Commissioner Of Income Tax v. Hazarat Pir Shah-E-Alam Roza Estate Trust

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD INCOME TAX REFERENCE No 135 of 1988 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO ------------------------------------------------------ COMMISSIONER OF INCOME TAX Versus HAZARAT PIR SHAH-E-ALAM ROZA ESTATE TRUST -------------------------------------------------------------- Appearance: MR B.B. NAIK, Standing counsel for the Revenue MR S.N. SOPARKAR, Sr. Advocate with Mr.M.K.Kaji and Mrs. Swati Soparkar, Advocates for the Assessee -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE KUNDAN SINGH Date of decision: 11/04/2002 (Per : MR.JUSTICE R.K.ABICHANDANI for the Court) 1.�This reference arises from the order of the Income Tax Appellate Tribunal, Ahmedabad `A' passed in a group of 20 appeals related to the Assessment Years 1964-65 to 1969-70, 1972-73 and 1973-74, in which the controversy before us revolved around the issue as to whether the income from the lands in question was the income of the Hazarat Pir Shah-E-Alam Roza Estate Trust (hereinafter referred to as `the Roza Trust') assessable in the hands of the said Trust and exempt under section 11 of the Income Tax Act, 1961 (hereinafter referred to as `the said Act'), or whether it was assessable in the hands of the Sajjadanashin of the Trust Saiyed Musamiya as income from his private property. 2.�The Tribunal has concluded that the lands in question were wakf properties belonging to the Roza Trust, and that the exemption under section 11 of the said Act was available to the assessee - Roza Trust, provided the conditions mentioned therein are fulfilled. It was held that the actual expenditure on the Sajjadanashin and his family not exceeding Rs.30,000=00 would not be included in the income of the Roza Trust, but such amount spent by the assessee Sajjadanashin on his maintenance as Madad-E-Maash was taxable in his hands as income. The Tribunal restored the matter to the Income Tax Officer to assess the income of Rasulabad, Vasna, Isanpur and Sarsa lands as the income of the Roza Trust and grant the benefit under section 11 subject on fulfillment of the conditions mentioned therein, bearing in mind that the income actually spent by Sajjadanashin on his maintenance not exceeding Rs.30,000=00 was not to be included in the income of the Roza Trust. 3.�The Tribunal has in the above background referred the following questions in Income Tax Reference No. 135 of 1988 for the opinion of this Court under section 256(1) of the said Act : "Questions at the instance of the Revenue (In Revenue Appeal Nos.402 to 409/Ahd/1985) : [1] Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal has been right in law in holding that the assessee Roza is a wakf and the complex of buildings and lands at Rasulabad were wakf properties belonging to it by dedication and user ? �[2] Whether, on the facts and in the circumstances of the case, the Appellate 3.�The Tribunal has in the above background referred the following questions in Income Tax Reference No. 135 of 1988 for the opinion of this Court under section 256(1) of the said Act : "Questions at the instance of the Revenue (In Revenue Appeal Nos.402 to 409/Ahd/1985) : [1] Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal has been right in law in holding that the assessee Roza is a wakf and the complex of buildings and lands at Rasulabad were wakf properties belonging to it by dedication and user ? �[2] Whether, on the facts and in the circumstances of the case, the Appellate Tribunal has been right in law in holding that the lands at Vasna, Isanpur and Sarsa were wakf properties belonging to the Roza by virtue of Sanad of Aurangzeb? �[3] Whether, the Appellate Tribunal has been right in law and on facts in holding that the income of Roza was eligible to exemption under section 11 of the Income Tax Act, 1961 if assessee Roza satisfied the conditions mentioned in the said section? �[4] Whether, the Appellate Tribunal has been right in law and on facts in holding that the actual expenditure on the maintenance of the Sajjadanashin and his family not exceeding Rs.30,000=00 a year would not be included in the income of Roza? Questions at the instance of the Revenue in Revenue Appeal Nos. 410 to 413/Ahd/1985 : �[1] Whether, the Appellate Tribunal has not erred in law and on facts in holding that the properties at Rasulabad, Vasna, Isanpur and Sarsa belonged to Shah-E-Alam Roza at Ahmedabad and not to the assessee individual and hence the income thereof was not liable to be assessed in the hands of the assessee? �[2] Whether, the Appellate tribunal has not erred in law and on facts in holding that the Bombay High Court decision wherein the assessee had taken the stand that the properties belonged to him individually and not to the trust, did not operate as res judicata and the assessee was not prevented from taking the stand that the properties belonged to Roza Trust? �[3] Whether, the Appellate Tribunal has not