COMMISSIONER OF WEALTH TAX, LUCKNOW v. P. K. BA~ERJEE (DEAD) BY LRS

this case is Shri P. K. Banerji'. Under a deed ·of trust, dated October 26, 1937 executed by his father, Shri Pyarey Lal Banerji (hereinafter referred to as 'the settlor') the assessee became entitled to income arising out of the trust fund during his (assessee's) life-time allter the death of the to pay, out of such income certain settlor subject to the liability specified sums periodically as mentioned in the deed to two other persons. Aliter the death of the assessee, the income of the tmst shares to the two other in equal fund was directed to be paid persons referred to above and if either of them should die before the death of the asessee then the whole of such income had to be paid concerned in receive the • c. w. T. v. P. K. BANERJEE (Venkataramiah, J.) 659 issued from to the survivor of them during his or her life. There were certaiJU other directions in the trust deed with regard to the disposal of th~ income arising out of the trust fund with which we are not concerned in this case. The trust fund consisted of oertaio, Indi'a Government loan bonds or securities to time under which certain specjfied interest was payable. The tlotal face value of .such bonds amounted , to Rs. 10 lacs. The Imperial Bank of India, Calcutta (hereinafter referred to as 'the trustee') was appointed as the trustee under the trust deed and the Goverlnment loan bonds or -securities referred to above were trainsfer!red and endorsed in favour of the trustee with a direction to discharge the obligations referred to in the trust deed. Under clause (1) of the trust deed, the settlor .directed the trustee to retain with the said Government loan bonds or securities and upon redemptiOiII of any of them to invest the prooeeds thereof in the purchase of three and a half per cent -Oovernment promiissory notes {old issue) or if this was not practi cable in any other security of the Government of India or if this too was not practicable then in any other securities authorised for the investment of trust funds by Indian Trusts Act, 1:982 or any statutory modificatioo. thereof and to hold and stand po•ssessed -0f the Government loan bonds or securities referred to above or any other investments representing the same as the trust fund to be used in acwrdance with the deed. The the directions contained following are the relevant recitals of the trust deed, dated October the manner in which the 26, 1937 containing directions -.income arising from the trust fund should be appropriated or spent: - regarding "Qa) The Bank shall pay the net income of the Trust Fund to the settlor durilng his life and may instead Of paying the same to him direct, credit the same to the current account of the settlor with the Bank, so long as there shall be any such current account. / od' ithe (b) From and afte11 the death settlor, the Bank shall pay the net income of the trust ftind to the settlor's son Pranab Kumar Banerji during his li!fe, if he should survive the .settlor ,:subject to the payment there out every six months on the thirtieth day of April and thirty first day of October in every year of a sum of Rupees Nine hundred the settlor's son 'Sunab Kumar Banerji and a sum of Rupees six hundred to the seltlor'1s daughter-in-law Purnima Banerji during his or her life, If he or she shall survive the settlor. '{c) If the said Pranab Kumar Banerji shall predecease the settlor or if he should die after having survived the settlor, then A B c D E F ,G H A B c D E F G H 660 SUPREME COURT REPORTS [1981] 1 S.C.R... in the former case on and from the death of the settlor and in the latter case on and from the death of the said Pranab Kumar shall be paid in equal Banerji, the income of the trust shares to the said Sunab Kumar Banerji and Purnima Banerji (if he or she should be then alive) or the whole of such income to the survivor of them during his or her life. (d) If the :said Pranab Kumar Banerji, Sl!nab Kumar Banerji and Purnima Banerji shall predecease the settlor or if they or any one or more oJ1 them shall die after having survived the settlor then in the former case on and from the death of the settlor and in the latter case on and from the death of the survivor of the said Pranab Kumar Banerji, Sunab Kumar Banerji and .Purnima Banerji, the Bank sha:ll stand possessed of the trust fond and the income thereof UPON SUCH TRUSTS as the said Pranab Kumar Banerji by any deed or aeeds with or without power of