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3. The aforesaid partnership deed whereby the appellant-Trust was created contained a clause which gave the partners a right to revoke the Trust which had been created by the partnership deed. By a subsequent document executed on 26th August, 1943 this clause containing the power of revocation was deleted. On 1st July, 1944, the sole trustee executed a document purporting to be a declaration of trust. It referred to the carrying on of the partnership business by the earlier founders of the trust and for establishment of the trust for charitable and religious objects and then proceeded to make a declaration of trust specifying a number of objects, most of which were different from the ones contained in the partnership deed of 28th November, 1941. One of the clauses in this deed of 1st July. 1944 was regarded by the Income-Tax Department as not being charitable in nature. It appears that one M/s. East India Industries Madras Pvt. Ltd. a donor to the appellant-Trust in respect of the donation given to the Trust claimed exemption from tax under section 158 of the Income Tax Act, 1922. While considering the case relating to this donation, the Income Tax Officer in East India Industries case came to the conclusion that by virtue of this clause relating to non-charitable object, the Trust created by the Deed dated 1st July, 1944 could not be regarded as a Trust having charitable object and , therefore, not entitled to exemption under the Income Tax Act. This matter was carried to this Court and in the judgment reported as East India Industries Ltd. Vs. Commissioner of Income Tax [65 ITR 611] the view of the Department was affirmed and it was held that the document dated 1st July, 1944 did not establish a public charitable trust because one of the objects was not charitable in nature and there was nothing in the Trust Deed which prevented the trustees from applying the whole or any part of the Trust property for that purpose. In the assessment for the years 1957-58 to 1974-75 of the appellant, the question arose whether it could be regarded as a public charitable trust entitled to the benefits under the Income Tax Act The Income Tax Officer as well as the Appellate Commissioner came to the conclusion that the appellant was not a public charitable trust. Before the Income Tax Appellate Tribunal, it was contended on behalf of the appellant-Trust that the Trust had come into existence by virtue of Deed dated 28th November, 1941 and the Declaration of Trust under a deed dated 1st July, 1944 was invalid. On behalf of the Revenue, however, reliance was placed upon the aforesaid decision of this Court in East India Industries case and it was submitted that this Court having come to the conclusion that since the appellant was not a charitable public trust the appeal of the appellant should be dismissed.

4. By a detailed order the Income Tax Tribunal came to the conclusion that the question as to whether the Deed dated 1st July, 1944 was validly executed was not in issue in East India Industries case. It further held that since an irrevocable trust had been created by virtue of partnership deed dated 28th November, 1941 neither the founders nor the trustees had any right, in law, to vary the objects of that Trust by executing another document dated 1st July, 1944. The Tribunal, therefore, concluded that the decision of this Court in East India Industries case could not prevent it from examining the terms of the objects of the Trust contained in partnership deed dated 28th November, 1941 inasmuch as that a deed dated 1st July, 1944 being regarded as void, continued to exist. After examining the objects of the Trust as contained in the Deed dated 28th November, 1941 the Tribunal came to the conclusion that the objects of the Trust were charitable in nature and, therefore, the appellant was entitled to be regarded as public charitable Trust which would enable it to get the benefits under the Act.

5. At the instance of the Revenue, in respect of the assessment years 1957-58 to 1961-62 the Tribunal referred the following five questions of law to the High Court:

"(1) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the assessee was a trust constituted by the deed, dated November 28, 1941, and not by the deed dated July 1, 1944?

(2) Whether, on the facts and in the circumstances of the case, the Appellant Tribunal was right in holding that the question whether the assessee was a trust, whose objects are wholly charitable and religious has to be determined solely with reference to the trust deed dated November 28, 1941, and not with reference to the trust deed dated July 1, 1944?

13. The High Court, therefore, should have first considered question nos. 1 to 3 which had been referred for the assessment years 1957-58 to 1961-62 but it chose not to do so. As questions involved are pure questions of law, we are not inclined to remand the case to the High Court for it to give a decision with regard to the first set of questions which it had declined to consider. We now, therefore, proceed to deal with the said questions.

14. We have already observed, the Deed of 1941 originally gave the power to the founders to revoke the Trust but this power was taken away by a subsequent document which was executed on 26th August, 1943. It is thereafter that the Trust became an irrevocable Trust. The powers of the trustee in respect of the said Trust continued to remain the same as set out in Clause (8) of the partnership deed which has been extracted hereinabove. The said trustee was only required to carry out the objects of the Trust and spend the Trust funds for charitable purposes in the manner indicated therein. No power was given to the trustee to amend, alter vary or change in any manner the objects of the Trust as created in 1941. The result of this is that neither the trustee nor the founders could bring about any change in the objects of the Trust as set out in their partnership deed dated 28th November, 1941. This being so, the document dated 1st July, 1944 executed by the trustee was clearly without any authority and was non est. He had no right or jurisdiction to execute the document of 1st July, 1944 which in effect changed the objects of the Trust radically and in fact converted what was meant to be a public charitable trust to a non-charitable trust as held by this Court in East India Industries Case when the Deed dated 1st July, 1944 was construed by it. It will be useful at this juncture to refer to the following passage from Tudor on Charities (6th Edn.). At page 131, it is stated as follows: