B.K.MEHTA, J. - (1.)THIS reference arises out of the assessment orders for assessment years 1962 -63, 1963 -64 and 1964 -65, passed by the Wealth -tax Officer, Group Circle II (1), Ahmedabad, assessing the assessee -respondent herein for the entire value of the assets held by the trustees under three discretionary trusts and created by the father of the assessee on the ground that he was the sole beneficiary at the valuation date of the aforesaid respective assessment years. The Wealth -tax Officer has passed the said orders under section 21(2) of the Wealth -tax Act for the said respective assessment years on February 16, 1963, July 25, 1964, and March 5, 1965, respectively, including Rs. 24,15,641, Rs. 19,64,352 and Rs. 19,25,655, being the valuation of the entire trust estate in the net wealth of the respondent -assessee. These orders, it is so claimed by the revenue, were made by the Wealth -tax Officer in the nature of protective assessment, though the assets of the three discretionary trusts were assessed to wealth -tax in the hands of the trustees as association of persons under section 21(4) of the said Act. The Appellate Assistant Commissioner, however, in appeals preferred by the respondent -assessee, was of the opinion that the respondent -assessee could be assessed only for the minimum amounts payable under the said three discretionary trusts to him for his maintenance, namely, Rs. 250, Rs. 150 and Rs. 250, respectively, per year and he, therefore, included the capitalised value thereof in the net wealth of the assessee. In appeal by the Wealth -tax Officer before the Appellate Tribunal, the Tribunal, having regard to the fact that the interest of the assessee in the assets held by the trustees on his behalf was indeterminate and unknown, held that only the capitalised value of the minimum amounts payable as aforesaid was liable to be included in his net wealth. The Tribunal, in that view of the matter, did not consider the grievance of the assessee that the Wealth -tax Officer was incompetent to assess the same assets twice. It is, therefore, at the instance of the Commissioner that the following question has been referred to us for our opinion :
'Whether, on the facts and in the circumstances of the case, the finding that it is only the capitalised value of the interest of the assessee that has to be included in the net wealth of the assessee is in law justified ?'
At the time of hearing of this reference, the following two contentions were urged by the learned advocate on behalf of the revenue :
1. Having regard to the fact that the assessee was the sole beneficiary out of the class of beneficiaries at the valuation date of the respective assessment years, his share is both definite and known in the corpus as well as income of the trust assets held by the trustees on his behalf and the value of the entire assets was liable to be included in his net wealth. 2. In any case, the assessee having contingent interest in the corpus of the trust fund, the Tribunal was in error in rejecting the contention of the revenue that the Wealth -tax Officer was competent to assess the entire assets in the hands of the assessee under section 21(2).

(2.)ON behalf of the respondent -assessee it was urged before us that on the true construction of the relevant clauses of the trust deeds which are in effect and substance discretionary trusts, the assessee had no interest other than that of minimum payments as aforesaid in the income and a fortiori in the corpus of the trust assets and the Tribunal was, therefore, justified in including merely the capitalised value of the said payment in the net wealth of the assessee.
The answer to the question which has been referred to us, therefore, depends on the interpretation of the three trust deeds with which we are concerned in this reference. One Shri Narottam Lalbhai who happened to be the father of the respondent -assessee executed three deeds of trust for the benefit of the assessee, his wife and his children and grand -children, one dated 19th March, 1955, in respect of Arvind Narottam Trust, second dated 9th April, 1955, in respect of Arvind Family Trust and the third dated 18th March, 1961, in respect of Arvind Kalyan Trust. All the three trust deeds are in identical terms except in respect of the minimum amounts payable to the beneficiaries out of the income of each year. The minimum annual payments to be made under the said trust deeds to the respondent -assessee by way of maintenance were Rs. 250, Rs. 150 and Rs. 250, respectively. By the said trust deeds, the assessee's father settled certain shares on the trust set out in clauses 7 and 8 of the deeds which run as follows :

'7. (a) Whatever income by way of interest or otherwise is received each year by the trustees from the trust fund should be first applied in meeting with the expenses of the management of the trust and the payment of taxes thereof. For a period of 18 years hereafter, the trustees may pay to Arvind or if Arvind gets married during the period to Arvind, his wife and children or to one or more of these persons, such portion of the net income remaining thereafter as the trustees deem fit. However, the trustees shall pay to Arvind and his wife at least Rs. 150 every year. After such distribution, if there remains any surplus from the income of any year, it shall be added to the corpus of the fund. If in any year the net income accruing to the fund is less than Rs. 300 the whole amount should be paid to Arvind and if Arvind gets married during the period to Arvind and his wife in equal shares. If Arvind expires during the period of 18 years hereafter or if Arvind gets married du ring the period and both Arvind and his wife expire, the whole of the net income of the trust fund should be added to the corpus for a period of 18 years hereafter. (b) Whatever may be the corpus and the accumulated balance remaining undistributed out of the income of each year, shall be paid (as capital) at the end of 18 years hereafter to Arvind, his wife and his children or survivor or such of them in such proportion as the trustees deem fir. If the trustees are not able to decide upon the persons to whom or the proportion in which the said corpus and accumulated balance of income is be distributed or it is not possible legally to give effect to the decision of trustees or it is illegal to do so, then the proportion in which the distribution will be made will be an equal share for each of the persons or survivors comprising of Arvind, his wife and his children. If none of the said persons are alive at the time of distribution then the corpus and the balance of income will be given over by the trustees on such conditions as they deem fit as donation to the Gujarat University or any other educational institution or an institution giving medical aid or attending to the health of public in general.

8. If the trustees so think fit the trustees are hereby authorised to distribute as capital even before the expiry of 18 years whatever property and income is at the particular time accumulated in the trust fund to Arvind, his wife and his children or survivor or such of them in such proportion as the trustees deem fit. If the trustees are not able to decide upon the persons to whom or the proportion in which the said corpus and accumulated balance of income is to be distributed or it is not possible legally to give effect to the decision of trustees or it is illegal to do so, then the proportion in which the distribution will be made will be an equal share for each of the persons or survivors comprising of Arvind, his wife and his children. If none of the said persons are alive, at the time of distribution then the distribution will be made to Niranjan, his wife and his children or survivors, all or such of them and in such proportion as the trustees deem fit. If none of the said persons are alive at the time of distribution, then the corpus and the balance of income will be given over by the trustees on such conditions as they deem fit as donation to the Gujarat University or any other educational institution or an institution giving medical aid or attending to the health of public in general. But if Arvind and his wife are the trustees at that time then they have no right to give vote in the above matter. But if the other trustees unanimously agree to allow them to vote then they can.'

(3.)IT is common ground that only the minimum payment as indicated in paragraph 7 of the respective trust deeds was to be made to the respondent -assessee, who was a bachelor at all the relevant times of these assessment years. It is also an admitted position that the trustees have complete discretion regarding the remaining income of the trust assets for purposes of accumulation and also in respect of distribution of corpus at the end of 30 years or at an earlier period as may be advanced by the trustees within their discretion as empowered under clause 8 of the said deeds.
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