revocation may app6int or by will or codicil shall ait any time or times appoint AND IN DEFAULT of and so far as any such appoiint:ment shall not extend IN TRUST for the settlor's nephew Manoj Kumar Banerji and the .settfor's niece Jhuni Banerji (now minors), if they are both alive, or such one of the two as may be alive and in default of both for the person or persons who under to intestate succession would on the death of the settlor have been entitled thereto, if the settlor had died possessed thereof and intestate." the law relating ··'t i In exerdse of the power that he had reserved to himself unde11 the trust deed, dated October 26, 1937 to. modify the terms thereof, trust deed, dated April 28, 1950 by the settlor executed ai11other which clauses (b) and (c) of the trus.t deed, dated October 26, 1937 extracted above were substituted by the following clauses: (b) From and after the settlor the Bank shall pay the net income of the trust funds to the settlor' s son Pranab · Kumar Banerji during his if· he should survive the settlor. the death of life time: . (c) If the said Pranab Kumar Banerji shall predecease the testator or if he should die after having survived the settlor then in the former case on and from the death of the settlor and in the latter case on and from the death of the said Pranab Kumar Banerji, the income of the trust funds should be paid in equal shares to my son Sunab Kumar1 Banerji and my oaughter in-law Shakuntala Banerji (if he or she should be then alive) or the whole of such income to the survivor of them during his or her life." · .. ~ c. w. T. v. P. K:. BANERJEE (Venkataramiah, J.) 661 The name 'Punrlma Banerji' occurring in clause ( d) of the trust ueed, dated October 26, 1937 was substituted by the name 'Shakuntala Banerji' by the trust deed, dated April 28, 1950. The resulting position was that the trustee was obliged to pay the net income of the trust fund to the settlor during his life time and after his death income o~ the trust fund to tlhie the trustee had to pay the net If th~ assessee during his life time if he should survive the settlor. assessee should pre-decease the settlor then on and from the death ·Of the settlor and if the assessee should die after the settlor on and from the death of th.e assessee, the income o£ the trust fund had to be paid in equal shares to Sunab Kumar Banerji, the other son of the settlor and Shakuntala Banerji, the daugther-in-law of the settlor (.i,f he or she should be then alive) and the whole of such income had to be paid to the survivor of them during his or her life. We are ·concerned in this case prlncipal!y with the character of the benefit conferred on the assessee by clause (b) of the trust deed as substituted by the trust deed dated April 28, 1950. The settlor di1ed sometime in 1952 and since tqen the assessee. was receiving the pet income from the trust fund in accorda>nce with the said clause as the sole benefidary. During the assessment proceedings under the Act relating to the assessment years i,n, question, the assessee contended before the Wealth-tax Officer, Allahabad that since the corpus of the trust fund was vested in the trustee and not in him, the value of the trust fund. should 111ot be included in his total wealth and that in any event as he had only the right to receive an annuity under the trust deed, the trust fund should not be taken i'n~o account by reason of section rejected the conten 2 (e) (iv) of the Act. The Wealth-tax Officer tions of the assessee and included the full market value of the trust fund in the .trJtal wealth of the assessee in all the five a1ssessmen.t . orders passed by him. The appeals filed by the assessee before the ·Appellate Assistant Commissioner of Wealth-tax, Allahabad were dismissed. On further appeal, the Income-tax Appellate Tribunal, the orders passed by the Allahabad Bench, Allahabad confirmed Wealth-tax Officer and the Appellate Assistant Commissioner of Wealth-taix in so far as the question of non-applicability of section 2 Ce) (iv) of the Act wa1s. concerned bi.tt it held that the iindusion of the entire value of the corpu~ in the computation of net wealth was not correct as the assessee had merely a life interest in it. Accord~ngly it directed the Wealth-tax Officer to modify the assess ments valuing the life interest of the aissessee according to recognised ·principal of valuation. Thereafter a.t the ilnstance of the assessee the cornmam question of law set out above was referred