AJIT K. SENGUPTA, J. ( 1 ) THIS reference under Section 256 (1) of the Income-tax Act, 1961, relates to the assessment years 1980-81 and 1982-83. ( 2 ) SHORTLY stated, the facts are that the assessee, Naresh Sengupta Foundation, has been assessed by the Income-tax Officer in the status of an association of persons for the assessment years 1980-81 and 1982-83. It was created by a deed of trust dated December 26, 1979. The trustees of the trust, according to the said deed, were Sri Naresh Chandra Sengupta as chairman, his wife, Smt. Shefali Sengupta, and two others, viz. , Sri Biswanath Chakraborty and Smt. Arati Ghosh. It is mentioned in the deed that, in the case of death of the donor-founder who is also chairman-trustee, his seniormost descendant shall become one of the trustees in his place and similarly after the death of any such descendant, the latter's seniormost heir shall become one of the trustees. Thus, the office of the trusteeship shall be hereditary. It is further mentioned that the seniormost heir of the family of the donor-founder's descendants irrespective of whether male or female shall always become one of the trustees according to the rule of primogeniture. Similarly, in the case of death of Smt. Shefali Sengupta, wife of the donor-founder, her second eldest heir shall become a trustee in her place and as such the said trusteeship shall also be hereditary according to the rule of primogeniture in the second line of heirs. The beneficiaries of the trust are as under : (i) 50 per cent. of the gross income derived from the trust properties, donations and other sources will be utilised towards establishment charges. (ii) 10 per cent. of the said gross income will be set apart as reserve fund for expansion and construction of the buildings. (iii) 10 per cent. will be utilised for repairs of the buildings, payment of Government revenue, municipal taxes, etc. , and for meeting all recurring and non-recurring charges for maintenance of the buildings and properties of the trust. (iv) 12. 5 per cent. shall go to the donor-founder and/or his descendants-trustees for expenses towards social and customary needs of the donor-founder's family. ( 3 ) IT is also a relevant fact that there is one Bharati Welfare Society in which the donor-founder, Shri Naresh Chandra Sengupta, is said to be interested as a social worker. (iv) 12. 5 per cent. shall go to the donor-founder and/or his descendants-trustees for expenses towards social and customary needs of the donor-founder's family. ( 3 ) IT is also a relevant fact that there is one Bharati Welfare Society in which the donor-founder, Shri Naresh Chandra Sengupta, is said to be interested as a social worker. He is said to have taken the initiative for the formation of the said society for spreading education amongst boys and girls. The said society has been registered under the Societies Registration Act. However, it is specifically mentioned in the deed of trust that the said society has no connection with and interest in the properties of the assessee-trust. The assessee-trust leased out its property to the said society and as such it has rental income. The assessee-trust made some donation to the said society. ( 4 ) THE assessee claimed itself as a charitable trust and as such claimed exemption under Section 11 of the Act. The Income-tax Officer held that it was not a charitable trust. Thus, the benefit of Section 11 was denied to it. ( 5 ) THE assessee went in appeal before the Appellate Assistant Commissioner of Income-tax who held that the benefit of exemption under Section 11 of the Act should be allowed to the assessee. His reasoning and finding is only in these words :"considering the facts of the case, I am of the opinion that this is a public charitable trust. . . . On going through the submissions made by the authorised representative, I am satisfied that the appellant-trust should be treated as public charitable trust and the benefit of exemption under Section 11 of the Act should be allowed as provided in law and the provisions of Section 164 (1) do not attract this case. " ( 6 ) THE Revenue then came up in appeal before the Tribunal. The Tribunal held as under :"5. It is quite plain that the learned Appellate Assistant Commissioner fell into error in allowing benefit of exemption under Section 11 of the Income-tax Act. The facts narrated above clearly show that the assessee-trust has no element of charity. Fifty per cent. of its income is being applied to its own establishment and 10 per cent. for its own reserve fund and again 10 per cent. for payment of taxes on its properties. The facts narrated above clearly show that the assessee-trust has no element of charity. Fifty per cent. of its income is being applied to its own establishment and 10 per cent. for its own reserve fund and again 10 per cent. for payment of taxes on its properties. Only a small amount of 12. 