B.K.MEHTA, J. - (1.) SINCE these two references relating to asst. yrs. 1963 64 and 1964 65 as well as asst. year 1966 67, respectively, raise an identical question arising under the same facts and circumstances pertaining to the assessment of the same assessee, who is the respondent before us, we intend to dispose of these two references by this common judgment.
(2.) THE facts and circumstances leading to these two references shortly stated are as under : The assessee is assessed in the status of an individual. He claimed before the ITO that during these three years of assessment under reference no part of the income from the two trusts created by him under the indentures of trust of July 11, 1955, as amended by an amending deed of trust of February 8, 1962, and another indenture of trust of the same date could be added under the provisions of S. 64(v) of the IT Act as was applicable at the relevant time. Under the aforesaid first indenture of trust of July 11, 1955, the assessee settled equity shares of three limited companies of the face value of Rs. 1,25,000 besides cash amount of Rs. 30,000. The trustees were enjoined to pay initially a sum of Rs. 50 per month to the assessee's wife for maintenance, support and education of her daughter, Kumari Shashikala, till her marriage, and the balance of the income was to be utilised by paying to the wife of the assessee for the maintenance, support and education of their three minor sons, viz., Vijay, Rohit and Ashok. On the first son, Vijay, attaining majority, the trustees were enjoined to divide the corpus in three equal shares after retaining sufficient assets so as to yield an income of Rs. 50 per month which was to be utilised for the benefit of the aforesaid daughter, Shashikala. Vijay was to be handed over his 1/3rd share in the balance amount of the corpus. The income from the remaining two thirds share of the corpus was to be paid to the wife of the assessee for maintenance and education of the two sons, Rohit and Ashok, and on their attaining majority the respective 1/3rd share of each of the said sons was to be handed over to him. The income of this trust was being added in the hands of the settlor till asst. year 1961 62. It appears that on February 8, 1962, the settlor executed another indenture which was in the nature of a supplementary deed to the original trust deed whereby the assessee sought to amend some of the provisions of the parent indenture. According to cl. 2(b) of the supplementary indenture, the net income of the trust, after paying a sum of Rs. 50 per month to the wife of the assessee for the benefit of the aforesaid daughter, Shashikala, was to be accumulated and added to the trust fund, and on the eldest son, Vijay, attaining majority, the corpus of the trust was to be divided into three equal parts, one of which was to be handed over to the said Vijay. Similarly, on Rohit and Ashok attaining majority, their respective share in the corpus was to be paid over to them subject to the condition that out of the corpus a sum of Rs. 5,000 was payable to the aforesaid daughter, Shashikala, towards her marriage expenses. In the event of any of the three sons dying before attaining majority, his respective share was to be divided equally between the surviving brothers and was to be paid to each one of them on attaining majority. Similarly, on February 8, 1962, the assessee executed another indenture deed settling some more shares valued at Rs. 1,43,575 besides cash amount of Rs. 20,000 and two immovable properties situate within the City of Jamnagar. Out of these properties, one was ancestral property situate in the main bazar of the City of Jamnagar and another property described as self acquired property was known as "Ascharya Kunj". It is claimed by the assessee that the said self acquired property was thrown by him into the common hotch potch so as to make it available for dividing the same amongst the sons. It was further directed by the settlor that the said property known as "Ascharya Kunj" was to be divided between Rohit and Ashok in equal shares on the condition that they relinquish their rights in the ancestral property situate in the bazar of Jamnagar City, The latter property was to be given absolutely to the son, Vijay, on his attaining majority or after the death of the settlor's wife, who was entitled to enjoy the income from the said property during her lifetime, whichever event occurs later. The income from the property "Ascharya Kunj" as well as from dividends of the settled shares was directed to be accumulated and added to the corpus till each of the sons attained majority. As soon as any son attained majority his 1/3rd share in the accumulated income was to be paid over to him and similarly the two other shares in the accumulated income were to be paid to each of the sons, Rohit and Ashok, as and when they attained majority. The cash amount of Rs. 20,000 was to be paid to the two major married daughters of the assessee at specified intervals. This is broadly the scheme of the two indentures of trust.
(3.) THE Tribunal has, in the statement of the case making the reference to this Court, summed up the cumulative effect of these various clauses contained in the two indentures of trust, including the supplementary deed of trust by which the first indenture was amended, in the following terms : "........ In short, therefore, as a result of the two instruments dt. 8 2 1962 the income of the two trusts was to be accumulated in the hands of the trustees to form part of the trust corpus, and that corpus was to be divided equally among the three sons as and when they attained majority." ;