9911796707
TMI Blog1982 (5) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... la Acharaj Ram owned considerable selfacquired properties. He executed a will on October 28, 1963, in these words : " THIS Is THE LAST WILL AND TESTAMENT OF me, Acharaj Ram, son of L. Saligram, caste Swamy, resident of 11/9, Pusa Road, New Delhi. WHEREAS my family consists of:-- Smt. Krishna-daughter of L. Chan Lal (my wife). Shri Shambooran-major son. Shri Vishwanath-major son. Smt. Malika, wife of L. Banarsilal. Smt. Tara Mohini, wife of L. Bhag Chand. Smt. Shanti, wife of L. Prithviraj. (Sd.) Acharaj Ram Smt. Kanta, wife of L. Jagpal. WHEREAS I am possessed of the following immovable and movable property: House No. 11/9, Pusa Road, New Delhi. Four shops with balakhana situate in Gandhi Cloth Market (Katra Alladiya) Chandni Chowk, Delhi. Share in firm Achrajram, Shambooran, Gandhi Cloth Market, Chandni Chowk, Delhi. Share in firm Achrajram & Sons Afsal Market, Kabul. Insurance policies worth abo (Sd.) Shivsaran Some shares and other household effects and 28-10-63 other such like movables. WHEREAS I am the owner of the above property and shall remain thereof till my death. 1. I appoints my sons Shri Shambooran and Vishwanath as the executors and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed one-half share in the property of Lala Acharaj Ram, the other half being received by Shri Vishwanath. The assessee claimed that he had received the property by virtue of the said will and, as such, the property is of the HUF consisting of the assessee and his minor son. The ITO did not accept the claim of the assessee and assessed half share in those properties as the assessee's income in his individual hands. On appeal, the AAC confirmed the order of the ITO. The assessee came in appeal before the Income-tax Appellate Tribunal. The question of law before the Tribunal depended upon the construction of the said will dated October 28, 1963, as to whether these properties belonged to the assessee in his individual capacity or whether he held them as karta of the joint Hindu family consisting of himself, his wife and his son. The Tribunal, after interpreting various terms of the will and after considering various cases cited, came to the conclusion that the properties in question were taken by the assessee in his capacity as karta of the joint Hindu family consisting of himself, his wife and son. The Tribunal directed that the income from those properties has to be excluded from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f disposition over his self-acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family if there are express provisions to that effect either in the deed of gift or a will no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would I have to collect the intention: of the donor from the, language of the document taken along with the surrounding circumstances in accordance with the well-known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its mere form. The material question which the court would have to decide in such case is, whether taking the document and all the relevant facts into consideration, it could be said that I the donor intended to confer & bounty upon his son exclusively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty, movable and immovable whatsoever and wheresoever, to be shared equally by his two sons, the assessee and his brother for the benefit of their families. According to, the counsel, the language of cl. 7 of the will is the I unequivocal expression of the desire of the testator to benefit the families of the two sons. Firstly, the words " whatsoever and wheresoever in cl.7 embrace the future property of the testator and such a is in consonance with the scheme of partition Secondary, the words " shared equally is the change of the language from the earlier part of the will and it partitions the property between the two sons. This is merely stated to be rejected. The words used do not explicitly indicate that it is a devise to partition the property for the benefit of the two branches of the families of the two sons. The terms of the document are not clear in favour of the assessee's case. The terms do not in clear words describe the kind of interest the two sons are to take. The counsel then points out the surrounding circumstances. The first is the lack of the expression that the testator intended to confer a bounty upon his son exclusively. In our opinion, there is no presump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, it cannot be said that the testator intended that the bequest was an integral part of a scheme of partition and what was given to the sons was really the share of the property which would normally be allotted to him or them and in his or their branch of the family on partition. The testator asserts his absolute right to dispose of the properties. The testator does not treat his self-acquired properties as ancestral properties and then proceed to allot to his sons and their families as in partition. In the will, the testator is conscious of the fact that he is possessed of the properties detailed therein and shall remain their owner till his death. Then, the testator mentions his family as consisting of his wife, the two sons and four daughters. There is an absence of the mention of the grandson or grandsons as forming part of the family headed respectively by the two sons. The testator then considered it advisable to make a will for the disposal of the property after his death. The disposal suggests the settlement of the self-acquired properties. The testator then appoints his sons as executors and trustees of the will. The appointment of the executors is to administer the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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