to the High A B c D E F G H A B c D E F G H 662 SUPREME COURT REPORTS [1981] t S.C.R. Court of Allahabad under section 27 (l) of the Act. All the five references relating to the five assessment years were heard together by the High Court in the year 1970. Since the High Court was of the view that it was necessary to direct the Income-tax Appellate Tribunal to submit a supplementary statement of the case on the following questions: right of "(1) Whether the to receive the amounts in terms of the deeds of trust, referred to above is an section 2 (e) (iv) of the Act? annuilty" wi~hin the meaning of assessee statement of (2) if so, whether the terms and conditidns relating to such annuity preclude the commutation of any portion thereof into a lump sum grant?" it directed the Tribunal by its order, dated February 27, 197(} the case on the above to submit a supplementary In accordance with the di:rections of the High Court, que>Stions. the T~ibunal submitted a supplementary statement of the case Lili August, 1970 stating that .the asset in question was not an annuity referred to in section 2 (e) (iv) of the Act. The cases were there after heard by the High Comt. By its judgment, dated March 15, 1971, the High Court answered the common qJ.1estion of law referred the assessee, holding tlhat the to it in the affirmative' in favour of interest of the assessee in the trust fund' amounted to an annuity exempt under section 2 (e) (iv) of the Act. Dissatisfied with the judgment of the High Court, the Department ha.s come up in appeal to this Court. in writing whether There is no dispute that iin the case of assets chargeable to tax under' the Act which are held by a trustee uJnder a duly executed instrument testamentary or otherwise, wealth tax can be directly levied upon and is recoverable from the person on whose behalf the a>ssells are held. Seation 3 of the Act create& the said charge in respect of the net wealth on the corresponding individual, °HindJ.1 undivided family and valuation date of every specified .in Schedule I to the Act. Company at the rate or rates 'Net wealth' according to section 2 (m) of the Act means the amount in accordance with the by which the aggregate value compUlted provisions of the Act of all the assets, wherever located, belonging; to the a!lsessee on the valuation date, including assets required to be included in his net wealth as on. 1Jhat date unider the Act, is i111 excess of the aggregate value of all the debts owed by the assessee on the valuation date other those debts referred to in sub· In section 2 ( e) of the Act, the expres clauses (i) to (iii) thereof. ,property of every description. sion "assets" is defined as including ··~ c. w .. T. v. P. K. BANERJEE (Venkataramiah, J.) 663 Sub-clause movable or immovable but not including in relation to tbe assess ment year commencing on the 1st April, W69 or any earlier assess- ment year tbose items which are mentioned in sub-clauses (i) to (v) of (ivA of section 2 Ce) (1) o£ the Act section 2 (e) (1). this case excludes from the which is relevant for the purpose oil to an annuity in ·any case defi'llitio;n of the word 'assets' a right thereto preclude the where the terms and conditions In commutation of any portion thereof order to claim that ain item of property should not be treated as the Act by vir1tue of sub-clause (iv) of a.n as.set for purposes oJ1 to be established Oi) that it is an annuity -section 2 (e) (1), it has and (ii) that commutation of any portion thereof into a lump sum grant is precluded by the terms and coo.ditions relating ther,eto. into a lump sum grant. relating -Oa!!sessee's) funds during his The property in question is tbe right of tbe asseissee to receive the net income of the life-time. The primary fucts that emerge . from tbe orders of the Tribunal are (1) thait under the trust deed, the settlor intended that after the settlor's death, the assesee should be the sole beneficiary of the net income life-time (2) that the from the trust fund during his assessee had been treating himrelf, as tbe owneJ.1 of tbe trust fund for purposes of income-tax payable by him and had been declaring the income of the trust as his own income and claiming in his own tax paid at source by the trust; income-tax returns deduction for (3) tibat in fact the assessee was sole beneficiary of the net tll.e (4) that he ]]ad under, the trust income derived from trust fund; deed the right of appointment of his successors Ulllder certain. circums tances