JUDGMENT

RANGANATHAN, J.:- Balabhai Damodardas, aged 98 years, executed at will on October 6, 1956, so that, after his death. his property might be "administered as per his desire". The material provisions of the will were as follows:

"2. I have the following properties of my ownership:-

(a) My individual i.e. personal movable and immovable property which is being assessed in Income-tax as individual.

(b) Whatever right, title and interest have in movable and immovable properties of our joint family.

3. The above movable and immovable properties I may enjoy, sell or exchange in future, but if by Gods Will at the time when I am not alive whatever is left of my individual personal property of my ownership including additions or deletions therefrom after paying my debts, income-tax, super-tax, estate duty, municipal tax etc. and any other outstandings as also medical expenses and expenses for obsequial ceremonies and charity and also my right, title and interest in our joint family movable and immovable properties, in that way all my property when I am not alive shall be taken possession of by my two grandsons Navnitlal Sakarlal and Nandkishore alias Shamubhai Sakarlal and they shall use and enjoy the same as they desire."

There was no executor named in the will.

2. Balabhai Damodardas died on 31-12-57. Thereafter, his son, Sakarlal Balabhai, describing himself as the legal representative of the deceased, furnished returns of income as well as returns of wealth in respect of the estate of the deceased Balabhai Damodardas and he was assessed on the basis of those returns for the assessment years following the death and up to assessment year 1967-68.

3. We are concerned in these appeals with the income-tax assessments of Navnitlal Sakarlal (herein referred to as the assessee), one of the two grandsons of Balabhai Damodardas, to whom the latter had bequeathed his properties, for the assessment years 1963-64 to 1967-68. The Income-tax Officer took the view that the estate of Balabhai Damodardas had vested in the two grandsons immediately on his death as per the terms of the will. He, therefore, proceeded to assess the assessee and his brother separately in respect of one half of the income from the properties left behind by Balabhai Damodardas. The contention of the assessee, that the estate of the deceased was still under administration and continued to be so till August 5, 1970, and that the income thereof had rightly been assessed, in the earlier years as well as in the years presently under consideration, in the hands of Sakarlal Balabhai as executor, was rejected. The Appellate Assistant Commissioner also confirmed the view taken by the Income-tax Officer, though, for the assessment years 1966-67 and 1967-68 he made some modifications in the assessments with which we are not here concerned.

4. The Income-tax Appellate Tribunal had earlier taken the view, in the wealth-tax assessments of the assessee and his brother for the assessment years 1963-64 and 1964-65, that, on the death of Balabhai Damodardas, the assessee and his brother had become the owners of interests in the estate in accordance with the will and were consequently assessable to wealth-tax in respect of their respective shares in the estate. This view had also been upheld by the Gujarat High Court in its judgment reported as Navnitlal Sakarlal v. C.W.T., (1977) 106 ITR 512. However, when the income-tax appeals for the assessment years 1964-65 to 1967-68 came up before the Tribunal, it took the view that the assessee was not taxable in respect of any part of the income of the estate of Balabhai Damodardas for these assessment years. The additions made in the assessment orders in this respect were deleted.

5. At the instance of the Revenue, the following question was referred to the High Court of Gujarat for its opinion under Section 256(1) of the Income-tax Act, 1961 :

"Whether the Income-tax Appellate Tribunal was right in law in holding that half share of the income in respe