A NARAYANAN Vs. COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) CHOCKALINGAM Chettiar, a Hindu of the Nattukottat Chettiar community and his son, Annamalai, effected a partition of their family properties on the 28th March 1939. Chockalingam executed a Will on 2nd February 1945 By which he made bequests of the properties got by him under the partition. On the date of the will, he had two grand-sons by Annamalai, Narayanan and Viswanathan. Narayanan was born on 29th May 1939, and Viswanathan was born on 17th September 1941. Annamalai's wife was one Meenakshi Achi. Chockalingam died on 7th February 1943. After the death of Chockalingam, two sons were born to Annamalai. They are Chockalingam born on 11th August 1946 and Ramaswami born on 23rd March 1948.

(2.) THE income from the estate of Chockalingam came in for assessment under the indian Income-tax Act for the year 1951-52. The assessment was made by the income-tax Officer on the footing that Narayanan and Viswanatham the two grand-sons of Chockalinga who alone were in existence on the date of his death were each entitled to a moiety of the estate. Annamalai was in possession of the estate as executor under the will of the late Chockalinga. He raised the contention that his subsequent born sons, Chockalingam and Ramaswami, were also entitled to a share in the estate, having regard to the terms of the will and the statutory provisions of the Indian Succession Act. This contention was, however, not accepted by the Assessing officer. The assessments for the subsequent years 1952-53, 1953-54 and 1956-57 were also made treating Narayanan and viswanathan, the first two sons of Annamalai as being entitled to the estate as between themselves to the exclusion of their after-born brothers. The assessee's appeal to the Appellate Assistant Commissioner of income-tax against the order of the Income-tax Officer failed and a further appeal to the Income-tax Appellate tribunal, Madras also proved futile. On an application made by the assessee under section 66 (1) of the Indian Income-tax Act, the Tribunal has referred the following question to this court:

(3.) THE bequest by Chockalinga is certainly in favour of 8 class of heirs namely, his grand-children born of his divided son Annamalai. Where there is a bequest to a class under the will, the essental tiling to be determined first, is the point of time when the class has to be ascertained. The normal rule is that the date of death of the testator crystallises the class of legatees and those who come within the class and are capable of taking on that date obtain the benefit; the subsequent expansion of the class cannot diminish that benefit. But if on a proper construction of the will the ascertainment of the class is deferred to a later date, namely a date subsequent to the date of the death, those who become members of the class within the extended period are admitted to the benefits of the bequest. Section 111 of the Indian Succession Act, which applies to Hindu wills, provides that the date of ascertainment of the class or the period of distribution, as it may be called, shall be the date of the testator's death. The section reads as follows :