TMI Blog1966 (10) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... during his lifetime. The High Court was, therefore, right in holding that the estate belonged only to the two grandsons of the testator--Narayanan and Viswanathan--and that they were properly assessed to tax in respect of the income therefrom. Appeal dismissed. - - - - - Dated:- 27-10-1966 - Judge(s) : V. RAMASWAMY., J. C. SHAH., V. BHARGAVA JUDGMENT The judgment of the court was delivered by SHAH J.--Chockalingam Chettiar and his son, Annamalai, were members of a Hindu joint family. On March 28, 1939, the joint family status was severed. On February 2, 1943, Chockalingam executed a will devising the property which fell to his share, in favour of his two grandsons--Narayanan and Viswanathan-and of other grandsons that may be bor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court of Judicature at Madras the following question under section 66(1) of the Indian Income-tax Act : " Whether the assessment on Viswanathan and Narayanan on a half share of the income of the estate of S.N.A.S. Chockalingam Chettiar is valid on a proper construction of the will dated 2nd February, 1943 ? " The High Court recorded an affirmative answer. They observed : " We are clearly of opinion that though the testator made a bequest to his grand-children by Annamalai and that such a bequest was to a class of heirs, there being no provision in the will, express or implied, indicating a period of distribution later than the death of the testator and there being no deferring of possession beyond the death, the date of ascertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gacy being in favour of the testator's grandsons, such grandsons of the testator who will be in existence on the date till which possession is deferred will take the property. At the date of the testator's death there were only two grandsons alive. Two more were born to Meenakshi-testator's daughter-in-law after the death of the testator. The appellants contend that the property devolves upon the four grandsons of the testator, and the order of assessment levying tax from two of them only who were alive at the testator's death is not valid. But on the plain terms of the will, possession of the class to whom the legacy was given was not deferred until a time later than the death of the testator. The will provides that " after my lifetime,... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ughter-in-law, would give birth to a son during his lifetime, and it must be inferred that it was the intention of the testator that the estate should be taken over by Narayanan and Viswanathan and other male children that may be born after the testator's death to Meenakshi. But there is no ambiguity in the terms of the will. The will gives the estate to the grandsons who were in existence and the other male children who may be born after the date of the execution of the will. Legal possession of the legatees was not deferred, and it is not open to the court to speculate whether the testator could have contemplated the birth of any male children to Meenakshi during his lifetime. The High Court was, therefore, right in holding that the estat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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