TMI Blog1967 (4) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... h Bysack, a Hindu governed by the Bengal school of Hindu law, died on July 10, 1887, leaving behind his widow, Kailashmoney Dasi, a son, Sarbaranjan Bysack, and his nephew, Dakhinaranjan Bysack. He left a will dated May 30, 1887, and a codicil whereby he bequeathed his entire estate to two deities, Sree Sree Iswar Balaram Jew and Radhakatna Jew subject to the payment of certain legacies, annuities and expenses. There was a provision in the will that, in the event of the bequest or any part thereof in favour of the deities being held by a competent court to be void, the estate will be inherited by his heirs, his son, Sarbaranjan Bysack, and his nephew, Dakbinaranjan Bysack. Probate of the will was duly granted on August 18, 1887. The nephew, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his report on July 4, 1900, stating : " It is necessary to provide Rs. 1,500 annually, for the sheba of the said Thakoors Bolloramjee and Radhakanjee and Rs. 500 annually for gifts and donations on poojhas and for festival occasions and for that purpose the following properties in Calcutta should be set apart, namely, No. 1, Chytan Sett Street ; No. 60, Banstollah Street ; No. 85, Upper Chitpore Road ; and No. 16, Brindaban Bysack Street. " The report was accepted by the High Court and a final decree was passed on September 22, 1903. Excepting these four properties, the other properties of the testator were divided between Purnashashi Dassi and Sarbaranjan Bysack. For the assessment years 1952-53 to 1955-56, Sarbaranjan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said two deities. It was alleged that the income of the disputed properties had been diverted at source as a result of the decree of the High Court and therefore the income was not taxable in the hands of the assessee. The Appellate Tribunal rejected the contention of the assessee and upheld the order passed by the Income-tax Officer. As desired by the assessee, the Appellate Tribunal referred the following question of law to the High Court under section 66(1) of the Income-tax Act : " Whether upon a construction of the will of Kedarnath Bysack dated May 30, 1887, and the pleadings and proceedings of Suit No. 363 of 1896, in the High Court of Judicature at Fort William in Bengal (Sm. Poornasasi Dassi v. Sm. Koylashmoney Dassi Anr.) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, there is no justification for the argument put forward on behalf of the appellant. It is important to notice that, in the preliminary decree in Suit No. 363 of 1896, the bequest to the two deities was declared invalid by the High Court. The result was that Sarbaranjan and the heir of Dakhinaranjan became entitled to the residuary estate. The preliminary decree directed " an enquriy as to what provision should be made for carrying on the worship of the two deities, Sri Sri Bolloramjee and Radha Kant Jew, ......... in the way the same was carried on by the said testator and his mother ". The preliminary decree proceeded to state : " And it is further declared that the said defendant, Sreemutty Koylashmoney Dassee, is entitled to act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he four properties should be vested in the deities. The intention was that a fixed sum of Rs. 2,000 annually should be spent for sheba and worship of the deities and it is not possible to draw any inference that there had been a gift of the four properties to the deities. The words " set apart " used in the commissioner's report only indicated that the expenses of worship and puja of the deities should be met from the income of the four properties but not that the title and ownership of the properties should pass to the deities. In any case, even if there is an ambiguity in the commissioner's report, it should be read in the context and background of the preliminary decree of the High Court in suit No. 363 of 1896. Having regard to the clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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