Pathak, C. J. (Acting):- This batch of four cases are referred for the opinion of this Court under Section 256(1) of the In­come-Tax Act, 1961 (hereinafter referred to as 'the Act') at the instance of the Commissioner of Income-Tax, North Eastern Region, Shillong. The facts and the questions referred in all the four cases are identical and therefore we propose to dis­pose of these cases by a common judgment. The questions referred are as follows : (1) Whether, on the facts and in the circumstances of the case and on a proper construction of the relevant clauses of the Trust Deed dated 19.4. 1964, the Tribunal is right in holding that the trust created under the said deed is valid and not inconsistent with any of the provisions of the Indian Trusts Act, 1882? (2) Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the tran­sfer of the properties belonging to the Hindu Undivided Family made in favour of the trust by the major mem­bers of the family and also by the karta on behalf of himself and the minor members before there was any partition of the properties among the members of the family inter-se was not void and not forbidden by Hindu law? (3) Whether, on the facts and in the circumstances of the case, and having regard to the provisions of sections 161 and 164 of the Income-tax Act, 1961, the Tribunal is right in holding that the income from the trust properties has to be allocated among the beneficiaries according to-their respective shares and inclusion of the same in the total income of the Hindu Undivided Family is not justified? 2. As the facts in all the four cases are identical, although, the parties are different, we may refer only to the facts of the Income-tax Reference No. 3 of 1977. From the statement of the Income-tax Reference No. 3 of 1977, the following material facts emerge : Hindu Undivided family consisting of Shri Gangadhar Sikaria (Karta), his wife Smt. Sita Devi, his major son, Bhagawati Prasad Sikaria and his minor sons Santosh Kumar, Ramautar and Ashok Kumar, was the owner of the rice mill known as Shri Shankar Rice Mill, situate at Udalguri in the district of Darrang, Assam. The members of the H.U.F. viz. The members of the H.U.F. viz. (i) Sri Gangadhar Sikaria for himself and as the guardian of his minor sons, (2) Smt. Sitadevi Sikaria (wife) and (3) Bhagawati Prasad Sikaria (major son) for­med themselves into a partnership in the name and style of Shri Shankar Rice Mill under a registered partnership deed dated the 17th April 1959 for the purpose of carrying on the business of running the said mill and also a ridging machine under the name and style of Shri Ganga Industries at Gauhati. The joint family was also owning a building at Ulubari in Gauhati. Being desi­rous of creating a trust in respect of the aforementioned family properties, (1) Sri Gangadhar Sikaria on behalf of himself and as the natural guardian of his minor sons, (2) his wife Smt. Sita Devi Sikaria and (3) his eldest son Bhagawati Prasad Sikaria executed a registered trust deed dated 19-4-1964. By the said document the aforementioned settlers created a trust known as Gangadhar Sikaria Family Trust and continued themselves as the trustees of the said Trust. The family properties specified in schedules A, B and C appended to the deed had been transferred and assigned to the trustees to be held by them in trust for the personal benefit of the beneficiaries specified in the deed, namely Smt. Sita Devi Sikaria (wife of the karta), Sri Bhagawati Prasad Sikaria (major son of the karta) and the minor sons of the karta, namely, Santosh Kumar, Ramautar and Ashok Kumar and also for the benefit of the sons of the karta to be born thereafter equally in their individual capacity. It may be noted here that the karta is the only member of the H.U.F. excluded from the bene­fit of the trust and barring the karta all the other members of the H.U.F. are the beneficiaries of the Trust. It is provided in trust -deed that the partnership hitherto carrying on the business in the name and style of M/s. Shri Shankar Rice Mill at Udalguri and in the name and style of M/S. Ganga Industries at Gauhati shall cease to function and the said business shall belong to the trust with all its assets and liabilities as per books of account save and except the investment of capital in Sikaria Brothers in the name-of Gangadhar Sikaria and the taxation liabilities and other liabilities not appearing in the books of account. Clause 5 of the Trust Deed provides that the net income of the trust shall be divided equally among the beneficiaries, viz. Smt. Sita Devi Sikaria, Bhagawati Prasad Sikaria and the minor sons of Gangadhar Sikaria and that any son to be born to him after the commencement of the trust shall also be entitled to an equal share of the income of tin trust but in case of loss the same shall be borne equally by the major beneficiaries and the minor beneficiaries shall not be liable for the losses. For the assessment year under reference the Trust filed the return in respect of the income from the trust properties. The Income-tax Officer held the trust to be not valid for two rea­sons. One was that, so long