Dipak Kumar Sen, J. - (1.) In this reference under Section 256(1) of the Income-tax Act, 1961, we are called upon to construe a deed of trust dated 7th August, 1950, at the instance of the Commissioner of Income-tax, West Bengal-Ill, Calcutta. The facts as found and admitted and as also appearing from the records of the reference may be briefly stated as follows: Brojendra Nath Kundu, the assessee, is the owner of a house, No. 10A, Chandni Chawk Street, Calcutta. The assessee married three times. His first wife died in 1930. His second wife is separated from him and is living apart and being maintained by the assessee at Rs. 25 per month. The third wife, viz., Umasashi Dassi, is living. The assessee has two issues by Umasashi, namely; Sambhu Nath Kundu and Bhola Math Kundu. The eldest son of the assessee is one Joydeb Kundu.
(2.) On the 7th August, 1950, the assessee executed a deed of trust. The said deed was rectified by another deed on the 11th February, 1960. The subject-matter of the said deed of trust is the premises No. 10A, Chandni Chawk Street. The assessee conveyed the said premises in trust to himself and his third wife, Umasashi Dassi, for the purposes as set out in the deed as follows: "(1) To the use of the said settlor and/or his wife, Sm. Umasashi Dassi, during the natural life of the settlor and of the said Umasashi Dassi upon trust to realise the rents, issues and profits and to pay thereout the municipal taxes and other outgoings and to make necessary repairs and improvements to the properties hereby granted and to spend moneys on that account and to pay the moneys that may be due for interest to the Calcutta Improvement Trust on the charge created by the settlor in favour of the 'CIT' for exemption in respect of portion of the messuages, lands hereditaments and premises mentioned in the schedule hereunder written and also during the lifetime of the said settlor and of the said Sm. Umasashi Dassi to pay as beneficiaries the sum of Rs. 50 each per month for their maintenance and a sum of Rs. 100 (Rupees one hundred) per month to the said trustees, Babu Brojendra Nath Kundu, as remuneration for his trouble, skill and Joss of time, in executing the trust. (2) Provided that the settlor shall not be accountable to anybody or to render any account whatsoever in respect of his dealing with proper ties hereby settled and/or to the income thereof but he is to see that the accounts are kept only of the receipts and expenses....... (4) Provided also further that the settlor shall have no power to cancel or revoke this trust by a separate deed or otherwise and to hold the property as his former free estate or vary all or any of the uses herein mentioned concerning the property hereby settled. (5) Provided further that the settlor as one of the trustees shall have full power to lease out, mortgage, sell or otherwise encumber the properties fhereby granted or any part or parts thereof but the other trustees shall have no such powers except the power (which the other trustee or trustees will have) after the death of the said settlor to grant leases for not more than five years. In the event of the said Sm. Umasashi Dassi predeceasing the settlor he shall become the sole trustee. (6) Provided also further that in the event of the settlor predeceasing the said Umasashi Dassi without making any appointment or in any way altering this trust, his sons, Sambhu Nath Kundu (now aged 12 years 3 months) and Bhola Nath Kundu (now aged 6 years 6 months) or any one of them who would attain majority and be alive at the time of his death or both (if both of them had attained majority) would, become the trustee or trustees in his place and stead jointly with the said Sm. Umasashi Dassi but without any power to sell or mortgage or otherwise encumber the property. Likewise, any of the said two sons (of the settlor) who may be minor and have not attained majority at the time of the settlor's death would also become the trustee (jointly) with his mother, Sm. Umasashi Dassi, and/or his brother immediately upon his attaining majority. Be it expressly declared that the eldest son of the settlor, namely, Shri Joydeb Kundu, shall under no circumstances have any right, title or interest in this trust estate..... (7) Provided also further that during the minority of any of the said two sons of the settlor the trust herein or such of them as may survive the other will upon the death of any of the trustees hereby appointed shall out of the income be liable to defray the maintenance and education expenses of such minor son or sons as to pay Rs. 100 (Rupees one hundred) monthly and every month to the son or sons who has or have attained majority likewise after the death of the settlor, the trustee or trustees shall be liable to defray the maintenance of Rs. 50 (Rupees fifty) per month to the said Sm. Umasashi Dassi till the period of distribution mentioned in clauses 8 and 9 hereof. The trustees shall further defray the marriage expenses of the settlor's unmarried daughter, namely, Kumari Annapurna Coondoo. (8) Provided also further that after and upon the death of the settlor and of his wife, the said Sm. Umasashi Dassi, the trustee or trustees shall after defraying thereout: (1) the outgoings such as, municipal taxes, costs of repairs, interest payable to the Calcutta Improvement Trust, etc., and other liabilities, if any ; (2) the expenses and/or payments under clause 7 hereof make improvements to the properties hereby settled and shall hold the residue, if any, of the income for the benefit of the said two sons (Sambhu Nath and Bhola Nath) of the settlor till his said son, Sambhu Nath, attains the age of 18 years. Provided also further that upon the said son, Sambhu Nath, attaining the age of 18 years, the then trustees shall distribute the surplus mentioned in the last mentioned clause to the said two sons (Sambhu Nath and Bhola Nath) in equal shares, and divide and partition the lots A, B and C delineated in the map or plan hereto annexed in the manner following, that is to say, lot A to Shri Sambhu Nath Coondoo, lot B to Shri Bholanath Coondoo, and lot C to Sm. Umasashi Dassi (to be held and enjoyed by her during her lifetime). In the event of her death (which let God forbid) or of any of the said two sons (Sambhu Nath and Bhola Nath) such son's sons or son (if only one son) shall be entitled to get the share of such deceased son. In the event of the said Sm. Umasashi Dassi having had died in the meantime and before such distribution, the lot C shall be partitioned and divided between the settlor's said two sons and held by them in equal shares absolutely provided there is no other issue of the settlor in the meantime. If any other issue is begot by the settlor in the meantime such issue or issues of the settlor through the said Sm. Umasashi Dassi shall get the lot C and the same would be made over and transferred to them by the trustees."
(3.) In 1950, at the time when the said deed was executed, Sambhu Nath and Bhola Nath, the two sons of the assessee were minors. Sambhu Nath attained majority in or about 1958.;