CONTROLLER OF ESTATE DUTY, MADRAS v. PARV ATill AMMAL

The matter arises out of the estate duty case of Shri R. Venkates wara Iyer who died on April 6, 1957. The respondent, Smt. Parvathi Ammal who is the widow of the deceased and is an accountable person in the case, filed· statement relating to the estate of the deceased before the Assistant Controller of Estate Duty. The Assistant Con troller determined the principal valne of the estate to be Rs. 2,50,374. In computing the principal .. value the Assistant Controller into account a sum of Rs. 1,50,000 on account of the value of pro perty known as "Mayavaram Lodge". The Assistant Controller found that till March 11, 1955 the de- eeased, who was 11 self-made man, owned .two buildings, including Mayavaram Lodge, besides some agricultural land. The deceased was carrying on the business of boarding and lodging in Mayavaram Lodge. He had also a small chit business. On March 11, 1955 the deceased executed. a document described as a partition deed, whereby he gave "Mayavaram Lodge" to his five sons in equal shares and retained for himself the other house and agricultural land.

On June 25, 1955 the deceased entered into an agreement with his sons by which they leased to the deceased Mayavaram Lodge wherein as before he continued to carry on his boarding and lodging business. In the profit and loss account a sum of Rs. 15,000 was mentioned • for payment of rent of Mayavaram Lodge. Later on, the deceased gave the boarding house on sub-lease to a third party. The respondent claimed that Mayavaram Lodge should be exclud ed from the estate duty assessment of the deceased on the gro:und that the said property was transferred on March 11, 1955 more than two years before his death. It was urged that the fact that the sons let out the building to the deceased should not be taken to be a special benefit derived by the deceased. The respondent also pointed out that Mayavaram Lodge was taken on lease long after the original transfer and the lease and the transfer could not be treated as asso ciated transactions.

Plea was also taken that the document of March 11, 1955 constituted deed of partjtion of joint family properties. c D E F G H 13-L319Sup.CT/75 688 SUPREME COURT REPORTS [1975] 2 s.c.R. The Assistant Controller rejected these contentions. He that the property referred to in the deed dated March 11, 1955 w~ the sel~acqu.ired property of the deceased and that there was no evi dence to show that the deceased treated it as joint family proP4:rty. He accordingly held that the deed, though described as a partition deed should be treated as a settlement. Although se1tlement was found to have been made by the deceased more than two years before his death the fact that the deceased took back the property therein from his sons ;horfly thereafter to continue his business showed, in the opinion of the Assistant Controll7r, that the decei~ got a direct benefit in the property. The Assistant Con!toller m this context referred to the fact that there was not much mterval of the settlement and lease and that the payment of rent time betwee1 was not in c: sh but by book entries.

The Assistant ControJer accord ingly held th 1t Mayavaram Lodge was liable to be taken into account for assessin~ the estate duty. He accordingly included a sum of Rs. 1,50,000 on that account. The resp mdent preferred an appeal to the Board of Direct Taxes against the oder of the Assistant Controller. The only ground which was pressed before the Board related to the inclusion of the value of Mayavara n Lodge. It was urged on behalf of the respondent that the prop :rty owned by the deceased became the joint family pro perty and th2 t the deed of March 11, 1955 was a partition deed. In the altemativ :, it was urged on behalf of the respondent that eyen if the deed d March. 11, 1955 was a deed of settlement and not of partition, the value of Mayavaram Lodge ought not to have br-en included inru much as the deceased had tra!ijiferred his right, title and interest n the above property more than two years prior to his death.

The 3oard found that the deed, though executed on March 11, 1955 me re than twq years prior to the death of the deceased, was registere< only on June 29, 1955. According to the Board, the gift of Maya"aram Lodge became effective only on June 29. 1955 viz.! the date of registration. As that date fell within the. statutorY period of tw< years before the death of the deceased, the Assistant Controller wa ; held to be justified in view of section 9 of the Act in including he value of Mayavaram Lodge in the prinCipal value In the alternative. the oBard found of the estate of the deceased.. that the dece< sed continued to be in undisputed possession of Maya the donor had not been excluded varam Lodge. from the enjc yment and possession of the property and. therefore, estate duty w; s payable in respect of that property under section XO of the Act. ' 'he Board rejected the contention that the document -of March 11, 1955 constituted partition deed.

