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TMI Blog1968 (2) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... rty of Chiranjilal Khetan deceased. The valuation of that share was fixed at Rs. 54,720.00. Deokinandan appealed against the order of assessment. The appeal was partly allowed by the Central Board of Revenue. But the Central Board of Revenue did not accept the appellant's contention that the property at Hardwar and Jhunjhnu was endowed property. Being dissatisfied with the appellate decision, Deokinandan applied for a reference to this court. Accordingly, the Central Board of Revenue has referred the following question of law to this court : "Whether, on the facts and in the circumstances of the case, the inclusion in principal value of the estate of the deceased of the sum of Rs. 54,720 as representing 1/5th share of the deceased in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site, that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive ? Is it as of right or permissive in character ? Thus, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actually filed went a good deal beyond the limited question. We may not, therefore, make use of the lengthy affidavit filed before the Central Board of Revenue. In the statement of the case we find the following observations by the Central Board of Revenue : " The Assistant Controller observed that in the case of Commissioner of Income-tax v. Shri Thakurji Lakshmi Nathji in which the Allahabad High Court held that the endowment created by Seth Ram Bilas Rai and others in 1919, was a public religious charitable trust, no reference had been made to the properties now in dispute as belonging to the trust." That observation in the statement of the case is somewhat misleading. The report in Commissioner of Income-tax v. Thakurji Lakshmi Nath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endowment of the year 1919 made no mention of the property now in dispute : 2. The property was recorded in the name of Seth Ram Bilas Rai till his death in the year 1936 ; 3. Seth Chiranjilal wrote to the Municipal Board requesting that lease be renewed in favour of the firm, Seth Ram Karan Das Ram Bilas Rai. On the other hand, the Central Board of Revenue appears to have found the following facts, which support the assessee's contention : 1. The income from the property at Hardwar and the shops at Jhunjhnu was included in the account books of the trust along with other admitted income of the trust 2. The expenditure on the trust at Hardwar and other places was debited to the trust account; 3. The income from the property at Hardwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appears to have been filed some time in April, 1957. That was soon after the death of Chiranjilal Khetan. If regard be had to the three circumstances upon which the Assistant Controller and the Central Board of Revenue have relied in support of the view that the property in dispute belonged to the Hindu undivided family, it will be seen that each one of the circumstances is in no way inconsistent with the case of the assessee that the property is indeed endowed property. The deed of endowment executed in the year 1919, does not mention the property. But, it must be remembered that the assessee's case is that the properties were acquired by Ram Bilas Rai, the dharam karta, after the year 1919. There is no finding that the property was acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case taken by them, a position which they would not have assumed if the property was not in fact endowed property. It is true that there is no deed of dedication covering the property in dispute. But no writing is necessary to create an endowment (see Principles of Hindu Law by Mulla, 13th edition, section 407 at page 438). The proper inference to be drawn from application of profits of property has been explained in the Principles of Hindu Law by Mulla under section 409 at page 441 : " Where there is no instrument of grant, the mere fact that the profits of any land are being used for the support of an idol is not proof that land formed an endowment for the purpose; but where there is apparently good evidence going back for a long period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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