ABDUL AZEES Vs. CIT KERALA AND COIMBATORE

JUDGEMENT

(1.) THE assessees before us are the seven minor children of one Haji Essa Haji Abdul Sathar Sait. THEir father is the second son of a mamon lady called Assi Bai, who had by a settlement deed of 1945 had conveyed some of her properties to the seven as well as to the other children to her son haji Essa Sait. She had also settled other properties described in schedule A to the deed to the children of her other son Haji Essak; but he has only one daughter. Similarly properties mentioned in schedule C to the deed had been given to the issue of her yet another son Haji Hassan; but he also has only a daughter. In this reference we are not concerned with properties covered by A and C schedules, but only with what had been settled on the seven minor children of Haji Essa. All the beneficiaries have been by the deed declared entitled to the properties according to the Mohamedan Law and as the children belonging to Haji Eassas branch are seven, a question has arisen whether their income from the properties should be assessed like those of an association of person.

(2.) THE Income Tax Officer had held that the shares of the grandchildren are not determined and therefore they could not take advantage of s. 9 (3) of the Income Tax Act, which reads as follows:- Where properties owned by two or more persons and their respective shares are definite and ascertainable, such persons shall not in respect of such property be assessed as association of persons but the share of each such person in the income from the property as computed in accordance with this section shall be included in his total income. THE appellate authority had overruled the objections of the assessees to assessment. THE Tribunal has also found the shares of the persons in the properties not to be ascertainable, and therefore dismissed this appeal. THEreafter the following question was asked to be and referred to this court: Whether as per the provisions of the deed of settlement no. 355/1121 the shares of the minors in the income from house properties, are definite and ascertainable as contemplated under S. 9 [3] of the Indian Income tax Act?.

(3.) THE Counsel for the Department has referred to the word equal in the translation of the settlement deed and has argued that because of the direction the share of a granddaughter would not be half of the grandson. THE word equal is not found in the original, and therefore no argument can be built on it. It is clear that the donor did not intend her grand children to get undefined shares in the properties and the arguments of the assessees Counsel should be accepted. We think that the case is one to which S. 9 (3) of the Indian Income Tax Act applies. Accordingly the question referred to us is answered in the affirmative. Let the aforesaid answer be sent to the Department. THE assessees however will not be entitled to any costs as the mistake has arisen due to the incorrect translation furnished on their behalf.