The appeal of the respondent w~ ; accordingly dismissed. On being moved by the res pondent the B iard referred the question reproduced above to the High Court. It was held that A B c D E F G The High :::ourt held that the subject matter of allotment to the sons by .the d ed of .March 11, 1955 was the entirety of Mayavaram Lod_ge with al. the rights that could possibly go into it and that the allotment was not subject to any claim to or right in that property. H CONJ'.ROLLER ESTATE DUTY v. PARVATHI (Khanna, J.) 689 It was also held that on the execution of the deed the sons had assumed possession and enjoyment of the entirety of the house. The High Court then referred to its earlier decision in V. S. Mani v. Controller of Estate Duty(') wherein it had held that to the extent to which the donor retains an interest in the entirety of the property given away by him as gift, there will be pro tanto liability to estate duty.

It ·was further observed by the High Court as under : "Mayavaram Lodge was certainly a bundle of rights of which possession and enjoyment formed a part which as we have observed, were not subsequently to their assumption retained by the sons of the deceased. To that extent, there was non-exclusion of thei deceased. So far as the ownership of the property is concerned, there can be no question that the donees exclusively retained it. It follows that it is only the value of the right to possession and enjoyment in the hands of the deceased as a lessee that would pass on his death and would attract duty. For the Revenue it is urged that the entire premises being in the occupation and en.ioy ment of the deceased until his death, its entire value would pass. We are unable to accsde to this view because it does not take note of the value of the other rights of the donees including the onwership of the property, which they retain ed to the exclusion of the deceased.

Since we have held that only to the extent of the non-exclusion mentioned· the proportionate property referable to it would pass, it would be necessary for the Revenue to apportion its value taking all the facts into account and revise the assessment. That is sufficient to dispose of the reference. In view of this, we do not think it necessary to deal with the o•her point as fo whether the transaction of March 11, 1955, amounted to a gift. We have proceeded on the basis that it was a gift. The question is answered partly in favour of the Re venue and partly in favour of the assessee. This is because~ on the view we have expressed, the Revenue cannot charge estate duty on the entire value of the property, while at the same time the accountable person cannot . ~ape duty to the extent of the non-exclusion we have indicated. " In appeal before us Mr. Ahuja· on behalf of the appellant has assailed the judgment and reasoning of the High Court and has to the deed of March 11, 1955, which 'On.tended that as subsequent as observed by the High Court would have to be assumed to be a· deed of gift, the donor took the gifted property on lease, the · donees cannot be said to have retairaed possession of that property "to entire exclusion of the donor ·or of any benefit to him bv contract or otherwise".

As against that Mr. Swaminathan on behalf of the respondent has canvassed for the correctness of the view taken by the High Court. (i){t966] 60'T.T. R. 810. .B c F H 690 SUPREME COURT REPORTS (1975] 2 s.c.R. Before dea ing with the contention of the parties, we may refer to the relevan1 provisions of the Act. According to section 2 ( 16), "property pass ag on the death" includes property passing either im. med1atel y on t te death or after any interval, either certainly or coD1- tin, gently, and :ither originally or by way of substitutive limitation. Section 5 cont ins the charging provision, and provides that "in th1~ case of every I ~rson dying after the commencement of this Act, tltere shall, save as l ~reinafter expressly provided, be levied and paid upon the principal w ,ue ascertained as hereinafter provided, of all property, settled or not 1ettled, including a<""i ·~-~ra, land ...... which passe1; on the death c: such person,·~ ,·~ ..:•.uled "estate duty" at the rates fixed in accord mce with section 35".

According to section 6, pro perty which th1 deceased was at the time of his death CO!llpetent to dispose of shall be deemed to pass on his death. Sub-section ( 1) of section 7 of tl e Act provide~ that subject to the provisions of that section, propert / in which the deceased or any other person had an interest ceasing on the death of the deceased shall be deemed to pass OIJ the de.cease1 .'s death to the extent to which a benefit accrues or arises by the Cl aser Of such interest, including in particular, a Copar-· cenary interest . n the joint family property of a Hindu family govern-· ed by the Mi akshara, Marumakkattayam or Aliyasantana law. According to s ction 9, property taken under a disoosi'ion made by the deceased p• rporting to operate as an immediate gift imer vivos whether by wa~ of transfer, delivery, declaration of trust, settlement upon persons ii succession, or otherwise, which shall not have been bona fiLle made two years or more before the death of the deceased shall be deeme1 to pass on the death : Provided that in the case of gifts made f >r public charitable purposes the period shall be six months.

