TMI Blog1979 (3) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... rty for wealth-tax assessments in all these years. He further pointed out that the assessee had mortgaged this property to the Egmore Benefit Society and obtained loan for carrying out repairs to the property. He, therefore, held that the entire income from the property would be assessed in the hands of the assessee as was done in the earlier years. He further held that the assessee had claimed the interest paid to his mother on the amounts borrowed by him from her for repairing the property in the earlier years and that the same had been allowed. He, therefore, held that there was no justification for the assessee to treat 50 per cent of the income from this property as belonging to his mother. Accordingly he brought the net property incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d he had no capacity to execute a will. He further argued that it was common ground that no probate had been obtained for this will and that under s. 213 of the Indian Succession Act, no claim of an executor or of a legatee can be established unless the will was probated. He argued that this provision put a bar against the unprobated will being looked into for the purpose of determining the title or ownership of the property. He contended that the will should be ignored and under the provisions of the Hindu Succession Act, 1956, the appellant would be entitled to a 50 per cent share only in this property, the other 50 per cent being the property of his mother Mrs. A.V. Patro who gets an absolute interest under s. 14 of the Hindu Succession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he will of Sri A.V. Patro show that the property in question was inherited by Sri A.V. Patro from his father Sri A.P. Patro. Since this aspect of the case was not examined by any of the departmental authorities, it was necessary that the matter must be remanded to the ITO for full enquiry. She next argued that it was not open to the appellant to contend that the will should be ignored. She pointed out that the appellant's mother Mrs. A.V. Patro got the will of her husband registered after his death, that she had given full effect to the terms of the will, carried out the terms of the will and handed over the property to the appellant on his attaining the majority. She argued that the terms of the will had been accepted and acted upon by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty on the basis of this will, it was not sustainable. 7. We have carefully considered the rival submissions of parties and looked into the materials placed before us. 8. The short question in this appeal is whether the appellant is the owner of the property at 38 Whites Road, Madras-14, known as 'Keshav Bagh' and whether he was not liable to tax in respect of the entire income from this property or any portion thereof as claimed by him. In support of this plea, the appellant relies on the legal opinion, which has been fully extracted in the order of the AAC and also on the provisions of s. 57 and s. 213 of the Indian Succession Act. But the Department relies on the conduct of the appellant for the past two decades when the entire incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuted by the assessee in favour of the Egmore Benefit Society. The legal opinion relied on by the appellant shows that the said mortgage deeds were executed both by the appellant and his mother. It may be necessary to look into the said mortgage deeds to find out the capacity in which the appellant s mother had joined in the execution of the said documents. It is after examining all these materials a proper conclusion can be arrived at regarding the ownership of this property. 11. As rightly pointed out for the Revenue, the claim of the appellant that no portion of the income form this property was chargeable in his hands as an individual is entirely a new claim as it was never before any of the authorities below. This also requires furth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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