and proceeds of the Government loan bonds or securities which consti the trust fund upon their redemption as provided in the deed and that therefore the net income realisable from the trust fund was ·subject to variation. One of the significant features of the trust deed, dated October 26, 1937 that what was payable to tibe assessee wa,s not a periodical payment of a definite predetermined sum of money but only the net income of the trust funds, although it was possible to predicate at any given point o~ time such income the faat that the trust fund with some c.er1tainty having regard to in the instant ca.se consisted of Government loan bonds or securities', the proceeds of which on redemption were liable to be invested illl other securities as indicated in the trusit deed, dated October 26, 1937. (5) that the tnistees bad the power invest The principal reason given by the High Court to arrive at the conclusion that the property in question was ah annuity is set out in its judgment thus: A B c D E F G H A B c D E F G H ' 664 SUPREME COURT REPORTS [1981) 1 S.C.R. Prooeed.1!1'.g, interest and "In the case before us the property settled under the trust deed 'consists of Government securities, and it is apparen:t from the schedule appended to the deed thait they bear interest at a fixed and determined rates. The settlor conferred upon the trustee the power to redeem the government securities and the purchase of 3}% Govemmen:t to invest the proceeds in promissory notes (old issue) or in any other securities of the Government of India, or that if that was not practicable then the investment of the authorised for in any other securities trust fund by the Indian Trusts Act. There is nothing on the record before us to show that the original securities comprising the trust property were converted or replaced by securities not returning a fixed and bearing a fixed rate of definite income. therefore, on the basis that a definite and certain income is yielded by the securities, we have no hesitation in holding that what the assessee received was an amount which did not depend upvn or was related to the gener!al income of the estate that it fluctuated with a fluctuating income. Having regard to the character and nature of the property settled under the trust, no question arises of a rise or fall in the amount of income produced by the trust property and, therefore, in a sense what the a1ssessee is ero,ititled to is a definite and certain sum. Also, having regard to the terms of the trust deed it is not possible to say that the interest of the assessee constitutes an interest iin the capital of the trust fund. Therefore, upon the test laid down by Jenkins L. J. in Duke of Norfolk : In re : Public Trustee v. · Inland Revenue Commissioner (1950) I Ch. 467, it cannot be '1described as a Jrne interest. We are fortified in the view we are taking by the decision. on somewhat comparable faces. of the Andhra Pradesh High Court in Commissioner of Wealth-tax v. Nawab Fareed Nawaz lung & Ors., (1970) 77 I.T.R. 180. i:n the It is true that the as1sessee is entitled to the net income only and that because the trustee has the right to deduct from the gross income its remuneration, its a111nual income fee and the expenses i'n managing the trust estate, the net income may vary from year to year. Yet even hiere the remuneration aind the annual income fee can be charged by the trustee at a fixed rate only, and any varnation in uhe net income may be attributed to the varying expenses from year to year in managing the trust estate. We have already poilllted out that freedom from varia tion is not an absolute the character of an annuity. We are of opi!nion that wherfe it varies merely because test determining c. w. T. v. i>. K. BANERJEE (Venkataramiah, J.) 665 of the charges and expenses payable on account of the adminis- tration of the trust it does not lose i~s character as an !!Jn:nuity. A j .. Upon the aforesaid consideration, it seems to us that the right of the aissessee to the net income from the trust property under the trust deed ca:n be described in law as a right to an annuity." The High Court appears to have felt that the facts of the case were distinguishable from the facts in Ahmed G. H. Arif] & Ors. v. ,Commissioner of Wealth-;tax Calcutta( 1) and the facts in Commis sioiner of Wealth-tax, Gujarat II v. Mrs. Arundhati Balkrishna(2). -we shall presently deal with these two cases. the English law, The word 'a:nnuity' is not defined in the