Sectio t 10 of the Act reads as under : "10. G fts whenever made where donor not entirely excluded.- Property taken under any gift, whenever made, shall be de :med to pass on the donor's death to the extent that bona . ;ide possession and enjoyment of it was not im mediately a ;sumed by the donee and thenceforward retainC<! to the entir: exclusion of the donor or of any benefit to him by contrac1 or otherwise : · Provide l that the property shall not be deemed to pas~ by reason c nly that it was not, as from the date of the gift, exclusively rctai·aed as aforesaid, if, by means of the sur render 04' t ;e reserved benefit or otherwise it is subseauent ly enjoyed 'to the entire exclusion of the' donor or of any benefit to l im for at least two years before the death. P~ovide1 further that a house or part thereof taken under any gift ma1 e to the spouse, son, daughter, brother or sister, shall not be deemed to pass on the donor's death by reason ~nly of the residence therein of the donor exceot wliere a ~1gh.t of res dence therein is reserved or secured directly or the donor under the relevant disposition or l.IldJrectly t< under any C< llateral disposition.

" A B c D E F G H CONTROLLER ESTATE DUTY v. PARVATHI (Khanna, J.) 691 It may be mentioned that the l?eriod "tW<? years" in sub-s~ction ( 1 ) of section 9 and the first proviso to section 10 was substituted for "one year" by the Finance Act, 1966 (Act 13 of 1966). The second proviso to section 10 was inserted by the Finance Act, 1965 (Act 10 of 1965). The amendment brought about by the Finance Act, 1965 by insert ing second proviso to section 10, as observed by this Court in the cas·~ of George Da Costa v. Controller of Estate Duty, Mysore(:1), was not retrospective. The said section would consequently have to be cons trued for the purpose of this case which relates to the estate of the deceased who died on April 6, 1957, as it stood before the amendment. c 0 E G II The intention of the· legislature in enacting section 10 of the Act was to exclude from liability to estate duty certain categories of gifts. rA gift of immovable property under section 10 will, however, be dutiable unless the donee assumes immediate. yxclusive and bona fide possession and enjoyment of the subject-matter of the gift, and there is no beneficial interest reserved to the donor by contract or otherwise.

The section mus( be grammatically construed as follows : "Property taken under any gift, whenever made, of which property bona fide possession and enjoyment shall not have been assumed by the donee immediately upon the gift, and of which property bona fide posses sion and enjoyment shall not have been thenceforward retained by the donee to the entire exclusion of the donor from such possession and enioyment, or of anv benefit to him, bv contract or otherwise". The crux of the section lies in two parts : (1) the donee must bona fide have assumed possession arid enjoyment of the property, which is the subiect-matter of the gift, to the exclusion of the donor. immediate ly upon the gift, and (2) the donee must have retained such possession and enjoyment of the property to the entire exclu<i0n of the donor or of any benefit to him, by contract or otherwise. Both these conditions are cumulative.

Unless each of these conditions is sati<fied, the oro perty would be liable to estate duty under section 10 of the Act (see George Da Costa v. Controller of Estate Duty Mysore, supra). · The second part of the section, as observed in the above men tioned C'ase, has two limbs : the deceased must be entirely excluded, ( D from the property and (ii') from any benefit by contract or other wise. The word "otherwise" should be consfrued ejusdem generis and should be interpreted to mean some kind of legal obligation or some transaction enforceable at law or "in equity which though not in the form of a contract. may confer a benefit on the donor. The words "by contract or otherwise" in the second limb of the section do not control the words "to the entire exclusion of the donor'' in the first limb. In order to attract this section, it is consequent!v not necessary that the possession of the donor of the gifted property must be referable· to some contractual or other arrangement enforceable. ~t law or in equity.

Ev·~n if the donor is content to rely upon mere filial affection of his sons with a view to enable him to continue to reside in the house, it cannot be said that he was "entirely excluded (I) (1967] 63 T.T.R. 497. 692 SUPREME COURT REPORTS (1975) 2 S.C.R. from possession and enjoyment" within the meaning of the first limb of the section and, therefore, the property will be deemed to pass on the death of the donor and will be subject to levy of estate duty. The object underlying a provision like section 1 O of the Act was explained by Issacs J. in the case of John Lang & Ors. v. Thomas Prout Webb ( 1 ) decided by the High Court of Australia in 1912 in the following words : "The owner of property desiring to make a gift of it to another may do so in any manner known to the law. Ap parent gifts may be genuine, or colourable, and experience has shown that frequently the process of ascertaining their genuineness is attended with delay, expense and uncertainty -all of which are extremely embarrassing from a public revenue standpoint.

