The right to receive a specified share of the net income from a wakf estate is an asset the capitalised value of which is assessable to wealth-tax.

1. MITTER, J. The question referred to this Court under s. 27 of the WT Act is :

"Whether on the facts and circumstances stated the right of the assessee to receive a specified share of the net income from the wakf estate is an asset the capitalised value of which is assessable to wealth-tax?"

The facts are very short : One Golam Hossain Cassim Ariff, a Mohammedan, created a wakf on 19th Nov., 1928, of certain lands, hereditaments and premises whereby he appointed himself the sole mutawalli of the wakf property during his life and after his death his sons and his widow were to be mutawallis jointly. The mutawalli or mutawallis were to retain a proper establishment to look after the wakf property and keep proper accounts thereof. After payment of all necessary outgoings including revenue, taxes, repair charges, etc., the mutawallis were to divide the income of the wakf property in the manner stated, that is to say, pay the wakif Rs. 700 per month, Ibrahim Golam Hossain Ariff Rs. 600 per month for his life, a similar sum to each of his other sons and the sum of Rs. 400 per month to his wife. On the death of any of the beneficiaries the money payable to him was to be paid to and distributed amongst persons entitled to the same according to the Mohammedan law as heirs to the beneficiaries so dying. There was a deed of rectification of the wakf executed on 5th July, 1930, by which the payment to the wakif and the first mutawalli as also to the other beneficiaries was to be made in a different manner. The wakif was to get for the term of his life 1/5th of the net income of the property by monthly instalments, his sons were each to get 1/6th of the net income for their lives respectively, and the wife was to get 1/10th of the net income. The assessee failed to convince the Revenue authorities that wealth-tax could not be levied in respect of his right to receive a definite share of the net income from the wakf property. Before us it was contended :

(1) That such right was not property which could be described as an "asset" for the purpose of the Act. (2) If the above contention was not accepted the asset in this case was excluded from the operation of the Act by reason of s. 2(e)(iv) of the Act. (3) In order to fall within the definition of "net wealth" given in s. 2(m) of the Act the asset must be one which belonged to the assessee and could be dealt with or disposed of by him. (4) If the asset was such as could not be sold in the open market its capitalised value was nil for the purpose of the Act. To appreciate the argument raised it is necessary to refer to the relevant provisions of the WT Act. Under s. 2(c) "assessee" means a person by whom wealth-tax or any other sum of money is payable under the Act. Under s. 2(d) "assessment year" means the year for which tax is chargeable under s. 3. "Assets" have not been defined comprehensively in the Act, but under s. 2 (e) "asset" includes property of every description, movable or immovable, but does not include- "(i) agricultural land and growing crops, grass or standing trees on such land : (ii) any building owned or occupied by a cultivator or receiver of rent or revenue out of agricultural land ; (iii) animals ; (iv) a right to any annuity in any case where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant ; (v) any interest in property where the interest is available to an assessee for a period not exceeding six years." "Net wealth" under s. 2(m) means the amount by which the aggregate value computed in accordance with the provisions of the Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under the Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than,- (i) debts which under s. 6 are not to be taken into account ; and (ii) debts which are secur