Chakravartti, C.J. - (1.) This is a Reference under Section 66(1), Income-tax Act made at the instance of the Commissioner of Income-tax and involves a single question of law. The matter was argued before us at some considerable length.
(2.) The relevant facts are few in number. One H. M. Thaddeus, an inhabitant of Calcutta, appears to have got into trouble with his wife in regard to their married life and the lady sought the assistance of this Court by instituting a suit for judicial separation. That suit, which was Suit No. 20 of 1940, was ultimately disposed of on 28-2-1940 by consent. The terms of the consent decree, so far as they are material for the present purpose, were that an order for judicial separation was to be made in favour of the plaintiff wife and the defendant husband was to be directed to pay to his wife a sum of Rs. 800/- as her alimony "in the manner specified in the terms." The first of the terms of settlement referred to the payment of this alimony and was to the following effect: "Permanent alimony to be paid at the rate of Rs. 800/- per month, payments to be made on the 7th day of every month, the first of such payments to be made on the 7th day of March, 1941."
(3.) About three years later, on 20-12-1943, the husband executed a Deed of Charge whereby he made the payment of the alimony, payable by him under the consent decree, a charge on two house properties owned by him. The preamble of the deed recited that the husband had come to know that the wife was intending to make an application to the Court to compel him to secure the payment of the alimony by charging the same on his properties and that the husband, was anticipating the threatened move on the part of the wife by executing the deed so as to prevent the intended application and also avoid the liability as to costs which would necessarily be incurred. A desire to safeguard the wife against the future uncertainty as to recovering the alimony was stated to be an additional reason for executing the deed. The operative part of the document read as follows:- "Now these presents witness that in consideration of the premises the said husband both hereby charge all and singular the messuage, lands hereditaments and premises being his said preperties hereinafter described for the said alimony amounting to Rs. 800/- per month or Rs. 6,600/-per year and payable to his wife in terms of the said decree, for and during the remainder of her life and he also declares that his said properties and the rents, issues and incomes thereof shall remain charged with the due payment of the said alimony or such sum as may be ordered by Court from time to time in favour of his said wife for her life." The properties mentioned in the Schedule to the deed and charged thereby were premises No. 1 Lower Rawdon Street and Premises No. 10/1-A Radha Bazar Lane, both situated in the town of Calcutta.;