With a view to avoiding this inconvenience, the legisla ture has fixed two standards, both of them consistent with actual genuineness, but primtt f acie indicating a colourable attempt to escape probate duty. One is the standard of tent with the gift. . The prima f acie view is made by twelve months before the donor's death is for the purpose of duty regarded as not made. The other is conduct which at first sight and in the absence of explanation is inconsis tent witn the gift. The prima facie view is made by legislature conclusive. transaction choose to act so as to be in apparent conflict with its purt port, they are to be held to their conduct. If the parties to the The validity of the transaction itself is left untouched, because it concerns themselves alone. But they are not to embarrass the public treasury by equivocal acts. " A B c E The court in that case was co, ncemed with the COl}Struction of section 11 of the Administration and Probate Act, 1903 which wads as ·under : F "Every conveyance or assignment gift delivery or trans fer of any estate real or personal and whether made ~efore or after the conmmencement of this Act, purportmg to operate as an immediate gift inter vivas whether .bY way of transfer delivery declarntion of trust or otherwtse shall- ( a) if made within twelve months immediately preceding the death of the person so dying; or (b) if made at any time relating to any property of whicn property bona fide passession and enjoyment shall not have been assumed bv the donee imme diately upon the gift and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise - - - - - 13 C.L.R. 593.

G H CONTROLLER ESTATE DUTY v. PARVATHI (Khanna,!.) 693 be deemed to have been made the property to which the same relates chargeable with the payment of the duty payable under the Administration and Probate Acts as though part of the estate of the donor. " In that case a testarix was the owner in fee of land in her actual posse.ssion and enjoyment, which she worked as a single property. More than twelve months before her death she gave to her three sons blocks of this land each of which was surrounded by other land of the testarix. The gift was made by conNeyances of so much of the land as was under the general law, and by transfers of so much of it as was under the Transfer of Land Acts. On the same day upon which the conveyance and transfers were executed, each of the sons executed a lease. for five years of the land given to him to the testarix at fair and reasonable rent. After the gifts the lands given continued to be in the actual physical occupation of the testarix and to be worked by her with her other land in the same way as before It was the gifts.

The testarix died before expiration of the leases. lield that the land so given was chargeable with the payment of the duty payable under the Administration and Probate Acts as though part of the estate of the testarix. Issacs J. in this context observed : "The lease, however, gave to the donor possession and enjoyment of the land itself, which is a simple negation of exclusion, and brings the case within the statutory liability. It was argued that as the rent was full value, the lessee's possession and occupation were not a benefit. The argu ment is unimportant because the lease, at whatsoever rent, prevents the entire exclusion of the donor. " A B c D E The above reasoning of Issacs J. was approved by the Judicial Com mittee in the case of Clifford John Chick & Anr. v. Commissioner of Stamir1 Duties( 1) wherein the judicial Committee dealt with a case under section 102 of the New South Wales Stamp Duties Act, 1920- 56.

The aforesaid section provided that "for the purposes Of assessment and payment of death duty but subiect as hereinafter pro vided the estate of a deceased person shall be deemed to include and consist of the following classes of property : .... (2) (d) Any pro, perty comprised in any trlft made by the deceased at anv time, whether before or after the passing of this Act of which bona fide possession and enioyment has not been assumed bv the donee immediatelv uT10n the gift and thencefort'1 retained to the entire exclusion of the dee-eased or of any benefit to him of whatsoever kind or in any way whatso ever whether enforci!able at law or in equitv or not and whenever the d~ased died. " In that case a. father transferred in 1934 by way of gift to one of his sons pastoral proDCrty. The l!ift was made without In 193~. some 17 months re.~ervation· or Qualification or condition. after the gift, the father, the donee son and another son entered into an :'ll!l'Ci'Ornent to carrv on· in partners'1io the busine~s of grazlers and inter alia, that the father stock dealers: The agreement · provided, F G H (I) (1958] A. C. 435. - 1) 94 SUP.REME COURT REPORTS [1975] 2 s.c.R. should be the manager of the business imd that his decision should be final and conclusive in r.onnection with all matters relating to its con duct; that the capital of the business should consist of the livestocks and plant then owned by the respective partners; that the buiiiness should be conducted on the respective holdings of the partners and such holdings should be used for the purp.oses of the partnership only; that all lands held by any of the partners on the date of the agr.eement should be conducted on the respective holdings of the partners and any consideration be taken into account as or deemed to be an asset of the partnership, and any such partner should have the sole and free light to deal with it as he might think fit.

Each of the three part- ners owned a property, that of the donee son being that which had been given to him by hi.s father in 1934. Each partner brought into the partnership livestock and plant, and their three properties were thenceforth used for thi: depasturing of the partnership stock. This arrangement continued up to the death of the father in 1952. It was held that the value of the property given to the son in 1934 was be included in computing the value of the father's estate for the pur- poses of d~ath duty. While it was not disputed that the son had assumed bona fide possession and enjoyment of the property mediately upon the gift to the entire exclusion of the fa•her, it was found that he had not thenceforth retained it to the father's entire exclusion, for under the partnership agreement the partners and each of them were in possession and enjoyment of the property so long as the partnership subsisted.