erred in law and on facts in holding that income spent by the assessee Razvi on his maintenance and Madad-E-Maash was only taxable in his hands? Questions at the instance of the Revenue in Revenue Appeal Nos.384 to 387/Ahd/1985 : �[1] Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that all the properties, lands and buildings at Rasulabad are wakf properties by user? �[2] Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the income spent by the assessee Razvi on his maintenance and Madad-E-Maash was taxable income in the hands of the assessee? �[3] Whether, the Tribunal was justified in law in holding that the maintenance and Madad-E-Maash expenditure incurred by the Trust on assessee and his family members was not expenditure for Khankah but was taxable income of the Sajjadanashin? Questions at the instance of the assessee - Roza Trust in Revenue Appeal Nos. 388 to 398/ Ahd/1985: �[1] Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the maintenance and Madad-E-Maash expenditure incurred by the trust on Sajjadanashin and his family members was not expenditure for Khankah? �[2] Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that actual expenditure incurred (not exceeding Rs.30,000=00 a year) in maintenance of Sajjadanashin and his family was not the income of the trust? �[3] Whether, the Tribunal was justified in taxable income of the Sajjadanashin? Questions at the instance of the assessee - Roza Trust in Revenue Appeal Nos. 388 to 398/ Ahd/1985: �[1] Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the maintenance and Madad-E-Maash expenditure incurred by the trust on Sajjadanashin and his family members was not expenditure for Khankah? �[2] Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that actual expenditure incurred (not exceeding Rs.30,000=00 a year) in maintenance of Sajjadanashin and his family was not the income of the trust? �[3] Whether, the Tribunal was justified in law in holding that the British Sanad granted to the assessee were not the documents of title?" 4.�Much historical interest has been evinced by the authorities and a detailed account is given in their orders with a historian's thrill to show as to how the Dargah of Hazarat Pir Shah-E-Alam came into existence when the Roza was constructed during 1531 - 41 A.D. by a noble man of the Court of Sultan Bahadur Shah over the tomb of the great muslim sage who died in 1475 A.D. and how Diwankhana came to be built in 1570 - 73 by Sultan Muzaffer Shah III. These facts found mention in the Bombay Gazette Volume IV at pages 286-87. The lands of six villages, including the four which were the subject matter of the assessment proceedings, are said to have been granted by the Mogal Emperor Aurangzeb for the up-keep of the Roza in the year 1670 A.D. under a Sanad and grants were confirmed by the Sanads issued during the British regime. 5.�It appears from the record that a suo motu inquiry was started under section 19 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as `the Trusts Act of 1950') by order dated 7th march 1956 (Inquiry No. 176 of 1956) passed by the Deputy Charity Commissioner who had chosen the assessors to aid and assist him. As a result of that inquiry, the Deputy Charity Commissioner, Ahmedabad Region, made an order on August 10, 1962 directing that the said Trust be registered as a Public trust in the Public Trust Registration Office, Section `B' for Ahmedabad. Appeals were filed against that order before the Charity Commissioner, Gujarat State, Ahmedabad (Appeal Nos. 60 to 71 of 1962) and the Charity Commissioner by a very elaborate reasoned order dated 20-1-1966 dismissed both the appeals, confirming the order of the Deputy Charity Commissioner that the said Roza trust was a public trust and that the lands of villages Vasna, Isanpur and Sarsa were the properties of the said trust and setting aside the finding of the Deputy Charity Commissioner about the Rasulabad lands by holding that those lands were also the property of the trust. It is stated that an application under section 72 of the said Trusts Act of 1950 was filed and has been pending, but there has not been any stay of the order of the Charity Commissioner, by which it was held that the Roza was a registered public trust and these lands of four villages were registered as the properties of the said wakf. 6.�The Income Tax Officer assessed the income of villages Vasna, Isanpur and Sarsa as well as the income from Rasulabad land as the income in the hands of the assessee Sajjadanashin Saiyed Musamiya Haiderbux Razvi. Protective assessment was, however, made in respect of that income in the name of the assessee Roza Trust. In the appeals, the Assistant Appellate Commissioner upheld the finding of the Income Tax Officer that the income was 6.