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TMI Blog1948 (3) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ve separate from them or either of them then and in such a case the trustees should pay ₹ 9,000 per year if she shall live separate from either of them and the sum of ₹ 18,000 if she shall live separate from both of them, and such sums of ₹ 9,000 or ₹ 18,000 as the case may be shall be deducted by the trustees from and out of the income or incomes of the said assessees, from whom Princess Kamaladevi may live separate. Princess Kamaladevi began to live separately from both the assessees from 1st April, 1941. On 5th November, 1942, both the assessee executed two separate indentures by which they both agreed to pay a sum of ₹ 15,000 each to their mother and each of the assessees by their respective indentures gave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se there can be no doubt, looking to the two deeds executed by the assessees, that the charge created by them is a charge which Princess Kamaladevi can enforce in a Court of law. It is perfectly true that for the agreement to pay the sum of ₹ 6,000 there is no consideration, but looking to the relationship between the assessees and the lady who has benefited under these indentures there can be no doubt that this amount was agreed to be paid for natural love and affection and Section 25(1) of the Indian Contract Act makes it clear that an agreement without consideration is void unless it is in writing and registered and is made on account of love and natural affection between parties standing in near relation to each other. This agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to a charge which is a valid and legal charge which can be enforced in a Court of law under which the assessee is bound to pay a certain amount recurring annually, and if we apply that test to the facts of the present case, there can be no doubt that the assessees are under a legal obligation to pay to their mother Princess Kamaladevi a sum of ₹ 6,000 each every year, failing which it would be open to her to enforce the charge on their respective properties. Reliance was placed on the decision of the Privy Council in Bejoy Singh Dudhuria v. Commissioner of Income-tax, Calcutta. That decision was given before the Act was amended in 1939 and the present provision was introduced with regard to certain burdens on the property. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permissible under the statute. The Advocate-General has also relied on the decision of Hira Lal, In re. In that case widows were granted maintenance allowances under an award in lieu of their share in the family property and the payment of allowances was made a charge on the property of the assessee and his brothers. The Court held that the payments made by the assessee in discharge in his share of the liability to the windows could not be taxed as income but must be excluded from his assessment as the payments were obligatory and subject to an overriding charge. The learned Advocate-General relied on a passage in the judgment of the Court where they described the ratio decidendi of the cases of this character to be that, if the payment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted by adequate consideration, undoubtedly the assessee would be entitled to the allowances under sub-section (4). If so, why is natural love and affection not an equally good consideration ? Law looks upon it as a good consideration, and if in this case it can be supported by that consideration, the payment of ₹ 6,000 stands on the same footing as if there was pecuniary consideration for the payment of this amount by the assessees. We, therefore, do not agree with the Tribunal when they take the view that the payment of ₹ 6,000 is not a permissible allowance, and we would, therefore, answer question submitted to us in the affirmative. The Commissioner must pay the costs of this reference. Reference answered according ..... X X X X Extracts X X X X X X X X Extracts X X X X
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