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"Poor Vaishya Hindoos who are members of Seksaria families shall be preferred to poor Vaishya Hindoos not belonging to the said families and poor Vaishya Hindoos of Navalgadh shall be preferred to poor Vaishya Hindoos of any other place in or outside India."

7. Under sub-clauses (b) and (c) provision has been made for a maintenance or Rs. 15 to be paid to any poor male or female descendant of Seth Gordhandas Seksaria, who may appear to be deserving of help. Clauses (d) and (e) similarly provide for a sum of Rs. 2,500 to be expended or given for meeting the expenses of marriage of any poor male or female descendant of Seth Gordhandas Selsaria who may appear to be deserving of help. Conditions (f), (g), (h) and (i) similarly provide for the maintains and marriage expenses of any poor male or female descendant of Seth Baldeodasji Seksaria a sum of Rs. 10 per month to be paid by way of maintenance and a sum of Rs. 1,500 by way of marriage expenses. The further conditions (j), (k), (l) and (m) provide for maintenance and marriage expenses to any poor male or female member of legitimate origin belonging to any Seksaria family of Navalgadh who may appear to be deserving of help. The maintenance provided under these conditions is Rs. 7 per month and the marriage expenses Rs. 1,000. The next four conditions make similar provision for the maintenance and marriage expenses for any poor male or female member of legitimate origin belonging to any Seksaria family of any place other than Navalgadh in or outside India. The maintenance provided is at Rs. 5 per month and the marriage expenses at Rs. 500. The last four conditions from (r) to (u) provide for giving maintenance and marriage expenses to any poor male or female Vaishya Hindu who may be deserving of help. The maintenance provided is at Rs. 5 per month and the marriage expenses at Rs. 500. It is then provided that it the income of the trust estate is not sufficient to carry out the charities specified in the sub-clauses (a) to (u) above the charity specified in an earlier sub-clause shall be given priority over a charity specified in a later sub-clause. In clause (4) it is provided that if any balance or surplus remains of the net income after payments are made for the benefit of the parties specified in clause (3), the trustees will use and apply such unspent balance of net income or so much of it as they in their absolute discretion think proper to use and apply for giving monetary help or relief to the poor members of the Hindu community in general or for such charity or charities for the benefit of the Hindu community in general or for way as they may consider most advantageous to the objects of the charity and they would have the liberty to hand over the whole of the unspent balance of the net income, if any, or so much of it as has not been used and applied for the aforesaid purposes, to another trust named "Goverdhandas Govindram Charity Trust" to be applied and spent by the trustees of the said trust for the charitable objects or any of them mentioned in the deed of trust relating to that trust. Clause (5) authorises Govindram Gordhandas Seksaria, as the senior member of the said joint family, so long as he would be the trustee under the trust deed, to give such instructions both as regards the selection of persons and or the charitable objects to be benefited under or by virtue of the trusts therein declared and the manner in which such benefit shall be conferred as he may in his discretion think proper and also to require that a particular charity shall be done in the name or names of a particular individual or individuals, etc., and provides that the other trustees shall be bound to observe, carry out and comply with such instructions and/or requisitions of the said Govindram Gordhandas Seksaria. It will be seen on an examination of these terms of the trust deed that the giving of help or relief to the poor Vaishya Hindus or other Hindus, which is contemplated as the purpose of the trust, is made subject to the conditions and directions as are contained in clause (3) and other clauses of the trust deed and, when we consider the conditions and directions contained in clauses (3), (4) and (5) what we find is that in carrying out the said purpose of the trust, the poor members of the Seksaria family come in as the first objects of the charity in a certain order of priority among such members. Thus the members of the family of Seth Gordhandas Govindram Seksaria come first; those of Seth Baldeodasji Seksaria come next; then come the members of the Seksaria family at Navalgadh and thereafter members of the Seksaria family elsewhere. It is after all these members of the Seksaria family have been exhausted that the other poor male or female Vaishya Hindus, who may be deserving of help, come in for consideration. It will also be seen from the terms of the aforesaid clauses that not only in the matter of priority but even in the matter of the quantum of help or relief to be received there is a certain gradation fixed under these conditions. Thus, maintenance at the rate of Rs. 15 per month and marriage expense at Rs. 2,500 are to be given to members of the family of Seth Gordhandas Seksaria. A maintenance at Rs. 10 per month and marriage expense of Rs. 1,500 are directed to be given to the poor members of Baldeodasji Seksaira family. In the case of the members of others Seksaria family of Navalgadh the maintenance provided is at Rs. 7 per month and expenses for marriage expenses at Rs. 1,000 and to the members of the Seksaria family at any other place outside Navalgadh the maintenance is at Rs. 5 per month and the marriage expenses at Rs. 500. Then come person not belonging to the Seksaria family, viz., the poor male or female members belonging to the Vaishya family, who are provided maintenance at Rs. 5 per month and marriage expenses of Rs. 500. The directions contained in clause (3) show that if the trust funds are not sufficient, the benefit is to be given to persons falling in the earlier categories mentioned in conditions (a) to (u) in preference to the later categories. It will thus be seen that the object of giving help or relief under the trust is to be so carried out so as to give relief to the poor relatives of the Seksaria family first before considering the others, who do not belong to the said family and if the income is not sufficient, the others who are outside the family, do not come in for consideration at all. The Tribunal held that the trust created under the indenture of trust was not one for any public purpose of a charitable nature within the meaning of section 5(1)(i) and, in so holding, it relied on the decision of this court in Trustees of Gordhandas Govindram Family Charity Trust v. Commissioner of Income-tax in which this court had to consider this very same indenture of trust for the purpose of deciding whether the property held thereunder by the trustees was wholly for religious or charitable purposes so as to make the income exempt from income-tax under section 4(3) (i) of the Indian Income-tax Act. "Charitable purpose" within the meaning of section 4(3) (i) is defined as including relief of the poor, education, medical relief and the advancement of any other object of general public utility. The court held, on a consideration of the several terms of the trust deed, that the property under the trust was not held wholly for charitable purposes and the income was. therefore, not exempt from tax under section 4(3) (i). Chief Justice Chagla held that the primary object of the trust was to benefit the poor members of the family of the settlor. Although clause (2) provided that the income was to be applied in giving help or relief to the poor Vaishya Hindhus or other Hindus, that provision was subject to the conditions and directions which followed in the subsequent clauses and these subsequent clauses made it perfectly clear that the members of family of the settlor were to be the first objects of charity, both in respect of maintenance and also for marriage expenses. According to the learned Chief Justice, the conditions, which operated on the giving of relief and help to the poor contemplated in clause (2) did not merely amount to a preference of the members of the settlor's family in the application of the income from the trust and the whole intent and object was that the trust should constitute a first charge in favour of the poor members of the settlor's family and it was only when that first charge was satisfied that the members of the public were to come in for any benefit, under the trust. The learned Chief Justice, therefore, held that the benefit, which was reserved for the public under the trust deed, was much too remote and much illusory and the trust, therefore, was not one which had for its object general public utility. According to the learned Chief Justice, the provision as to marriage expenses to the members of the settlor's family would not be regarded as an item of relief against poverty and consequently the providing of marriage expenses to the members of the settlor's family could not be considered to be a charitable object, apart from the question whether it involved general public utility or not. Mr. Justice Tendolkar, who agreed with the view expressed by the learned Chief Justice, observed in his judgment that although marriage is an object of utility to the individual concerned and it may also be that in certain given conditions of society it may be an object of general public utility to promote marriages generally, such as for instance, when the population of a country has gone down as a result of war, an individual marriage can never be regarded as an object of public utility and, since the provision made and female descendants of the settlor, it could not be retarded as a provision made for a charitable purpose of general public utility. As to the other conditions, the learned judge was of the opinion that those conditions showed that it was not a case of preference being given to the members of the settlor's family at all but under the said conditions the members of the settlor's family were considered as a class excluding the other members of the community irrespective of whether there were poorer or more deserving persons amongst them. According to the learned judge, the settlor in the present case desired that his descendants should have the benefit in main and if there was anything left over, then alone the other members of the Vaishya community should come in.