�The Income Tax Officer assessed the income of villages Vasna, Isanpur and Sarsa as well as the income from Rasulabad land as the income in the hands of the assessee Sajjadanashin Saiyed Musamiya Haiderbux Razvi. Protective assessment was, however, made in respect of that income in the name of the assessee Roza Trust. In the appeals, the Assistant Appellate Commissioner upheld the finding of the Income Tax Officer that the income was assessable in the hands of Saiyed Musamiya Haiderbux Razvi but cancelled the protective assessment which was made in the name of the Roza Trust. 6.1�Against the order of the A.A.C., appeals were preferred by the Roza Trust before the Tribunal challenging the finding that the income in question was of Saiyed Musamiya Haiderbux Razvi and not of the Roza Trust, and that it was not exempted under section 11 of the said Act. According to the assessee Roza Trust, the Appellate Assistant Commissioner had committed an error in setting aside the protective assessment on the ground that the income was not the income of the Roza Trust instead on the ground that it was exempted under section 11 of the said Act. 6.2�In the appeals filed by Saiyed Musamiya Haiderbux Razvi, it was urged that the A.A.C. had erred in holding that the income of the trust was assessable in his hands and not in the name of Roza Trust and that it was not exempted under section 11 of the said Act. 6.3�The Department was aggrieved by the cancellation of protective assessment and in its appeals, challenged the order of the A.A.C. by urging that the protective assessment in the name of Roza Trust should not be cancelled. 7.�The Tribunal took note of the fact that the Deputy Charity Commissioner had held that all the lands in question except the Rasulabad lands, were belonging to the public religious and charitable trust i.e. the Roza Trust. It noted that the Charity Commissioner had confirmed that order and had also held that the Rasulabad lands were belonging to the said trust. It took note of the book entitled "A History of Gujarat" by M.S. Commissariat (Professor of History and Former Principal, Gujarat College, Ahmedabad) to trace out the events that led to the establishment of the Roza Trust as a public charitable trust. It noted that Shah-E-Alam Estate was under the management of the Collector of Ahmedabad under the Court of Wards Act, from 1872 to 1877, 1896 to 1914 and 1948 to 1958. Considering the effect of the judgement dated 24th September 1957 of the Bombay High Court, in First Appeal No. 188 of 1952 which was filed against the decision of the 3rd Joint Civil Judge (S.D.) Ahmedabad in Civil Suit No. 72 of 1948, partly decreeing the suit filed by the senior widow of Saiyed Musamiya Imam Hyderbux against the other widow Mamubibi and her son Saiyed Musamiya Razvi and others, for a decree for administration of the estate of Saiyed Musamiya Hyderbux and for appointment of a receiver etc., the Tribunal came to a finding that the said judgement did not operate as res judicata, because, the Roza Trust was not represented in those proceedings and the question whether the properties were public trust properties was not before the Court. It was, therefore, held that Saiyed Musamiya Razvi was not prevented from taking up the stand that the properties in question belong to the Roza Trust. The Tribunal took into consideration the inscription on the marble tablet placed at the entrance of the Roza Trust, the account of which was given in the book of Professor Commissariat and the sanad granted in 1670 by Aurangzeb assigning six villages for the maintenance of the tomb and its custodian and found that there was dedication of these lands of four villages for charitable and religious purpose. The Tribunal considered the said Sanad, a translation of which was submitted before it, and held that all the requirements of the public religious endowment were satisfied. It held that, as per the Sanad, one Saiyed Mohammad was appointed by the `Farman' of Aurangzeb as the Sajjadanashin and Mutawalli of the Roza and he was granted six villages comprising 80 Bighas and 17 Biswas of land exclusively for expenditure on the sacred mausoleum under the heads of expenditure : the tutors, people of the mosque, the seekers of knowledge, the carpet spreaders, the light kindlers, the travellers, and all other aspects of beneficience and charity and for Madad-E-Maash of the Sajjadanashin, his sons and descendants. The Tribunal held that, in the translation of the Sanad which was supplied to it, there was no omission and the names of villages were clearly mentioned. It was held that the primary and dominant purpose of the grant was public religious and charitable and the maintenance of the Sajjadanashin (Madad-E-Maash) was only incidental to the primary object of the wakf. It was also held that the evidence regarding establishment of the wakf was so predominant that inconsistent conduct of Saiyed Musamiya Razvi or his ancestors cannot displace the existence of the wakf. Considering the status of Sajjadanashin as the holder of a spiritual office in the Roza Trust, the Tribunal held that a reasonable expenditure on the maintenance of the Sajjadanashin and his family must be held to be expenditure