as the joint family was not divided and the properties remained joint, it was not open to the karta and other members of the family to alienate the family properties by creating a trust or otherwise. Another was that Clause 5 of the Trust deed which provided for the minor beneficiaries not being liable for the losses, if any, and the losses being borne only by the major beneficiaries was inconsistent with the concept of a valid trust and violated the principles of the Trusts Act. Having held the trust to be not valid, the Income-tax Officer completed the assessment on the assessee as an Associa­tion of Persons as a protective measure. A copy of the assess­ment order forms part of the statement of the case as Annexure 'A'. On appeal by the assessee, the Appellate Assistant Commi­ssioner examined the validity of the Trust in the light of the provisions contained in Sections 5 and 6 of the Indian Trusts Act, 1832. Hs held that there was a valid transfer of trust proper­ties in favour of the trustees and that on the execution of tin Trust deed the trustees became the owners of the trust proper­ties and the income from the trust properties was liable to be assessed only in the hands of the trust. As regards the provi­sion in the Trust Died for the exclusion of the minor benefi­ciaries from the liability to share the losses, if any, the Appe­llate Assistant Commissioner held that there was no express pro­vision in the Trusts Act prohibiting exclusion of minor benefi­ciaries from such liability. As regards the provi­sion in the Trust Died for the exclusion of the minor benefi­ciaries from the liability to share the losses, if any, the Appe­llate Assistant Commissioner held that there was no express pro­vision in the Trusts Act prohibiting exclusion of minor benefi­ciaries from such liability. Holding the Trust to be a valid one, the Appellate Assistant Commissioner observed that the Income-tax Officer was not justified in making the assessment of the assessee trust on a protective basis. He accordingly directed the Income-tax Officer to make a fresh assessment on the assessee trust on a regular basis, treating it as a valid trust. A copy or the order of the Appellate Assistant Commissioner forms part of the statement of the case as Annexure 'B'. Aggrieved by the direction given by the Appellate Assistant Commissioner to make a fresh assessment on the assessee trust on a regular basis treating it as valid trust, the department pre­ferred one appeal before the Tribunal aggrieved by the action of the Appellate Assistant Commissioner in confirming certain additions and disallowance made by the Income-tax Officer in the assessment for the same assessment year, the assessee preferred another appeal before Tribunal. The Tribunal disposed of both the appeals of the assessee and the department by the common order dated 1.12.1975. Against this order of the Tribunal on an application made by the Department under Section 256 (1) of the Income-tax Act, the above questions are referred to this Court by the Tribunal for decision. 3. It was contended before the Tribunal by the learned counsel for the Department that the execution of the trust deed was a colourable transaction and the purpose of the trust in the present case was unlawful being forbidden by law and fraudu­lent and opposed to public policy and therefore not valid in view of section 4 of Act. 4. A pointed attack had been made on the provision of clause 5 of the trust deed, which provides for the minor bene­ficiaries not being liable for the losses, if any, and the losses being borne only the major beneficiaries, therefore such provi­sions is inconsistent with the concept of a valid trust and vio­lates the principles of trust deed. Both these contentions have been repelled by the Tribunal. Both these contentions have been repelled by the Tribunal. Regarding the first contention fine Tribunal held : "We are also not impressed with the argument of the learned counsel for the Department that the transfer of the joint family properties to the trust is forbidden by Hindu Law. An alienation of property belonging to a Hindu joint family otherwise than for a legal necessity or for the benefit of the estate is only voidable but not void. Such an alienation can be attacked only by the other members of the family who were not parties to the trans­fer as not binding upon them. It is not open to out­siders including Revenue to impugn the transfer as void or non est That apart, we fail to see how it can be said that the transfer of properties in the present case is not for the benefit of the estate. The transfer in the present case is merely in favour of the trustees, who are no other than the members of the family, to be held in trust for their own benefit. It is true that one member of the family (the karta) has been excluded from the benefit of the trust. The mere fact that the karta has renounced his right to a share in the income from the trust pro­perty while the trust is subsisting does not detract from the transfer of the properties to the trust being for the benefit of the estate. We, therefore, reject the conten­tion that the trust is