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TMI Blog1992 (3) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... m, Coimbatore) to my wife, subject to the condition that she shall have only a life interest in them with no power to encumber or mortgage in any manner whatsoever. On her death or on her remarriage all the properties mentioned herein shall revert absolutely to my daughter. I leave and bequeath all the securities, shares, and money in the Bank or elsewhere to my daughter. I have two businesses, 1. Colombo Saree Works, 180, Big Bazaar Street, Coimbatore, and 2. Colombo Saree Works, Broadway, Ernakulam, Kerala State. All the machines, furniture, electrical installations, stock in trade and other movable properties with assets and liabilities therein of the first business I bequeath to my daughter and second to my wife. Regarding my house prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer was also impelled by the consideration that in the assessment for the assessment year 1982-83, the asscssee had agreed to the income from the Quilon property being determined at Rs. 10,000. 5. Predictably the assessee took up the matter in appeal before the CIT(A), urging the following points : (i) The assessee did not get any absolute legal ownership of the property. (ii) According to the will,the income or sale proceeds of the property was to be utilised for education and marriage of the four daughters of the assessee. Thus the will had legally created an 'irrevocable lien or charge' on the property. (iii) By apportioning the sale consideration of the property amongst her four daughters, the assessee had faithfully carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Quilon property should go to the assessee absolutely. This means that the assessee was the owner of the property. Secondly, this is a case of mere application of income. Thirdly, section 88 of the Indian Succession Act is not at all relevant to the issue before us. 8. On her part, Smt. Asha Vijayaraghavan, the learned counsel for the assessee, strongly, supported the impugned order of the CIT(A). 9.We have looked into the facts of the case.We have considered the rival submissions. 10. We have already set out the operative portions of the will. Read as a whole, the said portions make it clear that the testator's intention was to make different types of bequests to different persons. Thus Mrs. Carmel Pereira, the testator's wife, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , all that the assessee before us gets under the said terms of the will, is the shell of the property,and not its substance which goes to her four daughters. 15. True, under the terms of the will, the balance of the income or sale proceeds, if any, of the property can be taken by the assessee. But having regard to the significant fact that all the four children of the assessee are girls, the possibility of there being any residue left is remote indeed. We, therefore, hold that nothing turns on the aforesaid term of the will. 16. One of the points urged before the CIT(A) on behalf of the assessee, it may be recalled, was that the provisions of section 88 of the Indian Succession Act would apply to this case. And this contention found fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e be highlighted that in the aforesaid case of Hemangiri Dasi, it was also held that even though the section says " produce of a fund ", it is clear that it has application to produce or rent and profits of immovable property. In other words, the term 'fund' is used in its generic economic sense in contra-distinction to the term 'flow' which signifies the income flowing from the fund. 18. In the case before us, the relevant terms of the will make it clear that not only the income but also the sale proceeds of the Quilon property shall be utilised for the education and marriage of the testator's grandchildren. There is no stipulation as to the duration of the enjoyment of the income/sale proceeds by the testator's grandchildren. Thus we ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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