incurred for a religious purpose, and therefore, the benefit of section 11(1)(a) would be available to the assessee Roza Trust for such expenditure. It was held that the actual expenditure not exceeding Rs.30,000=00 a year over the maintenance of the Sajjadanashin and his family was allowable and should not be included in the income of the Roza Trust. The Tribunal, however, held that the Sajjadanashin receives such income by reason of his office and any monetary receipt in the hands of a person by reason of his office was the income in his hands and was taxable. Summarising its conclusions, the Tribunal held in paragraph 45 of its order, that the decision of the Bombay High Court in First Appeal No. 188 of 1952 did not operate as res-judicata and the Sajjadanashin Saiyed Musamiya Razvi was not prevented from taking up a stand that the properties belong to the Roza; that the assessee Roza was a wakf and the complex of buildings and the lands at Rasulabad were wakf properties belonging to it by dedication and user; that the lands at Vasna, Isanpur and Sarsa are wakf properties belonging to the Roza trust by reason of the Sanad of Aurangzeb; that the income spent by the assessee Musamiya Razvi on his maintenance as `Madad-E-Maash' was taxable in his hands; and that the actual expenditure on the maintenance of the Sajjadanashin and his family not exceeding Rs.30,000=00 a year, would not be included in the income of the Roza Trust. With these findings, the Tribunal restored the matter to the Income Tax Officer to assess the income of Rasulabad, Vasna, Isanpur and Sarsa lands as income of the Roza Trust and grant the benefit under section 11 of the said Act, subject to fulfillment of the conditions mentioned therein, bearing in mind that the income actually spent by the Sajjadanashin on his maintenance and that of his family not exceeding Rs.30,000=00 per year was not to be included in the income of the Roza Trust. 8.�The learned Standing Counsel appearing for the Revenue argued before us that the judgement of the Bombay High Court in First Appeal No. 188 of 1952 was a judgement rendered within the jurisdiction of the Court and was binding on all the authorities under the Bombay Public Trusts Act, because, the suit was of the year 1948, while the Bombay Public Trusts Act came into force from 1950. It was argued that the income tax authorities were not bound by any decision of the Charity Commissioner under the Bombay Public Trusts Act as to the existence of the public trust or about the fact whether any property belonged to the public trust. It was submitted that, in the process of assessment, it was incidental for the assessing officer to decide as to whom the property belonged, and therefore, notwithstanding the powers of the Charity Commissioner under the Bombay Public Trusts Act, the assessing officer can take a different view under the provisions of the Income Tax Act as regards the ownership of the properties which may have been registered as the properties of the Trust. The learned counsel strongly contended that the authorities under the Income Tax Act were functioning under the Central Law and therefore, they would not be bound by any decision taken by a functionary under the State law. Therefore, the tax authorities have independent powers under the said Act to decide the ownership of the immovable property for determining the question regarding the income received by the Public Trust and whether it was exempted under section 11 in light of the said provision read with section 143(2) and (3) of the said Act. It was further argued that the grant made by Aurangzeb was in favour of the Sajjadanashin and his family, and his descendants and therefore, it was a personal inam and cannot be treated as creation of a wakf. He therefore submitted that there was no dedication of the said lands to any religious or charitable purpose. It was also argued that, from the conduct of the Sajjadanashin and his family members, it was clear that they had treated the properties as if they were their private properties, and that is why, the administration suit was filed by one of the widows of the then Sajjadanashin which culminated in the decision of the Bombay High Court in First Appeal No. 188 of 1952, confirming the decree passed in the Administration Suit wherein the other widow and the present Sajjadanashin were parties. It was argued that the Tribunal had committed an error in fixing the amount of Rs.30,000=00 as an expenditure wholly incurred for religious purpose entitled to exemption under section 11 of the Act. According to him, such expenditure on Sajjadanashin and his family (Madad-E-Maash) was a private expenditure and not incurred for any religious purpose. He then argued that the authorities under the Bombay Public Trusts Act had committed an error in holding that the judgement of the Bombay High Court did not preclude them from taking a decision under the said Act, and that there was no bar of res-judicata. He submitted that the