5 per cent. is directed to be utilised for scholarship to students and the choice of such students is solely at the discretion of the trust committee of which the founder-trust is the chairman and his wife is another trustee and, after their death, the trustees will be appointed only from amongst their legal heirs. The two trustees, viz. , Sri Biswanath Chakraborty and Smt. Arati Ghosh are apparently strangers to the family of the vendor-trustee but none the less the extent of their representation is apparently ineffective. " ( 7 ) FROM the facts and circumstances of this case, the following question of law has been referred to this court :"whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee is not entitled to the benefit of exemption under Section 11 of the Income-tax Act, 1961 ?" ( 8 ) AT the hearing before us, Mr. Khaitan has drawn our attention to the trust deed and has submitted that the Tribunal fell into an error in holding that the objects of the trust are not charitable inasmuch as 12. 5 per cent of the gross income of the trust had been applied for the benefit of social and customary needs of the donor-founder's family. ( 9 ) OUR attention has been drawn by Mr. Khaitan to the order passed by the Income-tax Officer under Section 250 of the Act for the assessment year 1982-83 from which it appears that the trust applied its income to the extent of Rs. 25,000 for charities by making donations to Bikash Bharati Welfare Society which is exempted under Section 80g of the Income-tax Act, 1961. It also appears from the annual report of the trust committee for the year ending on March 31, 1982, that the activities were undertaken by the trust in furtherance of the objects of the trust. 25,000 for charities by making donations to Bikash Bharati Welfare Society which is exempted under Section 80g of the Income-tax Act, 1961. It also appears from the annual report of the trust committee for the year ending on March 31, 1982, that the activities were undertaken by the trust in furtherance of the objects of the trust. It also appears that, in a meeting of the trustees, it was held that shares in the trust income under the trust deed will not be claimed by any member of the family of the founder and the amount earmarked for the members of the founder had been transferred to charity for undertaking the charitable activities. The particular clause that authorises the trustees to pay 20 to 50 per cent. of the gross income of the trust for expenses towards social and customary needs of the donor-founder's family was treated as inoperative and unenforceable. This fact was not considered by the Tribunal. ( 10 ) THE argument of the learned advocate for the assessee is of no avail because, in the present case, the trust was created in 1979 by a deed of trust executed on December 26, 1979. Therefore, the trust in question came into force after the commencement of the Income-tax Act, 1961. Under the provisions of the income-tax law as re-enacted in the Act of 1961, any charitable trust which holds property in part for charitable purposes is not entitled to the exemption as a charitable trust. A trust in part charitable was, however, entitled to exemption in respect of part income applied for charitable purposes, under the repealed Act of 1922. ( 11 ) THE relevant extract of Sub-section (1) of Section 11 makes this position clear :"11 (1) Subject to the provisions of Sections 60 to 63, the following income shall not be included in the total income of the previous year of the person in receipt of the income-- (a) income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India ; and, where any such income is accumulated or set apart for application to such purposes in India, to the extent to which the income so accumulated or set apart is not in excess of twenty-five per cent. of the income from such property ; (b) income derived from property held under trust in part only for such purposes, the trust having been created before the commencement of this Act, to the extent to which such income is applied to such purposes in India ; and, where any such income is finally set apart for application to such purposes in India, to the extent to which the income so set apart is not in excess of twenty-five per cent. of the income from such property. " ( 12 ) IN this case, as we have already seen, 12. 5 per cent. of the income from the trust is to be given over to the members of the founder's family to meet its social and customary needs. Thus, the founder's family has a right to receive 12. 5 per cent. of the income and the family is given the further right to have dominion and control over that part of the income and to spend it in the manner they consider to be their social and customary obligation. The words "social and customary needs" are too vague to delimit the family's power to spend the income. The trustees shall have no say in the matter of the application of the said part of the income. ( 13 ) THEREFORE, in the face of this particular term in the trust deed, it cannot be said that the property is held under trust wholly for charitable purposes. The trustees are only obligated to apply the income to the charitable purposes to the exclusion of 12. 