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TMI Blog1980 (3) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... ties were to be owned and enjoyed by them as joint family properties with all the rights incidental thereto. Prakasam was appointed as executor under the will. He had then three minor sons.The assessee, which is the HUF, filed the return through its karta, Prakasam, disclosing a net wealth of Rs. 3,37,830 for the assessment year 1971-72 the relevant valuation date being April, 13, 1971. Prakasam filed another return in his capacity as executor of the estate of his deceased father disclosing a net wealth of Rs. 3,64,325 for the assessment year in question. The WTO came to the conclusion that on the death of Swaminatha Mudaliar his estate devolved upon the HUF under the will and he made a single assessment on the HUF without making any separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been made and some of the executorial functions are yet to be performed by the executor, is erroneous, and even before the administration of the estate was completed, the executor can vest the properties in the legatees with mutual consent and if, after such assent, the executor continued in possession of the property bequeathed, he would cease to be au executor and become a trustee for the legatees concerned, and this question whether there was such an assent by the executor either expressly or impliedly has not been adverted to or considered by the Tribunal. In IRC v. Aubrey Smith [1930] 1 KB 713 ; 15 TC 661 (CA), the testator directed a sale of his properties, after payment of certain legacies and the distribution of the residu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra, AIR 1940 Patna 40, the executor executed a mortgage in his individual capacity as a legatee with respect to the properties bequeathed to him and applied the money to his own use. It was held that the executor can be taken to have assented to the legacy in his own favour. There is no invariable rule that an executor cannot shed his character as an executor and assume the character of a trustee under a will before all the debts are discharged and the legacies are paid. Merely because the debts have not been discharged and legacies paid, it cannot be stated that the executorial functions of the executor have not been completely performed. Thus, the existence of debts or liabilities of the deceased is no bar for an executor giving assent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be enjoyed by them as joint family properties with all the rights incidental thereto. Where a Hindu bequeathed his self-acquired properties under a will in favour of his son, the question arises whether such properties are the separate properties of the son or whether they are ancestral properties in the hands of the son as regards his male issues. This question came to be considered by the Supreme Court in Arunsachala Mudaliar v. Muruganatha Mudaliar [1954] SCR 243, and it was held that the question was primarily one of intention of the testator to be gathered from the terms of the will and if there are no clear words describing the kind of interest intended to be given the court would have to collect the intention from the language of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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