authorities under the Bombay Public Trusts Act were clearly bound by the decision of the Bombay High Court and could not have held that there was a public trust or that the properties in question were dedicated for religious and charitable purposes. It was submitted that, in any event, an application under section 72 of the Bombay Public Trusts Act was pending before the Ahmedabad City Civil Court and therefore, the decision under the Bombay Public Trusts Act registering the Roza Trust and showing the properties in question as the trust properties was not final. Even if it is to be treated as final for the purposes of the Bombay Public Trusts Act since that is a State law, the income tax authorities acting under the central law, i.e. the Income Tax Act, were in no way bound to follow the decisions taken under the Trusts Act. The learned Standing Counsel finally argued that the record shows that, in the past, the said Roza was registered as a wakf under the Musalman Wakt Act, 1923, but later on, on 3/9/1934, it was deleted by the Collector from the list of wakfs. Therefore, it could not have been again decided under the Bombay Public Trusts Act that the said Roza was a public trust, and that its properties were public trust properties. Therefore, the properties in question are required to be held of the individual assessee i.e. the Sajjadanashin and the income was assessable in his hands and not in the hands of the Roza Trust. The learned Standing Counsel supported the reasoning of the Income Tax Officer, and contended that the findings of the Tribunal were not warranted by the material on record. material on record. 8.1�The learned Standing Counsel for the Revenue, in support of his arguments, cited the decision of this Court in Commissioner of Income Tax, Gujarat III v. Thobhandas Jivanlal Gajjar, reported in 109 ITR 296 to point out that a Division Bench of this Court has held that, it cannot be said as a broad proposition of law that the decisions of civil courts would operate as res judicata in the references so as to bind the Government, which was admittedly not a party to the proceedings before the civil courts, or would preclude the Income Tax Officer, in the course of assessment, to investigate in whose hands a particular income should be assessed. Reliance was also placed on the decision in Keshavlal Punjaram v. Commissioner of Income Tax & Wealth Tax, reported in 141 ITR 466, in which the ratio of the aforesaid decision in Thobhandas's case was followed, and it was held that the Tribunal had rightly taken the view that the decision rendered by the civil court in the circumstances pointed out cannot preclude the statutory exercise by the Income Tax Officer to form his own opinion. 9.�The learned Senior Counsel, who appeared for the assessee, argued that, in view of the finding reached by the Charity Commissioner on 20-1-1966 in Appeal Nos. 60 and 71 of 1962 upholding the order of the Deputy Charity Commissioner dated 10-8-1962 registering the Roza Trust as a public trust and finding that the properties in question were the properties of the Roza Trust, it was not open to the Tax Authorities to take a different view of the matter. It was argued in the alternative that the finding reached by the Tribunal as to the ownership of the property was a finding of fact, which could not be challenged as perverse, because, it was based on the evidence on record. It was, therefore, not possible to take any view as to the ownership of the property other than the one taken by the Tribunal. It was submitted that, in any event, it was quite clear from the evidence on record that the findings reached by the Tribunal are correct. As regards the amount of expenditure upto Rs.30,000=00, which was required to be taxed in the hands of Saiyed Musamiya Razvi, the learned Senior Counsel submitted that the questions referred at the instance of Saiyed Musamiya Razvi in respect thereof were not pressed. He however submitted that this amount should be a permissible deduction, because, it was expended for the maintenance of the Sajjadanashin. It was then argued that the controversy in the administration suit which culminated in the decision of the Bombay High Court in First Appeal No. 188 of 1952 was entirely different, and the Roza Trust was not a party therein, nor was the question as to whether the properties in question were the properties belonging to the Public trust directly and substantially in issue. It was submitted that the suit was contested on an assumption that the properties belonged to Sajjadanashin as his private properties. It was contended that, in any event, it was a settled legal position that there was no res judicata against a decision being taken under the Bombay Public Trusts Act on the basis of an earlier order of the Civil Court, which could not have decided the questions entrusted to the Charity Commissioner under that Act. It was also submitted that the Rasulabad land was not the property of the trust and ought to have been held to be the property of the Sajjadanashin. 