
You should bear in mind in
this connection, that when a property is absolutely dedicated
to a deity, it is not necessary that every farthing of the income
should be spent for
the worship of the idol itself.
It is
quite within the competence of a settlor to provide that the
surplus income should be spent for the charitable objects e.g.
feeding of the poor. Sadavart or entertainment of pilgrims
and guests is often found to be an adjunct of a public Debutter.
In the case of Monohar Mukherji v. Bhupendra Nath
Mukherjee (37 CWN 29 FB) there was ci provision in the
deed of dedication that the surplus income of the endowment 3hou/,d be spent upon maintenance of childless widow
\ ,,,...
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c. I. T. w. BENGAL v. SRI JAGANNATH JEE (Krishna Iyer,!.)
495
of the
family
and
construction
of
roads
and
A
excavation of the tanks for public use, and these directionJ, it WaJ held, did not make the dedication incomplete.
(pp. 129-130)
(Underscoring supplied with a purpose)
The demarcating line between absolute and partial debutter
is
drawn by the. author thus :
I
"Where the dedication made by settlor in favour of an idol
covers the entire beneficial interest which he had in the property, the Debutter is an absolute or complete Debutter.
Where however, some proprietary or pecuniary right or
interest in the property is either undisposed of or is reserved
for the settlor's family or relations, a case of partial dedication arises.
In a partial dedication the deity doe~ not become the owner of the dedicated property but is in the position of a charge holder in respect of the same.
A charge
is credited on the property and there is an obligation on the
holder to apply a portion ill the income for the religious purposes indicated by the settlor.
The property does not
become extra-commercium like Debutter property, strictly
speaking so called, but is alienable subject to the charge
and descends according to the ordinary rules of inheritance.
It can be attached and sold in execution of decree against the
holder.
Whoever gets the property however takes it
burdened with the charge or religious trust.
In Dasaratha
Rami Reddy v. Subba Rao (1957 SCR 1122) it was observed by the Supreme Court that the question whether a dedication was complete or partial must depend on whether the
settlor intended that his title should be completely extinguished and transferred to the trust, that in ascertaining that
intention regard must be had to the terms of the documen-t
as a whole and that the use of the word 'trust' though of
some help in determining such intention was not decisive
of the matter.
It sometimes happens that the settlor mere-ly provides
for the perfomance of certain religious services or charities
from out of the income of properties specified, and the question arises whether in such cases the specified properties
themselves form the subject-matte!' of dedication.
Where
the entire income from the properties or a substantial portion
thereof is directed to be applied, or is required for such purposes, then the property ·itself must be held to have been
absolutely dedicated for those purposes.