MIDHAYEL THOMAS Vs. OUSEPH OUSEPH

JUDGEMENT

(1.) COMMON questions arise in these references;and as many as eight questions have been referred to us.These questions are: "( 1)Whether Clauses 9 and 13 of the trust deed can be interpreted to mean that poverty is the test in the matter of utilisation of half of the income from the properties in question on the descendants of the settlor or the payment is contingent upon the descendants being in financial distress ? (2)Whether utilisation of half of the income on the descendants is,in the circumstances of the case,a charitable purpose which enures for the benefit of the public ? (3)Whether a purpose of a charitable nature which does not enure for the benefit of the public can be a 'charitable purpose 'for the purpose of Section 4(b)of the Agricultural Income Tax Act ? (4)Whether the provision for charitable purposes in Clause 8 of the trust deed makes the separate and independent provision in Clause 9 of the deed for the utilisation of a specific part of the income on the descendants also a provision for charitable purposes or on the other hand the trust is a mixed,trust ? (5)Whether augmentation of the properties of a mixed trust can be a 'charitable purpose 'for the purpose of Section 4(b)of the Agricultural Income Tax Act ? (6)Whether the dominant purpose of the trust deed is charitable ? (7)Whether the income for the augmentation of the trust properties in question is exempt from tax ? (8)Whether the properties in question are held under trust wholly for religious or charitable purposes ? The provision of the Agricultural Income Tax Act of 1950 with which we are concerned is Section 4(b ),which gives exemption from tax to: "Any agricultural income derived from property held under trust or other legal obligation wholly for religious or charitable purposes,and in the case of property so held in part only for such purposes,the income applied thereto." There is an Explanation to this sub -section which is in these terms: "In this section 'charitable purposes 'includes relief of the poor,education,medical relief and the advancement of any other object of general public utility." These references came up before this court on a previous occasion;and this court appears to have directed the Tribunal to furnish a correct copy of the trust deed,since it was felt that the English version of the trust deed submitted was not a correct translation of the document.Consequently,the Tribunal has now submitted fresh statements of the cases and also a copy of the document of trust in Malayalam.We shall now refer to the relevant provisions of this document bearing on the question to be decided by us.

(2.) PARAGRAPH 8 of the trust deed,provides that,after meeting the expenses of upkeep,maintenance,etc .,of the trust properties the remaining income should be divided into four equal parts at the end of every year and one such part should be utilised for providing food,clothing,etc .,to indigent members of the founder's parents 'families and to new converts to Islam;for teaching Islamic tenets;for popularising other languages among Muslims;for renovating damaged mosques;for giving aid for constructing new mosques;for constructing new mosques;for purchasing land for mosques and for burial grounds;for digging tree wells;for burying unclaimed dead bodies of Muslims;for providing food,clothing,etc .,to indigent Cutchi Memons and widows in Travancore and Cochin;and for giving alms to the poor during Ramzan.The trustees are given freedom to spend this quarter of the income on one or more heads - -one head alone or more of them.It is also provided that the whole of this quarter should be spent every year.

(3.) THE next paragraph to be noted is paragraph 12,which provides that,in the matter of paying maintenance as stated in paragraph 9 the trustees must evince special care on the founder's grandson(Moosa)and his male descendants,and the amounts given to them must bear proportion to their status.The food,clothing,etc .,given to these persons must be such as they will not have to depend upon anybody else and must be such as to enable them to live without any difficulty.It is also provided that the amounts given must be sufficient to meet the educational expenses,marriage expenses,etc .,and the amounts must be paid as and when such expenses arise.Lastly it is provided in this paragraph,that,in case the descendants mentioned above become extinct,the said two quarters - -the half - -should be added to the amount mentioned in paragraph 8 and should be spent as indicated in paragraph 32.