illegal, being forbidden by Hindu Law and opposed to public policy and in fraud of the Revenue." Regarding the second contention the Tribunal held : "As regards clause 5 of the trust deed, we fail to see how it is inconsistent with the concept of a valid trust. We do not find any authority for the proposition enun­ciated by the learned counsel for the Department that the losses, if any, must be only on the trust account and must be carried forward to be adjusted against future profits of the trust and that it is not open to the settlor of the trust to provide for the apportionment of the losses among the beneficiaries or for the exclusion of the minor beneficiaries from liability to share the losses with the major beneficiaries. In our view, the stipulation made by the authors of the trust that the losses shall be borne by the major beneficiaries to the exclusion of the minor benefi­ciaries is not in any way inconsistent with the concept of a valid trust and does not offend any of the provi­sions of the Trust Act." However these contentions are not canvassed before us now. In order to appreciate the contentions raised on behalf of the parties it is apposite to set out the relevant portions of the trust deed which is marked as Annexure 'D' to the Paper Book. "THIS DEED OF TRUST made this 19th Day of April, 1964 BETWEEN Shri Gangadhar Sikaria son of Shri Kamakhya Prasad Sikaria for self and as natural guardian for the minor sons Santosh Kumar Sikaria, Ram Autar Sikaria, and Ashok Kumar Sikaria, Hindu Merchant of Gauhati in the State of Assam, hereinafter called the SETTLORS of the FIRST PART : Shrimati Sita Devi Sikaria wife of the said Gangadhar Sikaria of Gauhati in the State of Assam hereinafter called the SETTLOR of the SECOND PART : Bhagwati Prasad Sikaria son of the said Gangadhar Sikaria, Hindu merchant of Gauhati in the State of Assam hereinafter called the SETTLOR of the THIRD PART : WHEREAS Shri Gangadhar Sikaria as Karta of the Hindu Joint family consisting of self, his wife Sita Devi and his sons Bhagwati Prasad Sikaria, Santosh Kumar, Ramautar and Ashok Kumar was the owner and other­wise fully seized and possessed of the rice mill known as Shri Shankar Rice Mill situated at Udalguri in the district of Darrang (Assam) with all its lands, buildings, structures, godowns, chotals, compounds, plants, machinery and truck (T. M. B.) etc. AND WHEREAS Gangadhar Sikaria as Karta of the Hindu Joint family was carrying on business in partner­ship along with Sita Devi and Bhagwati Prasad Sikaria under the name and style of Sri Shankar Rice Mill at Udalguri as per Deed of Partnership registered on the 30th October, 1959 with the Sub-Registrar, Gauhati, with its Head Office at Gauhati and the said partnership owns a Ridging Machine under the name and style of Shri Ganga Industries at Murlidhar Sharma Road, Gauhati and the Joint family was also the owner of a building on Dr. B. Barua Road, Sarania, Ulubari in Gauhati. B. Barua Road, Sarania, Ulubari in Gauhati. NOW THIS DEED WITNESSETH that the settlors here­of being members of the said joint family and partners hereby transfer and assign the property in respect of the said rice mill and Shri Ganga Industries and the Joint family capital in the said partnership business and the building at Ulubari in Gauhati to the trustees hereof constituted to hold the same to the trustees upon trust and set apart the said rice mill property more particula­rly described in schedule 'A' and joint family capital in the partnership business of Sri Shankar Rice Mill and the Ridging Machinery of Shree Ganga Industries more particularly described in Schedule 'B' and the building at Ulubari in the town of Gauhati more particularly descri­bed in the Schedule 'C' hereto in trust for the personal-benefit of Sita Devi Sikaria, Bhagawati Prasad Sikaria and the minor sons of Gangadhar Sikaria in their indi­vidual capacity in the equal shares and have constituted themselves as the trustees for the time being subject to-the powers and provisions hereinafter expressed and decla­red. 3) Sri Gangadhar Sikaria, Smt. Sita Devi Sikaria and Shri Bhagawati Prasad Sikaria shall be the First Trustees of the Trust and the minor sons of the said Gangadhar Sikaria shall become trustees and when they attain majority. Any trustees any retire voluntarily by giving notice to the other trustees and in case of death or retirement-of any trustee, the property shall be held and managed by the remaining or surviving trustees for the time-being. (4) The rice mill known as Shree Shankar Rice Mill situated at Udalguri in the district of Darrang with all its lands, buildings, structures, godowns, compounds, chotals, plant, machinery and a T.M.B. Truck etc. more particu­larly described in the Schedule A hereunder, hereby becomes the property of the trust and vests in the trustees for the-time being. The partnership business hitherto carried on under the name and style of Shri Shankar Rice Mill at Udalguri with its Head Office at Gauhati and branch business at Gauhati in the name and style of Shree Ganga. Industries at Gauhati in the State of Assam, between. The partnership business