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34. Learned counsel for the department then contended that clause 2(b)(i) required the trustees to erect, establish, equip, furnish, fit, maintain and repair residential quarters, chawls or buildings for the workmen in general and in particular for the workmen, staff and other employees of the company for other allied concerns under the management of or in which the directors of the company may for the time being be interested and for their respective families and dependants and for such other skilled and unskilled workmen, craftsmen, traders, merchants, technicians or professional men whom the trustees may permit to reside or work in the said two plots with a view to supply their needs and requirements or to lender them services or to cater to their wants, comforts, conveniences and amenities. He contended that the object of making constructions for the purposes mentioned in this clause cannot be said to be a public, charitable or other religious purpose. Inasmuch as the trustees have been authorised to spend money for public charitable purposes as mentioned in the other sub-clauses of Clauses 2(b)(ii) and 2(b)(iii) of the trust deed, and the trustees have been left with a discretion to spend all the monies for the purposes mentioned in Clauses 2(b)(i) which is not a charitable purpose, the trust deed is invalid. Learned counsel for the assessee, however, argued that setting up of residential quarters, chawls or buildings for the workmen in general while giving preference to the workmen, staff and other employees of the company would still be charitable purpose and the trust deed as a whole is for public charity. According to him there is no mixture of charitable and non-charitable objects in the trust deed and as such the trust deed cannot be said to be invalid as being vague.

58. Learned counsel for the assessee next relied upon the case of Commissioner of Wealth-tax v. Trustees of J. P. Pardiwala Charily Trust, [1965] 58 I.T.R. 46 (Bom.). In this case, under a deed of settlement certain properties were transferred to a trust. Clause (v) of the deed authorised the trustees to spend money on certain religious ceremonies for the repose of the souls of the members of the settlor's family. Clause 6 of the deed authorised the trustees to pay money for the maintenance and support of the settlor's relatives and/or other indigent persons. The Wealth-tax Officer held that the properties settled on trust were not entitled to exemption from wealth-tax as the object of the trust was not charitable inasmuch as the money could be spent on the settlor's relatives who were not indigent persons. The Bombay High Court held the entire trust to be charitable. Learned counsel, therefore, argued that, since some of the objects of the trust, in the present case, were charitable in nature, the trust did not cease to be a charitable trust merely because one of the objects of the trust was not found to be charitable. This argument is not borne out by the decision of the Bombay High Court. In that case the High Court did not find any of the objects as non-charitable. It interpreted clause 6, and came to the conclusion that, on a correct interpretation, the trustees were authorised to spend money for the maintenance and support of the settlor's relatives who were indigent persons. According to the learned judges, the case was similar to that of the Trustees of the Charity Fund v. Commissioner of Income-tax. It will thus be seen that the decision in that case turned on the interpretation of the deed of trust, and it cannot be utilised in support of the proposition urged by the learned counsel for the assessee.

59. In view of the aforesaid discussion, we are clearly of the opinion that the object underlying Clause 2(b)(i) of the rectified trust deed cannot be said to be a charitable object. At any rate, it is a mixture of charitable and non-charitable objects. It is open to the trustees to utilise the trust funds only for non-charitable purpose.

60. The next question that arises for consideration is as to what is the effect of mixing up the charitable and non-charitable objects in a trust deed, while giving full discretion to the trustees to spend any amounts on any of the purposes. Leading case on the point is the case of Bowman v. Secular Society Ltd., [1917] A.C. 406 (H.L.) In that case, Lord Parker observed at page 441 as follows :

61. In In re Diplock: Wintle v. Diplock, [1940] Ch. 988, 109 L. J. (Ch.) 407, [1941] 1 All E.R. 193 (Ch. D.)"", it has been held that a trust which is a mixture of charitable and benevolent purposes is void on account of uncertainty.

62. The case of Dwarkadas Bhimji v. Commissioner of Income-tax, [1948] 16 I.T.R. 160 (Bom.) is an authority for the proposition that in a case where some of the objects on which the trustees spend the trust income are not charitable and it is open to the trustees to apply the whole of the income on a non-charitable object, the trust is not a good and valid charitable trust and that it is void on the ground of uncertainty. In such cases, courts cannot compel the trustees to spend the whole of the trust income on charitable purposes and become incapable of administering it.