ANSARI, J. - The assessees before us are the seven minor children of one Haji Essa Haji Abdul Sathar Sait. Their father is the second son of a Memon lady called Assi Bai, who, by a settlement deed of 1945, had conveyed some of her properties to the seven as well as to the other children of her son, Haji Essa Sait. She had also settled other properties described in schedule A to the deed to the children of her other son, Hahi Essak; but he has only one daughter. Similarly properties mentioned in schedule C to the deed had been given to the issue of her yet another son, Hahi Hassan; but he also has only a daughter. In this reference we are not concerned with properties covered by A and C schedules but only with what had been settled on the seven minor children of Hahi Essa. All the beneficiaries have been by the deed declared entitled to the properties according to the Mahomedan law and as the children belonging to Haji Essas branch are seven, a question has arisen whether their income from the properties should be assessed like those of an association of persons.
The Income-tax Officer had held that the shares of the grandchildren are not determined and, therefore, they could not take advantage of section 9(3) of the Income-tax Act, which reads as follows :
'Where property is owned by two or more persons and their respective shares are definite and ascertainable, such persons shall not in respect of such property be assessed as an association of persons, but the share of each such person in the income from the property as computed in accordance with this section shall be included in his total income.'
The appellate authority had overruled the objections of the assessees to the assessment. The Tribunal has also found the shares of the persons in the properties not to be ascertainable and, therefore, dismissed this appeal. Thereafter, the following question was asked to be and was referred to this court;
'Whether as per the provisions of the deed of settlement No. 355/1121 the shares of the minors in the income from house properties are definite and ascertainable as contemplated under section 9(3) of the Indian Income-tax Act ?'
It cannot be disputed that if the donees be held to have got shares which be definite, the provision of section 9(3) would be come applicable. It is equally well settled that, under the personal law that governed the grandmother and her grandchildren, a gift of property capable of division to two or more persons without dividing is not valid. It follows that the donees should get or obtain possession of definite shares in order to become donees. The counsel for the assessees has urged that under their personal law a female child gets half of what her male brother takes and the deed has given such estates to his clients. He has drawn our attention to Nizam-ud-din of Lahore, In re, where the view taken is that the heirs under Mahomedan law get different shares in what they inherit. He has also relied on Vir Bhan Bansi Lal v. Commissioner of Income-tax where it has been held that if the share be definite, the persons obtaining them cannot be treated as associations. The counsel for the assessees has, therefore, argued that by the use of the words 'Mahomedan law' in paragraph 3 of the settlement deed, the intention of the donor is to make the shares of the grandsons double of what the granddaughters would get and thus each donee got a fixed share. The relevant translation of the aforesaid paragraph reads as follows :
'The properties so settled as per this deed are to belong to the minor children in each of the branches nor alive and mentioned herein and those who may be born to their parents hereafter in equal shares according to Mahomedan law.'
It is clear that the shares, which the donor intended the beneficiaries to take, were to be separate; for paragraph 10 of the deed directs the income to be divided and debars the donees from disputing the division according to Mahomedan law as mentioned in paragraph 3. It is further clear that those shares were meant to be definite and what the donees would get under their own personal law of succession. For the use of the words 'Mahomedan law' in the context can only mean that or becomes meaningless. Had the intention been to divide the income equally the donor could have stated so without mentioning Mahomedan law. She could not have meant the donees to take jointly, for, then the gift would not be valid. Therefore, the intention to be fairly inferred from the use of the words is that the shares the donor be fairly inferred from the use of the words is that the shares the donor conferred were what the children of each branch would get by succession in the properties, had they been of their ancestor, the share of the female heir being half of her brother. This inference is further supported by unborn children having been also declared as beneficiaries.
The counsel for the Department has referred to the word 'equal' in the translation of the settlement deed and has argued that because of the direction the share of a granddaughter would not be half of the grandson. The word 'equal' is not found in the original, and, therefore, no argument can be built on it. It is clear that the donor did not intend her grandchildren to get undefined shares in the properties and the arguments of the assessees counsel should be accepted. We think that the case is one to which section 9(3) of the Indian Income-tax Act applies. Accordingly the question referred to us is answer be sent to the Department. The assessees, however, will not be entitled to any costs as the mistake has arisen due to the incorrect translation furnished on their behalf.
Question answered in the affirmative.