hitherto carried on under the name and style of Shri Shankar Rice Mill at Udalguri with its Head Office at Gauhati and branch business at Gauhati in the name and style of Shree Ganga. Industries at Gauhati in the State of Assam, between. Gangadhar Sikaria, Sita Devi Sikaria and Bhagwati Prasad Sikaria shall cease to function as a partnership business and shall belong to the trust with all its assets liabilities-as per books of accounts save and except the investment of capital in Sikaria Brothers in the name of Gangadhar-Sikaria and the taxation liabilities and other liabilities not appearing in the books and accounts. The settlors hereby set apart the rice mill known as Sri Shankar Rice Mill situated at Udalguri in the district of Darrang, with alt its lands, buildings, structures, godowns, compounds, chotals, plant, machinery and a T.M.B. truck etc. more particularly described in the Schedule 'A' and the Ridging machinery in the name of Shree Ganga Industries at Gauhati more particularly described in Schedule 'B' hereunder and the building let out at Ulubari in the town of Gauhati more particularly described in Schedule 'C' hereunder in trust for the personal benefit of Sita Devi Sikaria and Bhagawati Prasad Sikaria and the minor sons of Gangadhar Sikaria already born or to be born hereafter equally in their in­dividual capacity. The individual capital of Sita Devi Sikaria and Bhagawati Prasad Sikaria and other members of the family in their individual capacity appearing in the books of the partnership business carried on under the name and style of Sri Sankar Rice Mill shall not belong to the trust but shall remain their individual property. Only the joint family capital invested in the business of Sri Shankar Rice Mill shall be likewise set apart in trust by this Deed. The residential house at Murlidhar Sharma Road, Gauhati and the joint family capital end share in the name of Karta Gangadhar Sikaria in the firm of Sikaria Bros, with its branch known as Kamrup Floor Mills at Dispur, Gauhati shall remain the undivided property of the Joint family. (5) The net income of the trust after adjustment of all expenses, loss or damage and depreciation etc. (5) The net income of the trust after adjustment of all expenses, loss or damage and depreciation etc. shall be divided equally amongst Sita Devi Sikaria, Bhagwati Prasad Sikaria and the minor sons of the said Gangadhar Sikaria in their individual capacity and any son born here­after to Gangadhar Sikaria shall also be entitled to an equal share of the income of the trust from the beginning of the next accounting year from the date of his birth in his individual capacity but in case of loss if any the same shall be borne equally by the major beneficiaries only excluding the minors. In the case of death of Sita Devi Sikaria her share of benefit shall vest in her sons equally. In case of death of any other beneficiaries his share of benefit shall vest in his heirs and successors or nominees. (6) The trustees shall hold property of the trust here­by set apart and any property representing the same in trust for the personal benefit of Sita Devi Sikaria and Bhagawati ­Prasad Sikaria and minor sons of the said Gangadhar Sikaria and any other son hereafter born to the said Gangadhar Sikaria in their individual capacity equally to the exclusion of the said Gangadhar Sikaria. 14) The trust shall cease on the attainment of majority of all the sons of Gangadhar Sikaria and on the sale of the property of the trust or as and when unanimously decided by all the trustees when the assets of the trust after meeting the liabilities shall be divided among the beneficiaries in equal shares." The above deed of trust is relatable to Income-tax Refere­nce No. 5 of 1978 also. So far Income-tax Reference No. 6 of 1977 and Income-tax Reference No. 11 of 1977 are concer­ned, there is another deed of trust dated 23rd of November 1964. This deed relates to another party. As the terms of the latter deed are similar to the one noticed above, we need not reproduce it here as same construction will appear. 5 Mr. G. K. Talukdar, the learned counsel appearing on behalf of the Department submits that the deed of trust is not in conformity with the Indian Trusts Act, 1882, hereinafter called 'the Act', and as such no valid trust was created by the trust deed. The reasons for the above contention are based on Sections 3 and 7 of the Act. G. K. Talukdar, the learned counsel appearing on behalf of the Department submits that the deed of trust is not in conformity with the Indian Trusts Act, 1882, hereinafter called 'the Act', and as such no valid trust was created by the trust deed. The reasons for the above contention are based on Sections 3 and 7 of the Act. The interpretation clause of trust found in Section 3 reads as follows : "A 'trust' is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another, or of another and the owner." The learned counsel submits that on a perusal of the trust deed it appears that the settlors including the minors are the owners of the Hindu undivided family property. They are the owners of the Hindu undivided family property as well as