ABDUL AZEEZ Vs. COMMISSIONER OF INCOME TAX

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:-

(3.) It cannot be disputed that if the donees be held to have got shares which be definite the provision of S.9(3) would become applicable. It is equally well settled, under the personal law that governed the grandmother and her grandchildren a gift of property capable of division to two or more persons without dividing is not valid. It follows that the donees should get or obtain possession of definite shares in order to become donees. The Counsel for the assessees has urged that under their personal law a female child gets half of what her male brother takes and the deed has given such estates to his clients. He has drawn our attention to Nisam-ud-din of Laboure in re, 11 ITR 443 where the view taken is that the heirs under Muhammedan Law get different shares in what they inherit. He has also relied on Vir Bhan, Bansi Lal v. Commissioner of Income Tax, 4 ITR 112 where it has been held that if the share be definite the persons obtaining them cannot be treated as associations. The Counsel for the assessee has, therefore, argued that by the use of the words Muhammedan Law in Para.3 of the settlement deed the intention of the donor is to make the shares of the grandsons double of what the granddaughters would get and thus each donee got a fixed share. The relevant translation of the aforesaid para reads as follows:-