5 per cent. of the income. The position could have been different if 87. 5 per cent. of the property had been held under trust for charitable or religious purposes. In that case, part of the property could be said to be the property held under trust wholly for charitable purposes not attracting the vice of partial charity. See CIT v. P. Krishna Warriar. Where, however, the settlor directs the trustees to utilise an aliquot part of the income of the property for charity, the case falls in the class of property held in part for charitable purposes. This has been held by the Bombay High Court in Chaturbhuj Vallabhdas v. CIT [1946] 14 ITR 144. See CIT v. P. Krishna Warriar. Where, however, the settlor directs the trustees to utilise an aliquot part of the income of the property for charity, the case falls in the class of property held in part for charitable purposes. This has been held by the Bombay High Court in Chaturbhuj Vallabhdas v. CIT [1946] 14 ITR 144. In the case before us, 7/8ths of the income can be said to be settled for charity and the balance income for the members of the settlor's family. ( 14 ) THE trust income could have been entitled to exemption on that part of it as is mandatorily to be spent for charity if it were created before the commencement of the present Act. But, unfortunately for the assessee-trust, it is created after the said deadline. ( 15 ) THE contention on behalf of the assessee-trust that a small fraction only could be applied for the benefit of the founder's family is not helpful. What is material is that a part of the income is available to the benefit of charity or for purposes which cannot be said to be for charity or charitable purposes. The further argument is advanced on behalf of the assessee that the benefit as available under this trust has not actually been claimed or availed of by the members of the family of the founder and the amount earmarked for them had also been transferred to the charity for undertaking charitable activities. That is also of no consequence so long as the trust deed contains a term conferring benefit on the members of the settlor's family. The fact that the trust holds the property in part for charity is not effaced by that benevolent act of the members of the settlor's family. ( 16 ) IT has been further urged that the trustees treated the particular term of the trust deed beneficial to the members of the founder's family as inoperative and unenforceable. This also does not alter the position because it is by now well-settled that the deed of trust for charity cannot be revoked or varied by the founder unless a valid power of revocation was reserved at the time the trusts were declared. In CIT v. S. Ramaswamy Iyer, it has been held that a settlor cannot vary the purpose of a trust subsequently without a power being reserved therefor in the original deed. In CIT v. S. Ramaswamy Iyer, it has been held that a settlor cannot vary the purpose of a trust subsequently without a power being reserved therefor in the original deed. Even a supplemental deed executed afterwards would not alter the provision contained in the original trust deed. In case the trust is wholly for charitable purposes as per the original deed, it will qualify for exemption under Section 11. Similarly in CED v. K. A. Kader, it was decided that, in the absence of a reservation, the settlor cannot alter the terms of a wakfnama nor can he make a change in the personnel for the mutawallis. On top of all, a deed of trust that qualifies for exemption under Section 11 cannot have any stipulation reserving any power to revoke or alter the terms of the trust deed because that would lend to the trust the character of a revocable trust attracting the provisions of Section 61 read with Section 63. Besides, the trustees have no power to alter the terms of the trust deed. In Shervani Charitable Trust v. CIT [1968] 69 ITR 750 (All), the terms of the trust document empowered the trustees to spend one-third income for the maintenance and support of the members of the Shervani family and their relatives and those who, in the discretion of the trustees, deserved such support. Eventually, the trustees passed a resolution that the intention of the settlor was never to limit the benefit of the expenditure to one-third of the income of the trust for the members of his family and relatives only, but that there should be no bar against applying the income for the support of such persons. It was held that the resolution was the making of a rule for the guidance of the trustees. It has no effect on, much