the partnership property Therefore as they are all owners of the property, there is none to take the benefit except the owners themselves. The Trust deed shows that Gangadhar Sikaria, Sita Devi Sikaria and Bhagawati Prasad Sikaria are all authors of the trust, trustees and also the beneficiaries in their individual capacity except Gangadhar Sikaria. The opening part of the trust deed shows that Gangadhar Sikaria on his own behalf and as natural guardian of the minor sons are the settlors. Therefore, according to the learned counsel the minors are also the settlors. But they are not trustees and they are only beneficiaries till the attainment of their majority. The learned counsel proceeds to submit that section 3 requires that the trust property must be for the benefit of 'another' or of "another" and "the owner''. It shows that the trustee i.e. the owner himself may be the bene­ficiary but along with him there must be 'another' in order to bring the trust in conformity with the provision of section 3 of the Act. The learned counsel submits that here even the minors were the settlors, therefore, all of them being the settlors, there is no 'another' person to derive- benefit out of the trust proper­ty. In support of his contetion the learned counsel refers to an illustration given in Underhill's Law of Trusts and Trustees Eleventh Edition at page 7. The learned counsel submits that here even the minors were the settlors, therefore, all of them being the settlors, there is no 'another' person to derive- benefit out of the trust proper­ty. In support of his contetion the learned counsel refers to an illustration given in Underhill's Law of Trusts and Trustees Eleventh Edition at page 7. The illustration reads : A, by deed, declares that he holds £ 1,000 government stock standing in his own name and belonging to him, instruct to pay the dividends to himself for life, and, after his death, upon trust to pay the dividends to his wife for life, and, after the death of the survivor of them, upon trust to sell the stock and divide the proceeds amon­gst, their children. Here A, is both creator of the trust, trustee, and one of the beneficiaries. If he were the sole beneficiary, the trust would never arise, for a man cannot enforce a trust against himself. Or, if he became such by surviving wife and children, and becoming the sole personal representative and next of kin of the latter, it would cease, because the trusteeship would merge and be extinguished in the beneficial ownership. 6. The learned counsel submits that here in this case also as the settlors including the minors were the authors of this trust and also the beneficiaries except Gangadhar, the trusteeship would merge and extinguish in the beneficial ownership. On the other hand, Dr. B. P. Saraf, the learned counsel appearing on behalf of the Respondent, submits that the real author of the trust is Gangadhar Sikaria, being the Karta of the Hindu Undi­vided family. Sit a Devi Sikaria and Bhagawati Prasad Sikaria also joined as the settlors of the trust as a measure of abundant caution, so that these persons later on cannot object. Mr. Talukdar counters the above submission of Dr. Saraf and contends that as some of the property of the partnership, namely, the Ridging machine under the name and style of Shree Ganga Industries also became the subject-matter of the trust, therefore, it was necessary for Sita Devi and B. P. Sikaria to become the settlors, they being the partners in the earlier partnership. We find that Mr. Talukdar has got some force in the conten­tion. We find that Mr. Talukdar has got some force in the conten­tion. Here in the trust deed not only H.U.F. property but also the partnership property, namely, the Ridging machine being the subject-matter of the trust, the inclusion of Sita Devi and B P. Sikaria along with Gangadhar Sikaria was essential to create the trust. Reading the trust deed we find that the minors in existence at the time of creation of the trust and also the minors to be born are made beneficiaries and none of the minors are trustees. Therefore, they do not own the trust property but they are only beneficiaries along with Sita Devi and B. P. Sikaria, who are trustees along with Gangadhar Sikaria. The presence of the minors in the trust deed as bene­ficiaries, in our opinion, is sufficient to bring the trust in con­formity with the provision of Section 3 of the Act. The minors answer the description of 'another' found in section 3 of the Act. 7. The precise contention of the learned counsel for the Department is that the deed of trust violates section 3, inasmuch as, according to him, the settlors, trustees and beneficiaries are all the same. We find that the aforesaid contention is not factually correct. The author of the trust is Shri Gangadhar Sikaria, the Karta, who is competent to alienate the property of the H.U.F. who has been joined by two other major mem­bers of the family, namely, Sita Devi and Bhagawati Prosad Sikaria. The aforesaid three persons are also trustees. The beneficiaries are two of the trustees, namely, Sita Devi and Bhagawati Prosad Sikaria and all minor sons of Gangadhar