9.1�In support of his contentions, the learned senior counsel for the assessee cited the following decisions :- [a] The decision of the Bombay High Court in Zooleka Bibi v. Syed Zynul Abedin, reported in VI BLR at was contended that, in any event, it was a settled legal position that there was no res judicata against a decision being taken under the Bombay Public Trusts Act on the basis of an earlier order of the Civil Court, which could not have decided the questions entrusted to the Charity Commissioner under that Act. It was also submitted that the Rasulabad land was not the property of the trust and ought to have been held to be the property of the Sajjadanashin. 9.1�In support of his contentions, the learned senior counsel for the assessee cited the following decisions :- [a] The decision of the Bombay High Court in Zooleka Bibi v. Syed Zynul Abedin, reported in VI BLR at page 1058 was cited for the proposition that the office of the Sajjad-a-nashin is a religious office, and he may also be a Muttuvali of Wakf property dedicated to charitable purposes. On the facts of the case, the Court had come to the conclusion that, so far as the tomb of Syed Budruddin was concerned, he was not a religious person to whom any such sanctity was attached that his tomb could itself be considered a religious object. Consequently no property could be dedicated validly to support his tomb. It was held that there was no documentary or oral evidence in support of the alleged dedication. [b] The decision of the Bombay High Court in Narbheramji Gyaniramji Ramsnehi v. Vivekramji Bhagatramji Ramsnehi, reported in 41 BLR at page 939, was referred to for the observation that, a sanad granted under section 133 of the Bombay Land Revenue Code, 1879 was prima facie evidence of title. It was also held that such sanad was not conclusive evidence. [c] The decision of Oudh High Court in Shah Mohammad Naim Ata v. Mohammad Shamshuddin, reported in AIR 1927 Oudh 113 was cited for the proposition that the property given to the Sajjadanashin of a `khanqah' for the upkeep of the buildings and the school connected therewith was the wakf property and therefore, cannot be attached in execution of a decree against Sajjadanashin, nor can the rents and profits of the said property be held to be liable to attachment. Relying on the decision of the Privy Council in Jewan Doss Sahu v. Shah Kubeeruddin, reported in AIR 1924 P.C. 109, it was held that, in order to constitute a wakf, it was not necessary to use the word `wakf' and so long as it appears that the intention of the donor was to set apart specific property or the proceeds thereof for the maintenance or support in perpetuity of a specific object or a series of objects recognized as pious by the Musalman Law, it amounts to a valid and binding dedication. [d] The decision of a Division Bench of the Patna High Court in (Syed Shah) Muhammad Kazim v. (Syed) Abi Saghir, reported in AIR 1932 Patna 33 was cited to point out that, the essentials of a valid wakf are - an appropriator must destine the ultimate application of the income to the objects not liable to become extinct; the appropriation must be at once complete; there must be no stipulation in the wakf for sale of the property and expenditure of the price on the appropriator's necessaries; and perpetuity must be a necessary condition. It was also held that the provision for a Sajjadanashin was not a provision for the man, but for the institution. A `khankah' cannot exist and continue without a Sajjadanashin. A Sajjadanashin is an integral part of the institution and the central figure so to speak therein. Therefore, provision for his maintenance and that of his descendants is the provision for him as a head of the institution. It is therefore a trust and not a personal grant. [e] The decision of the Bombay High Court in Mahomedhussein Daud Bhai v. Collector of Broach and Panchmahals, reported in AIR 1945 BOM. 157 and expenditure of the price on the appropriator's necessaries; and perpetuity must be a necessary condition. It was also held that the provision for a Sajjadanashin was not a provision for the man, but for the institution. A `khankah' cannot exist and continue without a Sajjadanashin. A Sajjadanashin is an integral part of the institution and the central figure so to speak therein. Therefore, provision for his maintenance and that of his descendants is the provision for him as a head of the institution. It is therefore a trust and not a personal grant. [e] The decision of the Bombay High Court in Mahomedhussein Daud Bhai v. Collector of Broach and Panchmahals, reported in AIR 1945 BOM. 157 was cited for the proposition that an inquiry under the Musalman Wakf Act, 1923 as amended by Bombay Act No. 18 of 1935 was confined to cases where existence of wakf was admitted. It was held that where the existence of the wakf was disputed, the District Judge had no jurisdiction to make an inquiry into its existence. This