Act. In one of the e.arliest legal compilations of the term 'annuity' has been explained as a:n yearly payment of a certain sum of money : granted to another in fee or for lit1e or forl a term of years either payable under a personal obligation of the grantor or charged upon his pure personality, although it may be made a charge upon his, freehold or leasehold lend in which latlter case it is commonly called lin Halsbury's Laws of England, ·a rent-charge (See Co. Litt 144b). ·Third Edition (Vol. 32, page 534 para 899), the meaning of the said expression is given1 as a certain sum of money payable yearly either as a personal obligMion of the grantor or out of property not ·consisting exclusively of land; it differs from a rent-charge in that : a rent-charge 'annuity' . iS described thus: In Bignold v. Giles.(3) issues out of land. "An annuity ·is· a right to receive de anno in· annum a certain ,sum; that may be given for life, or for a series of years it may be given during any particular period, or ~n pef!petuity; and there is also this singularity about annuities, that although they are capable of being payable out of the personal assets, given for the purpose of devolution, as real estate<; they may be given to a man and his heirs, a:nd may go to the heir as real estate; so an annuity may be given ~o a ma:n and the heirs of his body; that does not, it is true, constitute. an esta.te tail, the Statute De Donis, which contains but thart: is by reason of only the word 'tenements' and an annuity, though a heredita ment, is not a tenement; and an annuity so given is• a base fee." {I) [19701 76 I.T.R. 471. (2) [1968] 70 I.T.R. 203. (3) (1859) 4 Drew 345; 113 Revised Reports 390. ,, B c D E F G H 666 SUPREME COURT.REPORTS [1981] 1 S.C.R .. A It is further observed in the above deci;sion thus: shows hls "But this appears to me at least clear, that if the gift of· what is called an annuity is so made, that, on the face of the· intention to give a certain will itself, the testator portion of the dividends of a fund, that i1s a very different thing; and most of ihe cases proceed on that footing. The ground is, that the court construes the intention of the testator to be,. not merely to give an annuity, but to give an. aliquot portion of the income arising from a certain capital fund". The three illustrations given under section 173 of the Indian· Succession. Act, 1925 dealing with bequests Otf annuities also refler· to the payment of certain definite sums periodically and they do· not refer to periodical payments of income arising out of any trust fund. It is against this background ~hat this. Court proC(leded to decide the case of Ahmed G. H. Arifj (supra). In that case, the Court: was called upon to determ±ne whether the benefits conferred on the appellants under a deed creating a waldl-alal-aulad were annuities. or not The relevant part of the deed, which declared that the ultimate benefit in the case of complete intestacy of the descendants. of the settler was reserved for poor Musalmans of Sunni community· deserving help, read thus: "AJiter payment of all necessary outgoings such as establish- ment charges, collections charges, revenue taxes, costs of repairs,. law charges and other expenses for the upkeep and management the mutawalli or mutawallis shall of the said wakf property, apply the net income of the said wakf property as follows, viz.: (a) in payment to me during the term of my life of· one-fifth of the said net income by monthly instalments; (b) in payment to each of my sons during the respec-- _ live terms of their live.s one-sixth of the said net income by monthly instalments; (c) in payment to my wife, Aisha Bibi, during the· term of her life one-tenth of the said net income by monthly· instalments. The moneys payable as aforesaid to such of my sons as the age of majority be· they attain are minors shall until respectively invested (!after defraying the expenses of their main- tenance and education) · in proper securities or in landed property in Calcutta and such securities or property shall be· B c D E F G H I l' ~' c. w. T. v. P. K. BANERJEE (Venkataramiah, J.) 6 6 7 made over to the said sons on their respectively attaining the age of majority." A This Court held that the . right of the beneficiary to receive an the properties was an asset aliquot share of the oot covered by the definition of section 2(e) of the Aat and not a mere 'annuity' and affirmed the decision of the Calcutta High Court in Ahmed G. H. Arifj v. Commissioner of Wealth Tax Calcutta.