- (1.) Chockalingam Chettiar and his son Annamalai were members of a Hindu joint family. On March 28, l939 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 born of his son Annamalai. The relevant provisions of the will were these: "After my life time, the minor sons of my divided son the aforesaid Annamalai Chettiar, viz., Narayanan and Viswanathan and the male children that may be born "hereafter to the aforesaid Annamalai Chettiar shall take and enjoy in equal shares and with absolute rights all assets and liabilities in respect of immovable and movable properties * * I hereby appoint my divided son S. N. A. S. Annamalai Chettiar, * * * and his wife Meenakshi Achi, * * as executirs. Therefore they shall after my litetime manage and augment all my immovable and movable properties and firms, which are mentioned above, in their capacity as guardians and executors of the aforesaid minors, and when the aforesaid minors attain majority deliver the same to them". After the death of Chockalingam on February 7, 1943, Meenakshi gave birth to two sons: Chockalingam on August 11, 1946 and Ramaswami on March 23, l948.
(2.) In the assessment year 1951-52 the Income-tax Officer assessed the income of the property devised under the will of Chockalingam Chettiar on the footing that Narayanan and Viswanathan who were in existence at the time of his death were each entitled to a moiety of the estate. Similar orders of assessment were made for the years 1952-53, 1953-54 and 1956-57. The Appellate Assistant Commissioner confirmed the orders of the Income-tax Officer, and appeals to the Income-tax Tribunal failed.
(3.) The Tribunal referred to the High Court of Judicature at Madras, the following question under S. 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 of period of "distribution later than the death of the testator and there being no deferring of possession beyond the death, the date of ascertainment of the class must in view of S. 111 of the Indian Succession Act be taken to be the date when the testator died." With special leave, Narayanan and Viswanathan have appealed to this Court.;