less could it override, the express provision of the trust. The resolution could not be utilised in support of the plea that the instrument of trust did not stipulate the income to be compulsorily applied for the relations of the founder. A property can be said to be held under trust for the purpose for which the settlor has created the trust and not for the purposes for which the trustees may utilise or decide to utilise the income from such trust property. A property can be said to be held under trust for the purpose for which the settlor has created the trust and not for the purposes for which the trustees may utilise or decide to utilise the income from such trust property. This position of law was laid down by the Andhra Pradesh High Court in CWT v. Trustees of H. E. H. the Nizam's Religious Endowment Trust. ( 17 ) OUR attention has been drawn to a decision of the Supreme Court in Dharmaposhanam Co. v. CIT but that case does not help the assessee. In that case, the object of the trust was, among other objects, to promote industry. The Supreme Court held that operation of an industry envisaged a profit-making activity in the course of carrying out that purpose depending on the nature and purpose of the public good. Since it was open to the assessee to apply its income from business to any of the objects and no definite part of the assessee's income was related to charitable purposes, its income could not be exempted under Section 11. Therefore, reliance upon the said decision of the Supreme Court is misplaced. ( 18 ) THE facts as well as the issues falling for determination in that case are distinguishable. The Supreme Court was primarily concerned with the situation that there was no demarcation of the income to be applied to charitable and non-charitable objects contained in the memorandum of association of the company. It was urged before the Supreme Court that taking a view of the totality of the objects, the assessee-company could be said to have, on the whole, charitable purposes but such submissions did not weigh with the Supreme Court. It was, further, argued on behalf of the assessee that whether a trust is for charity or not should be determined by reference not only to the objects but also to the activity actually conducted by the assessee. The court did not agree and held that whether a trust is for charitable purposes is determinable by reference to all the objects for which the trust is created and the actual activity conducted is of no relevance. In the present case, however, there is a clear-cut demarcation of the income to be applied for charitable purposes and to the non-charitable purposes. Therefore, the subject-matter of decision is altogether different. In the present case, however, there is a clear-cut demarcation of the income to be applied for charitable purposes and to the non-charitable purposes. Therefore, the subject-matter of decision is altogether different. Before the Supreme Court, it was never in question whether, even if the income in a definite or a fixed part alone is for charitable purpose, the exemption under Section 11 (1) shall avail, despite the fact that the trust was created on or after April 1, 1962, i. e. , the commencement of the new Act of 1961. Much stress has been laid by learned counsel for the assessee on the following observations of the Supreme Court :"it would be a different case where one or more of the objects in the memorandum of association, although included therein, were never intended to be undertaken. If there is evidence pointing to that conclusion, clearly the court will ignore the object and proceed to consider the case as if it did not exist in the memorandum. " ( 19 ) THIS dictum, in the context of the issue that falls before us for determination, is not of much assistance, because the instrument creating the trust contains, in terms, a provision conferring on the settlor's family a fixed share of the income. We consider that the existence of such provision in the instrument of trust is evidence which goes against the assessee-trust Above all, as we have earlier mentioned, the Supreme Court did not have any occasion to go into the question whether, even if a fixed or aliquot part of the income is earmarked for the private benefit of the settlor's relatives, the trust is entitled to exemption, regard being had to the fact that it owes its origin to a date that falls after the commencement of the Act of 1961. ( 20 ) WE are, therefore, of the view that the trust in the present case does not meet the requirement of Sub-section (1) of Section 11. In the premises, the Tribunal, in the facts and circumstances of the case, was correct in coming to the conclusion that the assessee is not entitled to the benefit of exemption under Section 11. ( 21 ) ACCORDINGLY, we answer the question in the affirmative and against the assessee. There will be no order as to costs.