(1) income of In the ca1se of Mrs. Arw1dhati Balkrishna (supra) to which one trusts created by the father of the of us was a party, under assessee and one trust created by her mother-illl-law, she was to be paid annually the net income of each of the trusts after deducting costs· and expeaJ1>es or administration of the trust. Under the terms the assessee, the corpus of the of the trusts, after the life time -of trust in each case had to be dealt with as proviaed in them. Since the assessee wais entitled to the whole residue of the income from the trust funds available aliter de.fraying expenses of the trust and not any specified or pre-determined amount, the High Court of Gujarat held that the right of the assessee under each of the trust deeds was not an annuity but only amounted to a life interest. The decision of the High Court of Gujarat was later affirmed by this Court ·in Commissioner of Wealth-tax, Gujarat v. Arundliati Balkrishna(2) in which it was observed thus : "On an analysis of the relevant clauses in the three trust deeds, it is clear the assessee was given thereunder a share of the income arising settled. on trust. Under the funds those deeds she is not entitled to any fixed sum of money. Therefore, it is not possible to hold that the payments that she is entitled to receive under those deeds are annuiities. She has In Ahmed G. H. undoubtedly a life interest in those funds. Arif] v. Commissioner of Wealth-tax (1966) 59 I.T.R. 230 (Cal.), a Divisim Bench of the Calcutta High Court held that the right of a person to receive .. under a wakf · an aliquot share of the net income of the wakf property is an "asset" withiin the meaning of the Wealth-tax Act, 1957, and the capital value of such a right is assessable to wealth-tax. Therein, the Court repelled the contention right in question was an "annuity". This decision was approved by this Court in Ahmed G. H. Arifj v. Commissioner of Wealth-tax (1970) 76 I.T.R. 471 (S.C.) Civil Appeals Nos. 2129-2132 of 1968 decided on (1) (1966) 59 I.T.R. 230. (2) (1970) 77 I.T.R. 505. B c D E F G H A B c D E F G H 66 8 SUPREME COURT REPORTS [1981] 1 S.C.R. August 20, 1969) and the same is bil!lding on us. A similar view was taken by another Bench of the Calcutta High Court in Commissioner of Wealth-tax v. Mrs. Dorothy Martin (l.968) Jin, that case under the will of the assessee's · 69 I.T.R. 586 (Cal.). receive for her life the father the assessee was entitled annual interest accruing upon her share in the residuary trust fund. The Wealth-tax Officer included the entire value of the said share in the assessable wealth of the assessee and subjected the same to tax under section 16 (3) of the Wealth-tax, 1957. That order was confirmed by the Appellate Assistant Commis sioner but the Tribunal in appeal excluded the same in the computa,tion of the net wealth of the assessee. On a reference made to the High Court, it was held that, on a construction of the various clauses in the will, the assessee was entitled to an aliquot share iin, the general income of the residuary trust fund and not a fixed sum payable per:iodically as "annuity" and, therefore, the value of her share was an asset to be included in computing his net wealth. These decisioos in our view correcily lay down the legal position. In this view, it is not necessary to consider wheth,er the income receilvable by the assessee under those deeds, either wholly or in part, is capable of being commuted into a lump sum grant. For the reasons mentioned above, we agree with the High Court that payments to be made to the assessee under the three• trust deeds cannot be considered as annuities, and, hence, she is not entitled to the benefits of section 2 (e) (iv)." It is, however, contended on behalf of the assessee in this case that since the trust fund consisted of Governmern.t securities which were yielding definite annual income by way of ilntereist and there was no evidence of the said securities having been converted into other securiti~s yielding higher or lower income, it should be assumed that the benefit confe1Ted On the assesee was only an 'annuity' and not a life interest. Thi1s com.tention has to be rejected for the very reason for which a ;similar contention was rejected by this Court in Commissio.ner of Wealth-tax, Rajasthan v. Her Highness Maharani Gayatri Devi of Jaipur(') in the following words: "From these clauses it is clear that the intootion of the Maharaja was