Case: Biswaranjan Bysack Vs. Commissioner of Income Tax, Calcutta

vested absolutely and belonged to the Thakoors Sri Sri Bolloramjee and Sri Sri Issur Radhakantjee or whether in the facts and circumstances, the said four properties vested in and belonged to Sarbaranjan Bysack, subject to a charge for meeting the expenses of sheba and worship of the said Thakoors, in the way the same was carried on by the said Kedarnath Bysack and his mother. " 3. The High Court answered the question against the assessee and in favour of the Commissioner of Income-tax. 4. It was argued on behalf of the appellant that the four properties have not been partitioned by metes and bounds between Purnashasbi Dassi and Sarbaranjan Bysack as has been done with respect to the other properties in the residuary estate. It was also pointed out that the Commissioner has, in his report dated July 4, 1900, mentioned that the four properties were " set apart for the purpose of sheba and pujah of the two deities for which it was necessary to provide a sum of Rs. 2, 000 annually ". The argument was therefore stressed on behalf of the appellant that, though there was a failure of the bequest to the two deities made by the testator in his will, there was a " debutter " created on account of the final decree of the Calcutta High Court and the commissioners report already referred to. In our opinion, there is no justification for the argument put forward on behalf of the appellant. It is important to notice that, in the preliminary decree in Suit No. 363 of 1896, the bequest to the two deities was declared invalid by the High Court. The result was that Sarbaranjan and the heir of Dakhinaranjan became entitled to the residuary estate. The preliminary decree directed " an enquriy as to what provision should be made for carrying on the worship of the two deities, Sri Sri Bolloramjee and Radha Kant Jew, ......... in the way the same was carried on by the said testator and his mother ". The preliminary decree proceeded to state" And it is further declared that the said defendant, Sreemutty Koylashmoney Dassee, is entitled to act as Sebayet of the said Thakoor during the minority of the infant defendant, Surborunjan Bysack, and that thereafter the said defendants, Sreemutty Koylashmoney Dassee and Surborunjun Bysack, will be entitled to act as Sebayots jointly. And it is further declared that, subject to the aforesaid provisions and payments being made, the plaintiff is entitled to the estate of a Hindoo widow to a moiety or one equal half part or share of the residue of the said testators estate (the same into two equal parts or shares being considered as divided and hereinafter referred to as the said residuary estate) and that the said defendant, Surborunjun Bysack, is entitled to the other moiety or equal half part or share thereof : " 5. It is clear that the direction in the preliminary decree was that provision should be made out of the testators estate for the performance of Sheba and worship of the deities and for meeting the other legacies in the testators will and thereafter the residuary estate was ordered to be divided equally between Purnashashi Dassi and Sarbaranjan Bysack. According to the direction of the preliminary decree, the commissioner reported that it was necessary to provide Rs. 1, 500 annually for the Sheba of Thakoors Bollor amjee and Radhakantjee Jew and Rs. 500 annually for gifts and donations on poojhas and for festival occasions. He recommended that four properties should be set apart for these purposes. It does not mean that the commissioner intended that the title to the four properties should be vested in the deities. The intention was that a fixed sum of Rs. 2, 000 annually should be spent for sheba and worship of the deities and it is not possible to draw any inference that there had been a gift of the four properties to the deities. The words " set apart " used in the commissioners report only indicated that the expenses of worship and puja of the deities should be met from the income of the four properties but not that the title and ownership of the properties should pass to the deities. In any case, even if there is an ambiguity in the commissioners report, it should be read in the context and background of the preliminary decree of the High Court in suit No. 363 of 1896. Having regard to the clear terms of the preliminary decree, we are of the opinion that there is no scope for the argument that there was any dedication of the four properties in favour of the two deities because of the commissioners report. It is manifest that the four properties formed part of the residuary estate of Sarbaranjan and Purnashasbi Dassi subject, however, to a charge or obligation to perform the Sheba and worship of the deities in the manner provided in the commissioners report. The argument was stressed on behalf of the appellant that the four properties had not been partitioned by metes and bounds between Purnashashi Dassi and Sarbaranjan as had been done with respect to the other properties comprised in the residuary estate. But this circumstance alone cannot lead to the conclusion that the four properties became vested in the deities. It is likely that the commissioner made no partition of these properties in view of his recommendation that the income from these properties should be spent for the Sheba and worship of the two deities. On a true interpretation of the will of late Sri Kedarnath Bysack and his codicil and having regard to the preliminary and final decrees of the High Court, we are of the opinion that the four properties which had been set apart by the commissioner for the performance of Sheba and worship of the deities formed part of the residuary estate of the testator and they were not dedicated for charitable purposes.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In our opinion, there is no justification for the argument put forward on behalf of the appellant. It is important to notice that, in the preliminary decree in Suit No. 363 of 1896, the bequest to the two deities was declared invalid by the High Court5. It is clear that the direction in the preliminary decree was that provision should be made out of the testators estate for the performance of Sheba and worship of the deities and for meeting the other legacies in the testators will and thereafter the residuary estate was ordered to be divided equally between Purnashashi Dassi and Sarbaranjan Bysack. According to the direction of the preliminary decree, the commissioner reported that it was necessary to provide Rs. 1, 500 annually for the Sheba of Thakoors Bollor amjee and Radhakantjee Jew and Rs. 500 annually for gifts and donations on poojhas and for festival occasions. He recommended that four properties should be set apart for these purposes. It does not mean that the commissioner intended that the title to the four properties should be vested in the deities. The intention was that a fixed sum of Rs. 2, 000 annually should be spent for sheba and worship of the deities and it is not possible to draw any inference that there had been a gift of the four properties to the deities. The words " set apart " used in the commissioners report only indicated that the expenses of worship and puja of the deities should be met from the income of the four properties but not that the title and ownership of the properties should pass to the deities. In any case, even if there is an ambiguity in the commissioners report, it should be read in the context and background of the preliminary decree of the High Court in suit No. 363 of 1896. Having regard to the clear terms of the preliminary decree, we are of the opinion that there is no scope for the argument that there was any dedication of the four properties in favour of the two deities because of the commissioners report. It is manifest that the four properties formed part of the residuary estate of Sarbaranjan and Purnashasbi Dassi subject, however, to a charge or obligation to perform the Sheba and worship of the deities in the manner provided in the commissioners reportBut this circumstance alone cannot lead to the conclusion that the four properties became vested in the deities. It is likely that the commissioner made no partition of these properties in view of his recommendation that the income from these properties should be spent for the Sheba and worship of the two deities. On a true interpretation of the will of late Sri Kedarnath Bysack and his codicil and having regard to the preliminary and final decrees of the High Court, we are of the opinion that the four properties which had been set apart by the commissioner for the performance of Sheba and worship of the deities formed part of the residuary estate of the testator and they were not dedicated for charitable purposes.