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It is to be observed that in those proceedings the assessee was plaintiff and the Advocate-General and the two other trustees of the 1908 settlement, viz., Kanji Mulji and Mowji Mulji, were defendants.

Thereafter, viz., on the 7th of October 1940 the assessee executed a deed poll of which the material provisions are as follows :-

"NOW KNOW YE AND THESE PRESENTS WITNESS that I, the said Vallabhdas Karsondas Natha, DO HEREBY DECLARE that all my right, title and interest into or to the immovable properties and the securities described and mentioned respectively in Schedules A and B hereunder written, and the income of which being the surplus referred to above, is payable to me every year in accordance with the terms of the decree in Suit No. 1293 of 1934 (O. S.) is dedicated for every by me for religious and charitable objects such as (1) Poor Relief, (2) Famine Relief, (3) Providing Medical and Surgical relief to the needy and poor, (4) Supple of fodder to animals and cattle, (5) Advancement of Education, (6) Advancement of Hindu Religion, (7) Upkeep and maintenance of Charitable Institutions and (8) Such other purposes beneficial to the Hindu Community and Indians in general not falling under preceding heads; AND I DO HEREBY FURTHER DECLARE that I do now hold my right, title and interest in the said immovable properties and securities, subject to deduction therefrom of the expenses incurred, upon trust for religious and charitable objects aforementioned AND that in the event of my share in the said immovable properties and the securities being separated and conveyed and given over to me, I shall also continue to hold my said share, deducting therefrom the expenses incurred by me till then upon Trust as aforesaid, either myself alone or with any two or more Trustees whom I may appoint along with me, with and subject to the powers and provisions hereinafter declared."

Mr. Setalvad, on behalf of the Commissioner, challenges the trusts of the 1940 deed, and contends that none of the objects are either religious or charitable. Objection is taken to objects numbered (4) and (8), with regard to which he submits that if any of the objects are bad, then the whole of the funds could be applied for that object or objects so as to vitiate the whole of the trust as being either religious or charitable, and he relies upon the case of In re Lokamanya Tilak Jubilee Trust Fund. But in the case before us the material words are that what is settled is to be dedicated "for every be me for religious and charitable objects such as"; and then are set out the eight objects and the question is whether those eight objects predominate and govern the preceding trust or whether they are to be regarded as illustrative of the type of religious or charitable objects to which the trustees may apply the funds. In my opinion the latter is the correct view, the words "such as," it is submitted by Sir Jamshedji Kanga, being equivalent to the word "like". That being so, it does not become essential to consider the two objects to which objection is taken by Mr. Setalvad on the ground that they are neither religious nor charitable. However, as this is a case of some importance, we think it right to express our view upon objects (4) and (8).

Accordingly in my opinion the question should be answered by saying that the Rs. 23,515 must be apportioned and that that part of it which is attributable to the period 1st November 1939 to the 7th October 1940 does not escape taxation but that the portion attributable to the period 7th October to the 31st October 1940 is exempted from taxation under Section 4 (3) (i) of the Act. Commissioner must pay the costs.

CHAGLA, J. - The assessee before us claims exemption in respect of the sum of Rs. 23,515 as falling under Section 4, sub-section (3), sub-clause (i), of the Indian Income-tax Act. Now, before that sub-clause can be applied, two conditions have got to be satisfied. There must be a property held under trust or other legal obligation wholly for religious or charitable purposes; and there must be an income which must be derived from that property. In other words, there must be a nexus between the property held under trust or other legal obligation wholly for religious or charitable purposes and the income in respect of which an exemption is sought; or again to put in a different language, the sum of money in respect of which the assessee claims an exemption must represent the property held in trust for religious or charitable purposes. Now in this case the assessees contention is that the sum of Rs. 23,515 or at lease to the extent that a portion of it was earned after the 7th of October 1940 was an income which was derived from property which was held in trust for religious or charitable purposes under a deed of trust executed on the 7th of October 1940. In order to appreciate the assessees contention, it is necessary to consider the terms of that deed of trust. Now what was settled under that deed of trust was the right, title and interest of the assessee into or to the immovable properties and the securities described and mentioned respectively in the schedules to the deed of trust of the 1st of April 1908. Mr. Setalvads contention is that the assessee had no right, title and interest in the trust properties held under the deed of trust of 1908. I am not prepared to accept that contention. As a result of the judgment of Mr. Justice Tyabji delivered on the 12th of October 1934 and the decree following upon it, it was held that there was a resulting trust in favour of the assessee to the extent of the income derived from the trust properties which were in excess of the sum of Rs. 26,000. Now under the deed of trust of the 1st of April 1908 the whole legal estate in the trust properties was vested in the trustees and they were directed to spend the income of the trust properties on certain religious and charitable objects set out in that deed of trust; but there was no direction as to what they were to do with the surplus income. It was, therefore, as a result of the judgment and decree of the 12th October 1934 that the trustees of the deed of trust of the 1st of April 1908 became trustees as a consequence of the resulting trust for the assessee in respect of the surplus income. To my mind, reading the judgment and the decree, it is clear that a right was conferred upon the assessee of payment of the surplus income out of a specific property and that specific property was the trust properties held in trust under the deed of trust of the 1st of April 1908. If that be so, I fail to understand how it can be argued that the assessee had no right, title or interest in the trust properties held under the deed of trust of the 1st of April 1908. The right, title and interest of the assessee was the right to receive the surplus income out of the trust properties and it is this right, title and interest that is settle upon trust by the deed of trust of the 7th of October 1940, and it is not disputed that the surplus income of Rs. 23,515 or a portion of it is the income derived from this property.

The next question is whether the property is settled upon religious and charitable trusts. Now the settlor in the 1940 trust dedicates the property for ever for religious and charitable objects; and then he goes on, an and by way of illustration, what, according to him, those objects are. Now, in my opinion, the trust deed discloses a dominant and overriding charitable intention. The dedication is to religious and charitable objects and the trustees have no discretion to apply any of the trust income except to religious and charitable objects. If any of the eight objects which are specified as and by way of illustration do not fall within the category of religious and charitable objects, then the trustees must discard such objects and apply the trust income only to religious and charitable objects. Mr. Setalvad has contended that objects Nos. (4) and (8) are not religious and charitable objects. Object (4) is supply of fodder to animals and cattle. I should have thought that to a Hindu, and in this case the settlor happens to be a Hindu, nothing can be of greater religious merit than to relieve suffering of dumb cattle and animals by giving them fodder. It is hardly necessary to emphasize that, according to Hindu religion and philosophy, animals have the same soul as human beings have and the spark of divinity is as much present in them as in human beings. But Mr. Setalvad says that Hindu religion makes it meritorious only to supply fodder to a certain class of animals and on certain specified occasions. He does not dispute that giving fodder to cattle would be even from the strictest Hindu religious point of view of matter of religious merit. If that be so, object (4) is cumulative in charactero - supply of fodder to animals and cattle - and if supply of fodder to cattle is a good religious object, then the Court could not permit that particular object to fail and the trustees could be compelled to apply the trust income only to the supply of fodder to cattle and not to other animals. But I am prepared to go further. According to me, supply of fodder to cattle and animals is not only a good religious trust but it is also a good charitable trust.