that the assessee should get a half share in the income of the trust fund. Neither fund was fixed nor the amount payable to the assessee was fixed. The only to a, 15 /30 share from out thing certain i~ that she is entitled (1) (1971) 82 I.T.R. 699. c. w; T. v. P. K.' BANERJEE (Venkataramiah, J.) 66 9 of the income oil the trust fund. That being so, it is evident that what she was entitled to was not an annuity but an aliquot share in the income of the trust fund. A • Mr. Setalvad, learned counsel the aissessee, co•ntended that during the year with which we are conoerned, there was no change in the trust fund and in view of that fact and as we are considering the liability to pay wealth-tax, we would be justified in holding that the amount receivable by the assessee in 1the year concerned was an annuity. We see no force in this contenti'on. The. question whether a particular income is an annuity. or not does not depend on the amount received in see is what exactly WlllS . a particular year. What we have to the intention of the Maharaja the trust. Did he intend to give the assessee. a pre-determined sum every year or did he intend ·to give her an aJrquot share in the income of a there can be only one answer and that is that he intended to give her an aliquot share in the in.come of the tmst fund. An income cannot be annuity in one year and an aliquot It cannot change its character year after year. From the facts found, it is clear that the assessee has life interest hi the trust fund." in another year. in creating _ fund? On that question, I Tt;e decision of the High Court of Andhra Pradesh in, Commis sioner of Wealth-tax, A. P. v. Nawab Fareed Nawaz Jung & Ors.( 1) on which the High Court has relied in this caise to the extent it takes a con~rary view must be held to be incorrect. We may now to considen the decision iin In re Duke of Norfolk: on which the Public Trustee v. lnla'llld Revenue Commissioner(2) High Court relied heavily in arriving at its conclusion. The point which arose for consideration in the above case was whether, where one continuing atll!nuity for two or more lives was given to two or more persons in succession and charged on property, on the death of any annuitant, other than the last to die, estate duly was payable under section 1 of the Finance Act, 1894 oo the footing that it was the annuity whkh passed on the annuitant's death. The esf\ite duty the death of an annuitant, who authorities claimed estate duty on was not the last of the annuitants to die on the slice of the capital required to produce the annuity, on the footing that as annuitant, the deceased had an interest on the capital charged with the annuity and that cesser of that interest gave rise to a benefit taxable under (1) (1970) 77 I.T.R. 180. (2) (1950) Ch. 467. c ' E. F G A B c D .F G H 670 SUPREME COURT REPORTS [1981] 1 S.C.R. section 2(1Xb) of the Finance Act, 1894. The Public Trustee, in that estate duty became payable whom the estate vested, claimed on the value of a cootinuililg annuity for the life of the annuitant who succeeded to the annuity on the death of the deceased annit Jenkins L.J. in the course of his judgment in the above case ant. explaililed the difference between an annuity and a life interest thus: "An annuity charged on property is not, nor is it in any way equivalent to, an interest in a proportion of the capital of the property chaI1ged sufficient to produce its yearly amount. It is nothing more or less than a right to receive the stipulated yearly sum out of the income of the Whole of the property charged (and in many cases out of the capital in the event of a deficiency of income). interest in any parti cular part of the property charged, but simply a security extending over the whole. The annuitant is entitled to receive no less and no more than the stipulated sum. He neither gains by a rise nor loses by a fall in the amount of income produced by the property, except in so far as there may be a deficiency of income in a case in which recourse to capital is excluded. It confers no and indeed constitutes, a On the o1her' hand, a life initerest in a share of the income of property is equivalent to interest in the share of the capital corresponding to the share of income. The life tenant enjoys the 1share of income whatever it may amount to, and his interest, viewed as a· 1ilfe interest in capital, consists of a constllillJt proportion of the whole property, whether the income is great or small, and whether ~he capital value of the property falls. The property which changes hands on his death (or in other words passed under s. 1) thus clearly consists of the designated share of capital, which then passes from his beneficial enjoyment to that of another, an annuity cannot be so related to any fixed proportion of capital : See De Trafford v. Attorney-General (1935) A. C. 280." rises or Evershed M. R. who delivered a separate judgment agreed with the observation and stated thus: "Jin the case of one who has enjoyed for his life (say) one fourth of the income of an estate, it seems to me in accordance with common sense and a natural use of language to say that he enjoyed for his life, that he was life tenant of, a fourth part of the (corpus of the) estate; and, accordingly, that upon his death a fourth part of the estate passed to the next successor. But no such language can, in my judgment, appropriately be used in the case o~ an annuitant. He is in no way concc:rne<i c. w. T. v. P. K. BANERJEE (Venkaiaramiah, J.) 6 71 with changes in the yield of the estate; his right to his annuity the estate may produce or will continue whatever (unless he has a estate produce no income at all." income oniy) right to income though The learned Master of the Rolls distinguished the cases of :Jn re Northcli'ffe( 1) and Christie v. Lord Advoeate(F) from the case lJefore him thus: "Both the two last-mentioned cases were instances of dis positions of aliquot shares of tlhe general income of an estate to be enjoyed in succession, as distinct from an annuity or yearly the case of In re sum, which, even Cassel (1927) 2 Ch. 275) is in no way dependent upon or related to the general income of the estate." though variable (as Io. Accordingly the contention of the Crown was rejected. On :going through the above decision carefully, we do not find any ·support for the contention _urged on behalf of the asses'See in the present case. The decision is quite clear on the point that when 1he payment is dependent upon the income of the corpus, it cannot be called an annuity and that an annuity even though it may be -variable as in the case of In re Cassel(3) can in no way be depen dent upon or related to the general income of the estate. The High ·Court was, therefore in error in relying upon the decision in Duke In re. Public· TrYStee (supra) for holding that notwith .of Norfolk: standing the existence of the possibility of variatibn in the payment to be made in the above case to the· assessee depending upon the income of the fresh securities to be acquired by the trustee on the redemption of any o1l the se.curities transferred at the time of the the payment would amount· to an ·execution of the trust deed, annuity.· On a ci:>ttsideration of the deci'sions cited before us, we feel that in order •to constitute an annuity, the payment to be made periodi ·cally should be a fixed or pre-determined one, and it should not be · liable to any variation depending upon or on any ground relating to the general income of the fund or estate which is charged for In the instant case, as observed in the case of Her such payment. Highness Maharani Gayatri Devi of Jaipur (supra) what we have to see is the intention of 1lhe settlor, whether he wanted that the a•ssessee should get a pre-determined sum every year or whether the assessee (1) [1929] 1 Cr. 327. (2) [1936] A.C. 569. (3) [1927] 2 Ch. 275. A B c D E F G H A B c 672 SUPREME COURT REPORTS [1981] 1 S.C~R~ '-·. ::. - ... ,- should get the whole net i;:icome of the trust fund. Since the, inten tion of the settlor was indisputat'y the latter one, the right of the assessee cannot be treated as an annuity. An additional factor which requires us to take the same view is that under the trust deed the trustees had been given the power to reinvest the proceeds of the Government secmities which leads to the possibility ·of variation of the income and consequently of the amount to be received by the assessee. The fact that no such taken place during the relevant years is immaterial. reinvestment had In view of the foregoing, the appeals are allowed, the judgment of the High Court is set aside and the question referred to the High Court under section 27(1) of the Act is answered in the negative and In the circumstances of the case, the assessee against the assessee. shall pay the costs of tile Department. (Hearing fee one set). \ V.D.K'. ! Appeal allowed. , . ' "'· ; • ' ~ ' ... GIPN-Sec. ~47 S. CJ?;.iia/80-S-5-81~2500 . •• t \ -' -