decision was relied upon to meet with the contention raised on behalf of the revenue that the Roza trust was earlier registered under the Musalman Wakf Act, but it was removed from the list by the collector on 3-9-1934. [f] The decision of the Supreme Court in Dhaneshwarbuwa Guru Purshottambuwa v. The Charity Commissioner, State of Bombay, reported in AIR 1976 SC 871 was relied upon for the proposition that it would not be correct to say that the expression in this sanad (an ancient Royal grant) cannot be in any way determinative of the nature of the temple or religious endowment as a public trust. In the absence of anything to the contrary of a convincing nature, a grant by the Government in favour of the temple (a Devasthan) describing the property to be in charge of a manager leads to an unerring inference that the property is public religious endowment. It was held that when the origin of an endowment is obscure and no direct oral evidence is available, the Court will have to resolve the controversy about the character of the trust on documentary evidence, if any, the object and purpose for which the trust was created, the consistent manner in which the property has been dealt with or managed by those in charge, the manner in which the property has long been used by the public, the contribution of the public, and other aspects mentioned, which are all important elements in determination of the question whether a property is a private or a public religious endowment. [g] The Full Bench Judgement of this Court in Shree Bhagvatacharya Narayancharya Public Trust v. State of Gujarat, reported in XLII (2) GLR 1356 was cited to point out that, in a group of matters in which even the Roza trust was one of the petitioners, the Full Bench held that, since the Gujarat Devasthan Inam Abolition Act, 1969 and the Gujarat Devasthan Inam Abolition (Amendment) Act, 1977 were both placed in the Ninth Schedule, they were immune from any challenge on the ground violation of the fundamental rights. It was submitted that, in respect of these lands which were treated as Devasthan Inam lands, the Devasthan Inam was abolished under this Act and therefore, even the subsequent events show that these properties were Devasthan properties and were required to be assessed in the hands of the Roza Trust. [h] The decision of the Supreme Court in Sri Agasthyar Trust v. Commissioner of Income Tax, reported in 236 ITR 23 was cited to point out that, in a case where there was nothing to indicate that it was brought to the notice of the Supreme Court in the earlier case before it (East India Industries' case), that the trust had been Ninth Schedule, they were immune from any challenge on the ground violation of the fundamental rights. It was submitted that, in respect of these lands which were treated as Devasthan Inam lands, the Devasthan Inam was abolished under this Act and therefore, even the subsequent events show that these properties were Devasthan properties and were required to be assessed in the hands of the Roza Trust. [h] The decision of the Supreme Court in Sri Agasthyar Trust v. Commissioner of Income Tax, reported in 236 ITR 23 was cited to point out that, in a case where there was nothing to indicate that it was brought to the notice of the Supreme Court in the earlier case before it (East India Industries' case), that the trust had been created by virtue of the document dated November 28, 1941 and there was no specific reference to that document in the judgement of the Court and the judgement did not indicate that the question relating to the validity of the deed dated July 1, 1944, was ever in issue before the Supreme Court, the earlier decision in East India Industries' case did not and could not preclude the appellants from contending that the deed dated July 1, 1944 was illegal and of no consequence, and what had to be seen was whether the assessee was a public charitable trust on the basis of the partnership deed dated November 28, 1941, and that the power to revoke the trust was taken away by a subsequent document dated August 26, 1943. It was held that the Tribunal was therefore right in considering the objects and coming to the conclusion that the appellant was a public charitable trust and was entitled to exemption under section 4(3)(1) of the Indian Income Tax Act, 1922 and section 11 of the Income Tax Act, 1961. [i] A Division Bench judgement of this Court in a Letters Patent Appeal in Sayed Mohomed Baquir-El-Edroos Valde Sayed Jaffer-El-Edroos Sajjadnashin of Edroos Gadi v. Alimiya Mahmadmiya, reported in 13 GLR 285 was cited for the proposition that the statutory authority is bound to hold an inquiry under section 19(1) of the Bombay Public Trusts Act as laid down by the statute and by no stretch of imagination, such statutory officer could ever be precluded from performing his statutory duties by invoking a rule of estoppel, as the result would be manifestly unjust, if the statutory inquiry as per the norms laid down in the