14. Now, we may point out that the decision of the Supreme Court as to the nature of the trust in that case was based on the facts of the case, which Das C.J. himself pointed out, were different from the facts in the case of the present trust. There clause (13) had specified as many as six objects, each one of which except for proviso contained the necessary element of public utility and the trustees had power to apply the income of the trust to any one or more of the objects. The proviso giving preference to the relations of the settlor in the application of the benefit operated only on one of the six objects and in the other five the relations or members of the settlor's family did not come in directly and this fact, according to the Supreme Court, was material in considering what was the primary object of the trust as a whole. Clause (a) itself provided relief and benefit of the poor indigent members of the Jewish or any other community of Bombay or elsewhere and constituted a charitable, which was neither too wide, vague nor unenforceable. The proviso, which applied to sub-clause (a) only in terms, spoke of a preference in the selection of the individuals from the primary class ascertained by the main clause. It is on these facts that the Supreme Court held that the primary object of the trust as a whole was a charitable object and the provision for giving preference to the poor and indigent relations of the settlor did not affect the public charitable trust constituted under sub-clause (a). The facts in the case before us are very different. The sole object of the trust is the relief of poverty, which by itself would not constitute a charitable purpose in India unless it involves an element of public utility. Clause (2), no doubt, states that the object is to give help and relief to the poor Vaishya Hindus or other Hindus but the relief contemplated is subjected to the conditions and directions container in the subsequent clauses. In Sassoon's case reported as Trustees of the Charity Fund v. Commissioner of Income-tax, sub-clause (a) itself, which was neither too wide, vague nor unenforceable, as pointed out by the Das C.J. disclosed a charitable object and ascertained the primary case of eligible persons for the benefit contemplated by it. In the present case before us the help and relief to the poor Vaishya Hindus or other Hindus being subject to the conditions and directions contained in the following clauses as to the manner in which and the extent to which the relief was to be given, both for deciding whether the relief of poverty constitutes a charitable object and for ascertaining the primary class of persons eligible for benefit, clause (2) itself will not suffice and the conditions and directions will have to be examined.

