Decided on May 31,1966



Somnath Iyer, J. - (1.)THE source of this reference under section 66(1) of the Income-tax Act at the instance of the Commissioner of Income-tax is an assessment made by the Income-tax Officer with respect to the assessment years 1961-62 and 1962-63.
(2.)THE assessment was made in the following circumstances :
THEre was one Gopala Shetty, who was a member of an Aliyasanthana family, residing in Udipi, and he died on December 30, 1958. His wife and his seven children survived him. He made a will on December 15, 1958, and we are, in this reference, concerned with the correctness of the interpretation placed on the provisions of that will by the Income-tax Appellate Tribunal.

It was contended before the Income-tax Officer that the properties of Gopala Shetty were bequeathed under the will to the family consisting of his wife, Rama Bai, and his seven children, and that the assessment should be made on that basis. But the Income-tax Officer overruled that contention and made the assessment on the interpretation that the bequest under the will was to the wife and not to the family. In this view taken by the Income-tax Officer, the Appellate Assistant Commissioner concurred, but in the further appeal presented to the Appellate Tribunal, the assessee succeeded in the contention that the bequest was to the family and to the wife.

So the Commissioner has made a reference under section 66(1) and the two questions referred to us for our decision read :

"(1) Whether, on the facts and in the circumstances of the case, the properties comprised in the will of Gopala Shetty, dated December 15, 1958, devolved on a Hindu undivided family consisting of Mrs. Rama Bai and her children ?

(2) Whether, on the facts and in the circumstances of the case, the assessments for 1960-61 and 1961-62 should have been made on Mrs. Rama Bai as an individual in respect of the income from properties comprised under the will of Gopala Shetty dated December 15, 1958 ?"

(3.)THE answer to the first question depends upon our interpretation of the provisions in the will. Two competing translations were produced before Income-tax authorities of the relevant provisions of the will, and we are of the opinion that there is no substantial difference between the one translation and the other.
We have read the will and we find the following to be its outstanding features. In the preamble to the will, the testator stated that he made the will in favour of his wife. He next stated that he had bequeathed all his movable and immovable properties out of his own free will and volition to his very dear wife, Rama Bai. He next proceeded to state that Rama Bai should take possession of all his movable and immovable properties on the strength of his will and collect all the amounts due to him and discharge the debts payable by him. The will contains a further direction that the business carried on by the testator should continue to be conducted by his wife and that she should educate the children, maintain the family, and apply the property of the estate in her own unfettered discretion for the well-being and prosperity of the members of the family.

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