9911796707
TMI Blog1997 (11) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... would not have any share over those assets and that he was giving certain bequests to his daughters-in-law and granddaughter. After the execution of the will, Kumaraswamy Reddiar died on 10th June, 1968. Subsequently the will was probated. The respondent claimed that by virtue of the declaration contained in the will, properties belonged to HUF and therefore, one-third of the properties alone would pass on the death. However, the above claim was rejected by the Asstt. CED. According to him, till the death of Kumaraswamy Reddiar, he was treating his properties as his individual properties. On appeal the ACED, placing reliance on the decision of the Madras High Court in CIT vs. A.R. Sahasranamam (1974) 97 ITR 511 (Mad) : TC 37R.493 accepted the claim of the accountable person. He held that a declaration that the individual property belonged to HUF and impressed the property with the HUF character could be made in a will. As against this order both the Department and the accountable person filed appeals before the Tribunal. After detailed consideration, both the appeals were dismissed by the Tribunal. In the appeal filed by the Department the Tribunal confirmed the order of the ACED ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no male issue till date but I have already given and passed entries in Alleppey books relating to the year 1142 M.E. a sum of Rs. 50,000 to my daughter-in -law Dhanalakshmi wife of Muthukrishnan my second son and Rs. 25,000 each to the two daughters of my eldest son K. Radhakrishnan shall be wholly enjoyed by them. As the granddaughters are minors their father K. Radhakrishnan shall be the guardian till they attain majority. I hereby reserve my absolute right to alter or cancel the provisions of this will. My sons shall continue to perform without default those acts of charity which I am performing. Thus, I have executed this will out of my free will." 4. There was some controversy with regard to the correctness of English translation of the following sentence in the will written in Tamil. "Myself and my sons K. Radhakrishnan and K. Muthukrishnan have constituted a joint HUF." The case of the accountable person is that the above translation does not convey the true meaning of the corresponding sentence in the original will in Tamil. In this situation the disputed sentence in Tamil was got verified by this Court as well as by the standing counsel for the Department and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be gathered by reading the whole recitals contained in the will. Sec. 82 of the Indian Succession Act provides that the meaning of any clause in a will is to be collected from the entire instrument and all its parts are to be construed with reference to each other. Lord Davey in N.E. Railway vs. Hastings 1900 AC 260 said thus : "The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible." While reading the document as a whole, the Court just supply efficacy to all the recitals in entirety and in fullest extent. It cannot ignore or efface one clause to preserve the other. Such a pleading really contravenes the principles of construction. "There are two modes of reading an instrument; where the one destroys and the other preserves, it is the rule of law, and of equity, following the law in this respect (for it is a rule of common sense, which I trust is common to both sides of Westminster Hall), that you should rather le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After having so declared, the deceased further stated that his daughters who were already married and who were not members of HUF will have no further rights therein. This, of course, is in consonance with law. We need not go further on this question inasmuch as the Tribunal has construed the recitals contained in the will within the legal framework. What we are persuaded to say is that a reasonable man reading the recitals contained in the will would have definitely come to the same conclusion as arrived at by the Tribunal. 9. Senior standing counsel for the Revenue, however, advanced an argument that in order to blend the self-acquired property of the deceased with that of the HUF there must be HUF properties in existence. He pointed out that when the HUF have no property there is no question of blending individual property with that of the coparcener's property. In support of this proposition, learned counsel relief on the decision of the Supreme Court in Mallesappa Bandeppa Desai vs. Desai Mallappa alias Mallesappa Anr. AIR 1961 SC 1268. Particular emphasis is made on the following sentence contained in paragraph 11 of the above decision. "A mere intention to benefit th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons that live together, unless they are a number of ascetics owning no properties at all in the world, that there is no property in common of any sort or kind. Nor is there anything in Hindu law which says that possession of property is a necessary requisite for the constitution of a joint family." The Privy Council in Shadi Lal vs. Lal Bahadur AIR 1933 PC 85 observed : "There is no presumption that a family, because it is joint, possesses joint property,..." The Karnataka High Court in T. Ramdas M. Pai vs. CIT (1978) 115 ITR 815 (Ker) : TC 37R.166 observed : "The second reason given by the Tribunal that in order to impress the self - acquired property of a coparcener with the character of joint family property by throwing it voluntarily into the common stock of the family, there must be in existence some joint family property belonging to the joint family, is also clearly untenable. The law is also clear that a joint family need not own or possess any joint family property." The law as stands firmly settled we do not attach any worthiness to the contention urged by the Revenue in this behalf. 11. In view of the discussion hereinabove, we hold that the property wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
