Beaumont, C.J. - The Commissioner in this case has raised a question whether in the circumstances of the case the sum of Rs. 9,962 received by the assessee by cheques every month from the executors of his fathers estate has been rightly included by the Income-tax Officer in computation of his total income.
It is found as a fact by the Assistant Commissioner that this sum was actually paid by cheques every month to the assessee out of the income of the estate of his father. Now, under the fathers will, by Clause 14, the executors are directed to spend a sum up to Rs. 500 a month for the maintenance and education of the son, who is the assessee, and a daughter Kusum, who is now married. Then they have a discretion to exceed the sum of Rs. 500 per month if they think necessary. Then the last sentence is : 'The provisions contained in this clause shall cease to have any operation after Gordhan shall discontinue his study and earn his livelihood in business or some profession and Clause 20 shall come in operation thereafter.'
The Commissioner has not gone into the other provisions of the will but we enquired as to what happens to the residue, and we have been supplied with a copy of the will, and it is quite clear that under Clause 20 of the will the assessee is entitled to the income for life, and the assessee being of age is entitled to claim the income for life, and he is not bound to wait until he has discontinued his study and commenced to earn his own livelihood. On the finding of fact that this sum of Rs. 9,000 odd had been paid to the assessee out of the income of the testators estate I can see no reason whatever why it should not be regarded as part of his income. I do not know why it is assumed that it was paid under Clause 14 of the will which is not confined to payments out of income. I am not prepared to make that assumption on the finding of fact that the money has been paid to the assessee out of the income of the estate. I see no reason whatever to doubt that it was properly included as part of his income.
We therefore answer the question in the affirmative. Assessee must pay the costs.
Reference answered in the affirmative.