9911796707
TMI Blog1981 (1) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... , daughter and other persons was also made. The Will is dt. 18th Feb., 1927 and was probated on 16th April, 1929. Shri Chunilal Ahir died sometime in 1927. The ITO held that the properties received by the assessee from his father by virtue of his Will should be treated as the individual properties of the assessee. The assessee had submitted before the ITO that the self-acquired properties of the father had acquired the character of joint family properties as Intended by the Will. The ITO gave finding that the Testator had not expressed clearly that the properties had been to his sons for being enjoyed as joint family properties. The testator did not make any distinction between his sons and his pre-deceased daughter's son, Motllal Ahir. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, he held that the assessee was entitled to claim partition under s. 177 of the Act. 2. The ld. Deptl. Rep. repeated before us all the arguments of the ITO. He also brought to our notice that the assessee was being assessed as an individual throughout. The ld. Counsel for the assessee relied on the order of the AAC. 3. We find that the subject matter of the partition is the property which the assessee received from his late father. The partition was between the assessee and his son, two wives, and two unmarried daughters. Briefly stated the Department's stand is that the self acquired properties of the father devolved on the son in his individual capacity, the Will could not be interpreted as directing the assesses to ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that shall not be held explainable to anybody. (13) My wife Srimati Marachia Dassi, during her life time shall reside in 19, Mahendra Goswami Lane Calcutta. The said premises after her death shall merge in my estate and my sons and grandson Sriman Motilal shall be the 'Maliks' for equal shares." From the narration of the Will we have to gather the intention of the testator. In our view, the fact that the payments on the maintenance allowance to the wife of the testator was charged on the properties assigned to them (Clause 3) and the narration in cl. 12 that so long as the estate was not partitioned the executors would bear the expenses on the joint family, would clearly indicate the intention of the testator that the properties were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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