Sikaria. Gangadhar Sikaria, the Karta is not the beneficiary. It is now clear that the "owners" namely trustees and the beneficiaries are not the same. The minors are the beneficiaries who are not trustees i.e. the owners. Under the deed of trust every minor on attaining the majority becomes trustee. Under clause 14 of the Trust Deed, on the event of all the minors attaining majority the trust will cease to operate. At this stage only the owners and the beneficiaries will become the same and the trusteeship would merge and extinguish in beneficial ownership. Till that event happens the trusteeship and the be­neficial ownership remained distinct and the trust can be enforced against the trustees by the beneficiaries. At this stage only the owners and the beneficiaries will become the same and the trusteeship would merge and extinguish in beneficial ownership. Till that event happens the trusteeship and the be­neficial ownership remained distinct and the trust can be enforced against the trustees by the beneficiaries. It is, there­fore, clear that the deed of trust in question is not violative of Section 3 of the Act. The trust created by the aforesaid deed is, therefore, valid and legal. In our opinion, the conten­tion raised on behalf of the Department is not at all tenable. Section 7 of the Act reads as follows :- "7. A trust may be created- (a) by every person competent to contract, and, (b) with the permission of a principal civil court of original jurisdiction by or on behalf of a minor ; but subject in each case to the law for the time being in force as to the circumstances and extent in and to which the author of the trust may dispose of the trust-property." (emphasis supplied). Mr. Talukdar submits that as the creation of the present trust involves the property of the minors it could not be com­petently created unless there was permission of a principal civil court of original jurisdiction obtained by or on behalf of the minors. It is submitted that there is a specific bar to make any trust in respect of the minor's property without the permission of the Court. On reading the section we find that to clause (b) to sec­tion 7 an exception has been engrafted to the aforesaid barring provi­sion, namely that the creation of the trust is subject to the law for the time being in force. Here in this case the parties are governed by Mitakshara School of Hindu Law. Here Gangadhar Sikaria, the Karta of the family has settled in trust the Hindu Undivided family property in which the minors have interest. Under the pure Hindu Law, the natural guardian as the Karta of the family had the unfettered tight to alienate the joint family pro­perty for legal necessity and for the benefit of the estate or the family. Now the pure Hindu Law has, in this context, been somewhat amended by the enactment of the Hindu Min­ority and Guardianship Act, 1956. Under the pure Hindu Law, the natural guardian as the Karta of the family had the unfettered tight to alienate the joint family pro­perty for legal necessity and for the benefit of the estate or the family. Now the pure Hindu Law has, in this context, been somewhat amended by the enactment of the Hindu Min­ority and Guardianship Act, 1956. Sub-section (2) of Section 8 of this Act provides that the natural guardian shall not, without the previous permission of the Court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor...............Sub-section (3) of Section 8 provides that any disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub­section (2), will be voidable at the instance of the minor or any person claiming under him. This provision shows that the alie­nation here in this settlement of the Trust including the interest of the minor is only voidable at the instance of the minor or anybody claiming under him. That being the position of law, we find that the settlement of the H. U. F. property including the interest of the minors, does not become void ab-initio or non est. If a Karta alienates the property of H.U.F. including the interest of the minors for the benefit of the estate or for legal necessity such alienation is valid. The Tribunal has recorded a finding that the settlement of the trust property is for the bene­fit of the estate, Dr. B. P. Saraf the learned counsel for the assessee submits that the contention sought to be raised by the Department that there is no valid alienation cannot be agitated now in view of the finding of the Tribunal that the alienation was for the benefit of the estate. Even if otherwise such alie­nation by the Karta in respect of the H. U. F. including the interest of the minor is only voidable and not void. Even if the transfer is not for the legal necessity and for the benefit of the estate the transfer by the Karta will be only voidable. Hence the contention raised now that the Tribunal has not given any reason for coming to the finding that the settlement of the trust is for the benefit of the estate is of no substance. Hence the contention raised now that the Tribunal has not given any reason for coming to the finding that the settlement of the trust is for the benefit of the estate is of