TMI Blog1951 (3) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... enjoyed by Ramjibhai during his lifetime; after his death the income was to be enjoyed by Ratilal and certain right of residence was given to Kamlawanti. After the death of Ratilal the income was to be enjoyed by his widow and the sons of Ratilal who were in existence at the time of the death of the survivor of Ramjibhai ahd Ratilal. There was a power of revocation given to Ramjibhai. Ramjibhai died on the 23rd of July, 1940. After his death Ratilal enjoyed the income of his property. The joint family continues to enjoy the same status and the assessee before us is this joint Hindu family and the question that arises is whether the income received by Ratilal out of this property can be considered to be the income of the joint family for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or disponer in relation to a settlement or disposition shall include any person by whom the settlement or disposition was made. Therefore the effect of this second proviso is that although a settlement might be made by two or three persons if there is a provision for retransfer directly or indirectly of the income or assets to any one of the settlors the first proviso is satisfied and it is not necessary that all the settlors making the transfer should obtain a benefit under the deed of transfer; it is sufficient if any one of them receives any benefit. In view of this position in law must consider what is the . true position under the deed of trust which was executed on the 27th of July, 1933. The first question that arises is at to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and to alienate its property it is entitled under the Hindu law to act through all its co-parceners who are entitled to alienate property belonging to the joint family. Therefore, in this case, there can be no doubt that the settlor or the transferor is the joint Hindu family and not merely the two members of that family. However, the difficulty still remains in the way of the Advocate-General who appears on behalf of the Commissioner, and the difficulty is this. Can it be said on a perusal of the provisions of this trust deed that there is a provision for retransfer directly or indirectly of the income or assets to the settlor? Now the Advocate-General contends that the settlement having been made by Ramjibhai and Ratilal there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lal would have no interest in this property by birth at all. Therefore, looking at the provisions of this trust deed as a whole it is clear that the intention of the settlors by executing this trust deed was not to benefit the joint family but only to benefit one or two members of the family not as members of the family but on their own behalf and in their individual capacity. Therefore, although it is true that there is a provision with regard to a retransfer of income to one of the persons executing the trust deed that provision is not in favour of the settlor in the same capacity in which he alienated the property but in his favour in an altogether different capacity. It is pointed out by the Advocate-General that if we were to put su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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