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One Mrs. Bhikubai Chandulal Jalundhwala, a resident of Bombay, executed a will on January 5, 1962. She died three days after on January 8, 1962. During her life time she was possessed of considerable properties both movable and immovable. K.R. Patel, the appellant, and B.G. Amin, solicitor, since dead, were appointed as executors and trustees under the will. The executors and trustees under the will were directed first to pay all the debts, funeral, death and other testamentary expenses, estate duty, Government dues as soon as possible. Two immovable properties under the will were bequeathed to two different individuals. It was provided in the will that the executors and trustees should convey these immovable properties after obtaining probate of the will and until this was done to deal with the rents and income arising therefrom in the same manner as of other estate. The will also recited that the testator had during her life time gifted her one immovable property to K.R. Patel and under the will she provided for payment to him Rs.40,000/- for him to construct a floor on the said property. Testator also devised payment to each of her employees amounting to their respective six months salary.

"29. Public trust created by will.- In the case of the public trust which is created by a will, the executor of such will shall within one month on which the probate of the will is granted or within six months from the date of the testator's death whichever is earlier make an application for the registration in the manner provided in section 18 and the provisions of this Chapter shall mutatis mutandis apply to the registration of such trust:
Provided that the period prescribed herein for making an application for registration may, for sufficient cause, be extended by the Deputy or Assistant Charity Commissioner concerned."

In Commissioner of Income Tx, Tamil Nadu-II vs. Estate of Late A.V. Viswanatha Sastri [(1980) 121 ITR 270 (Madras)] the testator, a senior advocate practising in the Supreme Court, died. He executed a will by which he appointed his son as an executor of the will. The son filed returns in his capacity as an executor for certain years. During that period, however, he received various amounts which were professional fees payable to the deceased. He did not offer these amounts for assessment claiming that these professional fees were not liable to be taxed in his hands. His plea was negatived by the revenue being of the view that Section 176(4)of the Income Tax Act, 1961 specifically provided for taxability of the professional income received after discontinuance of the profession and included the arrears of the professional fees in the income earned from the estate of the deceased. The Court held that the arrears of fees realised by the executor will have to be taxed in his hands as a recipient in the year of receipt and brought to tax in the hands of the executor along with the income of the estate. The Court said that the legal fees due to the deceased on the date of death was one of the assets left by the deceased and would be part of his estate and realisation of the arrears would amount to recovery of part of the deceased's estate.

366. Residue after usual payments to be paid to residuary legatee.- The surplus or residue of the deceased's property, after payment of debts and legacies, shall be paid to the residuary legatee when any has been appointed by the will."

In the present case when we examine clause 20 of the will read with other clauses, it is apparent that the trust was to come into being only after funeral and other expenses met, legatees paid and properties converted into cash by the executors and trustees that administration of the estate would come to an end and all the amount thus lying with the executors and trustees would form the corpus of the trust. Functions of the trustees and executors as imposed upon them did not come to an end till February 1964 and it, therefore, cannot be said that there was any trust created under the will till that time. Section 168(3) of the Act makes it clear that executor will continue to be assessed until the estate is distributed among the beneficiaries according to their several interests.