no substance. In paragraph 242 of Mulla's Hidu law, Fourteenth Edition, it has been stated that an alienation by the manager of a joint family made without legal necessity is not void, but voidable, at the option of the other coparceners. They may affirm it or they may repudiate it, but a creditor cannot repudiate it, there being no suggestion that it was in fraud of creditors. In Raghubanchmani Prasad Narain Singh vs. Ambica Prasad Singh, AIR 1911 SC 776, their Lordships of the Supreme Court has ruled that alienation by manager of Joint Hindu family even without legal necessity is voidable and not void. We also find a similar view to have taken in Commissioner of Income-tax, New Delhi vs. Braham Dutt Bahrgava, 46 ITR page 387, where a Division Beach of the Rajasthan High Court at Jodhpur, held on a review of the legal position the following two broad propositions ; (1) That a gift by the manager of a joint Hindu family of the family property, at any rate to a member or members thereof is only voidable and not void ab-initio; (2) that such a gift can be attacked only by the mem­bers of the family whose interests are affected thereby and not by strangers. 8. In the above view of the legal position we hold that the Tribunal correctly decided the question as posed in Question Nos. 1 and 2 that the trust is valid one and also that the settlement of the trust property was legally made. 9. With regard to the question No. 3 it has been conten­ded by the learned counsel for the Department that having regard to the provisions of Sections 161 and 164 of the Income-tax Act, the Tribunal was not right in holding that the income from the trust has to be allocated among the beneficiaries according to their respective shares and inclusion of the same in the total income of the H.U.F. was not justified. We have given our anxious consideration to the argument advanced by the learned counsel. We have given our anxious consideration to the argument advanced by the learned counsel. The assessment in the instant case in respect of the very same income was made by the Income-tax Officer in the hands of two persons, namely, the trust, which is the petitioner before us "on protective basis” and the H.U.F. "on regular basis". This double assessment in respect of the very same in­come was made as a protective measure. It was done because the trust had submitted return showing the income which accor­ding to the Income-tax Officer was assessable in the hands of the H.U.E. to which the property belonged prior to the crea­tion of the trust and as in his opinion the trust was not a valid trust. On appeal, the Assistant Appellate Commissioner held that the trust was a valid trust and the income in question was assessable in the hands of the trust. The decision of the Appellate Assist­ant Commissioner was affirmed by the Tribunal also. The Tri­bunal having found that there was a valid trust held that the income from the property of the trust can be assessed only in the hands of the trust and not in the hands of the H.U.F. The dispute in regard to the person who should have been taxed in respect of the income from the properties which was the subject matter of the trust having been resolved by the Tribunal we do not find anything wrong in this action of the Tribunal Once the Tribunal held that there was a valid trust and that the income in question was assessable in the hands of the trust, it was obligatory on the part of the Tribunal to say that the income was not assessable in the hands of the H.U.F. Moreover, it was also necessary for the Tribunal while disposing of the appeal to give a decision in regard to the manner of the assessment of the trust. In the instant case the Tribunal having found the trust to be valid held as follows :- "We may, incidentally, point out that, whether the trust is valid or not, the assessment could only be made as on an association of persons, the number of trustees being more than one. The action of the I.T.O. in making the assessment on an association of persons is therefore, un­exceptionable. The action of the I.T.O. in making the assessment on an association of persons is therefore, un­exceptionable. We have been told that the assessment of the H.U.F. was made by the Income-tax Officer for the same assessment year including in its total income, the income from the trust properties and that in the appeal by the H.U.F. the Appellate Assistant Commissioner excluded the income from the trust properties from the total income of H.U.F. since he was of the view that the trust was a, valid one and the income from the trust properties should be assessed only in the hands of the Trust on a regular basis but not on a protective basis. Since we too hold that the trust is a valid one it follows as a logical cor­ollary that there is no justification for making the assess­ment on the trust on a protective basis. In view of own finding, the income from the trust properties has to be allocated among the beneficiaries according to their respe­ctive share and the inclusion of the same in the total income of the H.U.F. is not justified." The aforesaid finding is in no way contrary to or