Law:

Section:

JUDGMENT Chandurkar, J. — At the instance of the revenue, the following question has been referred to this court under s. 64(1) of the E.D. Act, 1953 : "Whether, on the facts and in the circumstances of the case, the property under consideration would pass on the death of the settlor under s. 12 of the Estate Duty Act?" One Mahumuden Nissa Begum died on 28th October, 1961. She along with her husband had created a waqf-alal-aulad by a deed dated 21st February, 1938, constituting the settlors as the trustees and the waqf was for the benefit of their children. The material clause, on the construction of which the decision of the question referred depends, reads as follows : "Provided always that the settlors during their joint lives and after the death of either of them, their survivors shall be the sole managing trustees or trustee of these presents and the said third trustees Nawabzada Meer Sultan Alam Khan Saheb or any other person or persons shall not be entitled to interfere with the management of the trust premises or in the execution of the trusts created by these presents until the deaths of the settlors and further that it shall be lawful for the present trustees, during their respective lives and after the death of the last survivor of them, for such of the lineal descendants in the direct line of the present trustees as shall be appointed the trustee or trustees of these presents to occupy one of the flats of the trust premises and one motor garage free of rent during their respective lives, so as to enable such trustee or trustees to better manage the trust premises." The trust property consisted of a building known as "Belha Court" and the flat which the deceased was entitled to occupy as a managing trustee was only a part of the trust property. The effect of this trust was that 17% of the net income was to be carried to a reserve fund for carrying out repairs to the trust property and the remaining 83% of the income was to be paid to the settlors during their joint lives for their absolute use and benefit and in case of prior death of the deceased's husband such balance was to be paid to the deceased for her absolute use and benefit, and the trustees…

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