1. This appeal arises from an order passed by the learned District Judge of Poona dismissing Miscellaneous Application No. 325 of 1954 filed under Section 72 of the Bombay Public Trusts Act by the trustees of the Kesari Maratha Trust, and it raises an interesting question under the Bombay Public Trusts Act, namely, whether the Kesari Maratha Trust is a pub-lic trust under the Act

2. The circumstances under which the trustees of the Kesari Maratha Trust filed the above appli- cation under Section 72 of the Bombay Public Trusts Act are these: The two newspapers "Kesari and "Maratha" were started by Lokmanya Tilak in Poona. Lokmanya Tilak died in the year 1920. Be- fore his death he made a will on 5-4-1918, at Colombo making certain dispositions of his property. The only provisions of the will with which we are concerned in this appeal are those which occur under the caption "Chhapkhana" (printing press). The testator stated in this part of his will that a public trust had been created by him in respect of his "newspapers, office, press, foundry, library of the newspapers and the monies which had been depo sited as security." The testator also gave a direction that an amount of Rs. 75 per month should be paid to his son as rent for the premises occupied by the office of the newspapers, the printing press, etc. There was a further direction for the continuance of a certain relative of the testator in the office of the manager of the Press. It was also directed by the testator that the editorial policy of the news papers Kesari and "Maratha" should continue unchanged. From the words in Clause 1 under the caption "Chhapkhana" (printing press), one might get an impression that a public trust was constituted by the testator by his will in respect of the newspapers, the printing press, etc. However, as no trust was in fact created by Lokmanya Tilak during his life-time, his sons and executors under his will executed a trust-deed on 16-8-1920. That trust-deed is Ex. 12 on the record of this case. It may be noted that the will made by Lokmanya Tilak is also a part of this record and it is Ex. 11. The trust-deed dated 16-8-1920, stated that it was executed for fulfilling the object of Lokmanya Tilak and for giving effect to the provisions of his will. Clause 1 of the trust-deed provides as follows:

"Ever since the time the deceased Lokmanya Bal Gangadhar Tilak took up the newspapers, namely, the "Kesari" and the "Maratha, he with an object in view did acts of public service such as awakening the consciousness of political rights among the people by spreading through those papers among them the knowledge of politics and organising various other public movements and doing other things calculated to promote the national ideal, and this deed of trust is made to serve as a means of carrying out that very object of his for ever and without any interruption after his death."

There was a direction in the trust-deed that the policy of the newspapers was to be decided upon by the trustees in accordance with the testators wishes expressed by him in his will. The trust-deed further made a provision for reverter in case the object of the trust failed entirely. In Clause 11 of the trust-deed, there was a provision made for the celebration of Ganesh Utsav out of the funds of the trust. In the year 1936 a question arose whether this trust (Kesan Maratha Trust) was a charitable trust as contemplated by the Income-tax Act. It was the contention of the trustees that the income of this trust was exempt from being assessed to income-tax. On the other hand, the income-tax authorities wanted to levy a tax upon the income of this trust. This resulted in a reference, being Reference No. 3 of 1936, being made to the High Court under Section 66, Sub-section (2), of the Income-tax Act. It was a reference made by the Commissioner of Income-tax. That reference was heard by a Division Bench of this Court consisting of Chief Justice Beaumont and Mr. Justice Rang