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12. The assessee then went up in appeal before the Income-tax Appellate Tribunal. The Tribunal came to the conclusion that the trust created by the deed dated 27th October, 1941, which was not public and charitable in nature, was valid, the memorandum of association of the company did not permit it to utilise its funds for a public charitable purpose and, therefore, no order rectifying the original deed of trust, enabling the company to provide for public and charitable objects could be passed. In the result, even though the suit under section 31 of the Specific Relief Act had been decreed, the original trust deed dated 27th October, 1941, stood unmodified. That the trust being legal, it stood for all future times as a valid trust in favour of the employees and ex-employees of the J. K. Cotton Spinning and Weaving Mills Co, Ltd, and their families. An argument was advanced on behalf of the assessee that the rectification ordered by the civil court was legal and valid and could not be made a subject-matter of discussion before the income-tax authorities. It was contended that the original trust as rectified by the decree of the civil court could not be said to be void for uncertainty. The Appellate Tribunal, however, came to the conclusion that the civil court did not consider the legal consequences that would flow if the rectification sought by the plaintiff was allowed. In the circumstances, it thought that it had the jurisdiction to deal with that issue and to hold that the decree of rectification conferred no legal right upon the company to create a trust for public charitable purposes. If such a trust was created it would be void and would not be a trust in law. It then proceeded to decide the points involved in the case on the basis of the original trust deed and ignoring the rectification made by the civil court. It came to the conclusion that the Kamla Town Trust was merely a name lender and the real partners of the assessee-firm were the three Singhania brothers. It also found that the constitution of the assessee-firm as claimed by it was also open to serious legal objections. If the two partners in the firm were the Kamla Town Trust and J. P. Agarwal, the partnership itself would be invalid, as, under the Trusts Act, a trust is merely an obligation which is incapable of entering into partnership. On this ground also it could not be held that the trust and not the Singhania brothers were partners in the assessee-firm. On the question whether the Income-tax Officer was justified in disallowing a sum of Rs. 59,000 in respect of the purchase price of needles it came to the conclusion that the disallowance should have been to the extent of Rs. 37,656 instead of Rs. 59,000. The Income-tax Officer was directed to modify the assessment order accordingly.

"A trust to be valid must be for the benefit of individuals, which this is certainly not, or must be in that class of gifts for the benefit of the public which the courts in this country recognize as charitable in the legal as opposed to the popular sense of that term. Moreover, if a trustee is given a discretion to apply trust property ior purposes some of which are and some are not charitable, the trust is void for uncertainty. A simple instance of this is a gift for charitable or benevolent purposes. Such a gift is void, for benevolent purposes are, as is well-settled, not necessarily charitable. "

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.