COMMISSIONER OF INCOME TAX Vs. NAVNITLAL SAKARLAL

JUDGEMENT

(1.) IN this reference made at the instance of the Revenue, the following question has been referred to us for our opinion:

(2.) WE are concerned in this the case with asst. yrs. 1963 64 to 1967 68, the relevant accounting years being the previous samvat years. The assessee is an individual. The assessee's grandfather, Balabhai Damodardas, had made a will on October 6, 1956, leaving one half of his estate to the assessee and the other half to the assessee's brother, Nandkishore. Balabhai Damodardas died on December 31, 1957. Balabhai was possessed of considerable movable properties acquired by him personally and held by him in his individual capacity. Moreover, he had one half share in the coparcenary properties and the remaining half share belonged to Sakarlal. Under the will of Balabhai it was provided that after discharging all debts, liabilities and obligations and after meeting the expenses of illness, obsequial ceremonies and disbursing charities out of his self acquired properties, the said properties as also his right, title and interest in the coparcenary properties would on his death devolve upon the two grandsons of Balabhai, namely, the assessee and his brother, Nandkishore, and in accordance with the terms of the will the deceased and his brother were to become entitled to use and enjoy the same. No person was named in the will as the administrator or executor of the will and according to the provisions of the will the legatees themselves were to take possession of the properties of the testator on his death.

(3.) IN respect of the wealth tax assessments for the asst. yrs. 1963 64 and 1964 65, the dispute came ultimately on a reference to the High Court and the decision of the High Court is in Navnitlal Sakarlal vs. CWT (1977) 106 ITR 512. In that case, a Division Bench of this High Court consisting of one of us (Divan C.J.) and P. D. Desai J., held that under the will of Balabhai, on the death of the testator, the legatees were to get an interest in his separate properties as well as in his share in the coparcenary properties and they were to become entitled to use and enjoy the same after making provision for discharging the debts and liabilities and payment of certain expenses out of the self acquired properties of the testator. According to the principles of Hindu law and the provisions of S. 6 of the Hindu Succession Act, 1956, the assessee and his brother became entitled under the will to inherit one half share of the deceased in the coparcenary properties. From the point of the death of Balabhai, the HUF, and the heirs of the deceased coparcener, Balabhai, would hold the coparcenary properties as tenants in common, each having defined shares in the properties which belonged to the HUF. The heirs of Balabhai would also take the share of the deceased coparcener, Balabhai, in the properties of the HUF as tenants in common. The result was that each of the heirs on the one hand and the HUF on the other would have, until partition by metes and bounds took place, an undivided specific share in each and every one of the properties of the coparcenary.