statute is to be stultified. It was observed that the norms to be applied for determining the question as to what is a public trust are already settled by the Act and a statutory authority could never be precluded from taking fresh evidence on the ground that there is an estoppel as regards any particular issue because of some earlier inquiry which could never be as per the norms laid down under the Bombay Public Trusts Act. It was held that the earlier litigation under section 92 of the Civil Procedure Code, whether the wakf was a public trust or not within the meaning of the Act was never directly and substantially in issue and that the earlier finding could never preclude the present inquiry by reason of the doctrine of res-judicata. [j] The decision of the Supreme Court in Commissioner of Income Tax v. Kamla Town Trust reported in 217 ITR 699 was cited for the proposition that the Civil Court had jurisdiction to rectify a trust deed and that the trust deed as amended was binding on the income tax authorities. The respondent trust was held to be entitled to exemption from income tax under section 11 of the Act subject to compliance with the conditions laid down therein. 10.�It will be noticed that the Income Tax Officer the Civil Procedure Code, whether the wakf was a public trust or not within the meaning of the Act was never directly and substantially in issue and that the earlier finding could never preclude the present inquiry by reason of the doctrine of res-judicata. [j] The decision of the Supreme Court in Commissioner of Income Tax v. Kamla Town Trust reported in 217 ITR 699 was cited for the proposition that the Civil Court had jurisdiction to rectify a trust deed and that the trust deed as amended was binding on the income tax authorities. The respondent trust was held to be entitled to exemption from income tax under section 11 of the Act subject to compliance with the conditions laid down therein. 10.�It will be noticed that the Income Tax Officer had rejected the contention of the assessed Roza Trust on the ground that the judgement of the Bombay High Court in First Appeal No. 188 of 1952 rendered on 24th September 1957 made it conclusive that the properties of villages Isanpur, Vasna and Sansa were not to be treated as the properties of the Roza Trust, but they were a "jat-inam" in favour of the ancestors of Saiyed Hyderbax. It was further held that since Saiyed Musamiya was entitled for Madad-E-Maash and his ancestors had entered into many acts of transferring properties and creating mortgages and treating the properties as personal properties in the Court cases the lands in question were not the properties of the wakf. Observing that the Sajjadanashin Musamiya had full discretion to apply income of the trust to any charitable or non-charitable objects, the I.T.O. relying upon the decision of the Supreme Court in East India Industries (Madras) Pvt. Ltd. v. Commissioner of Income Tax, reported in 65 ITR 611, held that the whole trust failed and no part of its income was exempted under section 11 of the said Act. According to the learned counsel for the Revenue, there was no valid reason for the appellate authority to upset these findings which were approved by the first appellate authority. 11.�It will be noticed that the Tribunal, on its own appreciation of the evidence on record, came to the conclusion that the properties in question belong to the Roza Trust and therefore, its income was assessable in the hands of the Roza Trust. The Tribunal did not blindly rely upon the findings given by the Charity commissioner and made its own assessment of the material on record for reaching the said conclusion. In the process, it held that the decision of the Bombay High Court in First Appeal No. 188 of 1952 did not preclude inquiry into the question as to whether these properties were belonging to the said public trust or not. It was held that the decision of the Bombay High Court did not operate as res-judicata. 12.�We have noted above the fact that, in the inquiry No. 176 of 1956 initiated under section 19 of the said Trusts Act of 1950, by order dated 7-3-1956, the Deputy Charity Commissioner held that the Roza trust was a public trust and that the property shown in the application was the property of the trust. The decision of the Deputy Charity Commissioner is at Annexure `H' in the paper-book No.2 of these proceedings. Though the inquiry was initiated suo motu, as noted in the order of the Deputy Charity commissioner, Syed Musamiya filled up the form for the registration of this public trust as the sole trustee thereof, which was exh.180 in those proceedings and from that stage, the inquiry which was started as a suo motu inquiry, was continued on the basis of that application exh.180. As per the said application exh.180, even according to the Sajjadanashin Musamiya, the villages of Vasna, Muktampur, Isanpur, Sarsa and Vasna Buzarg (which was under the management of the Collector), Kheda, were all Devasthan Inam al