20. The last Indian case, which has been referred to by Mr. Kolah in this connection is a decision of this court in Commissioner of Wealth-tax v. Trustees of the J. P. Pardiwala Charity Trust. Clause 6 of the trust deed authorised the trustees to pay money towards the maintenance and support of the settlor's relatives and /or other indigent persons. Clause 5, which preceded clause 6, empowers the trustees to expend money on certain religious ceremonies for the repose of the soul of the members of the settlor's family It was argued that the purpose specified in the aforesaid two clause did not disclose charitable purposes. The court held that the ceremonies performed for the repose of the soul of the deceased individual enured for the benefit of mankind at large and as such the purpose mentioned in clause 5 of the deed was a public purpose of a religious nature. It also held that the use of the word "other" in clause 6 showed that the reference to the relatives of the settlor was a reference to indigent persons and not to all the relatives irrespective of their financial condition. Clause 6, therefore, only contained a direction that in considering the case of all indigent persons, preference should be given to the indigent relatives of the settlor and such a direction had not the effect of invalidating the charitable object of the trust on the principle laid down in Sasson's case. It will be seen that even in this case the view taken by this court on the construction of the deed was that it disclosed a dominant intention to charity and only gave a preference to certain individuals in the matter of the application of the benefit under the charity. We do not think, therefore, that the view taken in any of these cases is contrary to the view taken by this court in Gordhandas Govindram's case.

22. In our opinion, therefore, the trust deed in the present case cannot constitute a trust for any public purpose of a charitable nature in India within the meaning of section 5(1)(i) of the Wealth-tax Act.

23. Mr. Kolah has then argued that the decision of this court in Gordhandas Govindram's case was in the context of the provisions of section 4(3) (i) of the Income-tax Act and the definition of "charitable purposes" gives under that section. Under the provisions of section 4(3) (i), income of the property was exempted from the payment of tax if the property was held under trust or other legal obligation wholly for religious or charitable purposes and "charitable purposes" was defined as including relief of the poor, education, medical relief and advancement of any other object of general public utility. Under section 5(1)(i), however, what is required is that the trust must be for a public purpose of a charitable nature. He has argued that the provision of marriage expenses under the present trust deed could be considered as a valid object of a public charitable trust and in that connection has invited our attention to the report of "the Tendolkar's Committee to investigate into the religious and charitable endowments in the Province of Bombay", wherein instances of general public utility work were mentioned including, amongst them, marriages of poor maidens. He has, therefore, argued that providing for marriage expenses would constitute a valid charitable object involving an element of public utility. We may, however, point out that the instance of public utility mentioned is the marriage of maidens and not all marriages. Moreover, the definition of a "public trust" under the Bombay Public Trusts Act was contemplated to be a wider definition than what public Trusts Act was contemplated to be a wider definition than what public trust would ordinarily mean. There is, however, no warrant for introducing this larger definition of a public trust in the expression "public trust" used in section 5(1)(i) of a special Act. In our opinion, the expression "trust for any public purposes of a charitable or religious nature "connotes a trust for charitable objects involving an element of public utility. Marriage expenses, as we have already pointed out and as held by this court in the earlier case, do not normally involve any element of public utility. In our view, therefore, a trust property which could not be regarded as held wholly for charitable purposes within the meaning of section 4(3) (i) of the Indian Income-tax Act will also fail to qualify as a trust for a public purpose of a charitable nature in India. Moreover, on the view we have taken of the construction of the trust deed, viz. that its primary object is to provide maintenance and marriage expenses to the poor members of the settlor's family or the Seksaria family, it could not be considered as a public trust for a charitable purpose under any concept of a public trust either wide or narrow. In our opinion, therefore, the trust in the present case does not qualify to be a trust for a public purpose of a charitable nature in India and consequently would not be exempt under the provisions of section 5(1)(i) of the Wealth-tax Act.