BISWARANJAN Vs. COMMISSIONER OF INCOME TAX CALCUTTA

JUDGEMENT

(1.) These appeals are brought, by certificate, from the judgment of the Calcutta High Court dated March 13, 1964, in Income- tax Reference No. 39 of 1960.

(2.) One Kedarnath Bysack, a Hindu governed by the Bengal school of Hindu law, died on July 10, 1887, leaving behind his widow, Kailashmoney Dasi, a son, Sarbaranjan Bysack, and his nephew, Dakhinaranjan Bysack. He left a will dated May 30, 1887, and a codicil whereby he bequeathed his entire estate to two deities, Sree Sree Iswar Balaram Jew and Radhakanta Jew subject to the payment of certain legacies, annuities and expenses. There was a provision in the will that, in the event of the bequest or any part thereof in favour of the deities being held by a competent court to be void, the estate will be inherited by his heirs, his son, Sarbaranjan Bysack, and his nephew, Dakhinaranjan Bysack. Probate of the will was duly granted on August 18, 1887. The nephew, Dakhinaranjan Bysack, died in 1895, after having married Purnashashi Dassi in the year 1893. In 1896, Purnashashi Dassi filed a suit, O. S. 363 of 1896, on the original side of the Calcutta High Court against the widow of the testator and her son, Sarbaranjan Bysack, asking for a proper constructions of the will and declaration of her rights and of the other parties to the suit. She also asked for an enquiry to be made as to what was the proper provision to be made out of the said estate for the due performance of sheba and worship of the deities, Sree Sree Iswar Balaram Jew and Radhakatna Jew, on the footing that the gift made to them by the testator in his will was not intended to operate and did not operate as an absolute gift but only as a provision for the due and proper performance of sheba and worship of the said deities. Purnashashi Dassi prayed that, after such provision was made, the rest of the property of the testator might be directed to be divided in equal proportions between herself and the other heirs of the testator. The High Court granted a preliminary decree in O. S. 363 of 1896 on July 1, 1897. It was declared that the gift of the estate by the testator in favour of the deities was invalid and it was ordered that an enquiry should be made as to what provision was necessary for the sheba and worship of the deities in the same way as it was carried on by the testator. The commissioner, who was appointed to make the enquiry under the preliminary decree, made his report on July 4, 1900, stating :

(3.) The report was accepted by the High Court and a final decree was passed on September 22, 1903. Excepting these four properties, the other properties of the testator were divided between Purnashashi Dassi and Sarbaranjan Bysack.