inconsistent with the provisions of Section 161 or Section 164 of the Income-tax Act, 1961. Section 160 of the Income-tax Act which enumerates the categories of the representative assesses who are assessable in respect of the income of the beneficiaries which belong to other person, specifically includes a trustee appointed under a trust declared by a duly executed instrument in writing. In Section 161 the liability of the representative assessee is confined to the income in respect of which such person is representative assessee. The assessment on a representative assessee under Section 161 is separate and distinct from his personal assessment. Every repre­sentative assessee is liable to tax under Section 161 "in like manner and to the same extent" as the persons beneficially entitled to the income. The liability of the trustee under Section 161 Is co-extensive with that of the beneficiary, the interposi­tion of the trustee for the purpose of assessment does not affect the incidence of tax on the beneficiary. The liability of the trustee under Section 161 Is co-extensive with that of the beneficiary, the interposi­tion of the trustee for the purpose of assessment does not affect the incidence of tax on the beneficiary. Since the tax has to be levied on the representative assessee, the trustee, in the like manner and to the same extent as it would be leviable upon the person specifically entitled to the income, in a case like the present one where the several persons are beneficially entitled to the income, the assessment on the representative assessee should be at the individual rates of tax calculated separately to the total income of each beneficiary. Thus the basis of assessment on the representative assessee is laid down in Section 161(1). The tax should be levied upon the representative assessee in the like manner and to the same extent as it would be leviable upon the beneficiaries. In Sec­tion 164 exceptional cases where the above basis of assessment is not available, are specified. The exception relevant for the purpose of such case is one where the Individual shares of the beneficiaries are indeterminate or unknown. If a case falls under Section 164, the tax is leviable and recoverable from the representative assessee in the manner laid down in Section 164. We may illustrate thus :- If the instrument of trust does not define a specific and individual shares of the beneficiaries, the trustees would be assessable at the rate appropriate to the total income of the trust. It is, however, open to the Department even in such cases of assessing the trustees not at the appropriate rate but at the rate applicable to the total income of the beneficiaries who actually receive the that income, if such course would result in any benefit to the revenue. 10. The legal position contained in sections 160, 161 and 364 of the income-tax Act is absolutely clear. In the instant case the property was being held under trust by three trustees, namely, Gangadhar Sikaria, Sita Devi Sikaria and Bhagawati Prosad Sikaria for the benefit of the beneficiaries mentioned in the trust. The beneficiaries are two of the trustees who are Sita Devi and Bhagawati Prosad Sikaria and the minor sons of Gangadhar Sikaria. The shares of these beneficiaries are equal. The beneficiaries are two of the trustees who are Sita Devi and Bhagawati Prosad Sikaria and the minor sons of Gangadhar Sikaria. The shares of these beneficiaries are equal. Thus in the present case the beneficiaries and the individual shares of the beneficiaries are determinate and known and as each section 164 of the Act has no application to the facts of the present case. The only section applicable for the assessment of the income of the trust remains to be section 16½ of the Act. The total number of trustees being more than one, they are assessable as an association of persons but the tax must be levied on them under Section 161 to the same extent as it would be leviable upon the beneficiaries. In the instant case there being several persons beneficially entitled to the in­come with well defined shares, the assessment of the represen­tative assessee can be made only at the individual rates of tax applicable separately to the total income of each beneficiary. 11. In view of the aforesaid legal position, under the facts and circumstances of the case the Tribunal was right in holding that the income from the trust property has to be allocated among the beneficiaries according to their respective shares and inclusion of the same in the total income of the Hindu Undivi­ded family is not justified. 12. In these circumstances and for the reasons mentioned above, our answers to the three questions referred to us are in the affirmative, in favour of the assessee and against the Department. For the same reason, we also answer all the three ques­tions referred in each of the Income-tax Reference No. 5 of 1978, Income-tax Reference No. 6 of 1977 and Income-tax Re­ference No. 11 of 1977 in the affirmative in favour of the assessee and against the Department. The petitioner shall pay to the Respondent- Assessee one set of cost which we assess at Rs. 200/-.