The Judicial Committee hold that where the question is whether the donor has been entirely excluded from the subject-matter of the gift, that is the single fact to be determined, and, if he has not been so excluded, the eye need look no further to ~ whether his non-exclusion has been advantageous or otherwise to the donee. In the opinion of the Judicial Committee, it was irrelevant that the father gave full consideration for his rights as a member of the partnership to possession and enjoyment of the property that he had given to his son. Sir Garfield Barwick (as he then was), who was the counsel for the appellant in that case, pointed out that on respondent's oonstruction, if a father gave a house to his son, and later the son turned it into a hospital, and the father, havin!! been taken ill, went into it as a paying patient, liability to duty would arise although it may be the only hospital in the area.

The case, however in view of the language of the statute was decided in favour of th~ Commissioner of Stamp Duties, who was the respondent in the case. The following six points emerge from Chick's case : (1) The deceased was not in fact excluded property, but as a partner enjoyed rights over it. (2) There was an initial outright gift of the property-not of the property shorn of certain rights. (3) It wa~ immaterial that the partnership agreement was later than the ¢ft, since the Section required that possession and enjoyment should "thenceforth" be retained to the exclusion of the donor. A B c D E F G H CONTROLLER ESTATE DUTY v. PARVATHI (Khanna, J.) 6 95 ( 4) Jt was also immaterial that the partnership was "an indeP,endent commercial transaction," and that the donor aave full consideration .for his rights. If a donor gives a donee a freehold and the donee gives the donor a lease, even at a full rent, the donor not excluded from the property.

(5) The question whether the partnership agreement was "related" or "referable" to the gift did not arise : the question is ·relevant only to the second limb of the clause. ( 6) It was immaterial that the donee could make no better use of the property .. "Where the question whether the donor has been entirely excluded from the subject matter of the gift that is the single fact to J>e determined. If he' has not been so excluded, the eye need look no further to see whether this non exclusion has been advantageous or otherwise to the donee. " (see p. 276 of Dymond's Death Duties, 14th Ed.) So far as point No. ( 4) is concerned,· the law was subsequently amended by section 35(2) of the Finance Act, 1959. Under clause, the donor's actual occupation of the land, enjoyment of an incorporeal right over the. land or possession of the chattels is to be disre2arded if for fuU consideration, e.g., if he paid a full rent to the donee or occupied it under a lease for which he gave full value.

There is one other principle and that relates to gift of property shorn of certain rights belonging to the partnership donor is a partner. In such a case the benefit remaininl! in the donor is referable to the partnership agreement and not to the gift. This principle can be illustrated by reference to two cases, one decided by the Judicial Committee iri 1933 and the other bv this Court 1973. The Judicial Committee's· decision is in the case of H. R. Mu11ro · & Ors. v. Commissioner of Stamp Duties,'(I) while that of this COurt is in. the case of Controller of Estate v·uty Madras v. C. R. Rama· Chandra Gounder. (2) in· which · In the case of H. R. Munro M who was the owner ·of 35.000 acres of land in New South Wales on which he carried on the busi ness of a grazier, verbally agreed with his six children after the business should be carried on by him and them as partners under a partnership at will.

The business was .to be managed solely by M and each partner was to receive a specified share of the profits. registered In 1913. M transferred by way of gift by means of six deeds all his right title and interest in the portions of his lanc) . to each of his four sons and to trustees for each of his two daughters and (1) [1934] A. C. 61. (2) [1973) 88 T.T.R. 448. A B c D E F G H 696 SUPREME COURT REPORTS [1975] 2 s.c.F .. their children. The transfers were taken subject to the partnership agr~ement, and on the understanding that any partner could withdraw and work his land separately. In 1919 M and his children entered into a formal partnership agreement, which provided that during the lifetime of .M no partner should withdraw from the partnership. On the death of M in 1929 the land transferred in 1913 was included in assessing his estate to death duties under the Stamp Duties Act on the ground t)iat they were gifts dutiabl1! under section 102 of the New South Wales Stamp Duties Act, 1920.

It was held that prop..:rty com prised in the transfers was the land separated from the rights there terms of in belonE:ing to the partnership and was excluded by the section 102, sub-section 2 (a) , from being dutiable, because donees had assumed and retained possession thereof, and any benefit remaining in the donor was referable to the partnership agreement of 1909 and not to the gifts. In the case of Ramachandra Gounder the deceased who was a partner in a firm owned a house property let to the firm as tenant-at-will. In August, 1953, he executed a deed of settlement under which he transferred the property let to the firm to his two sons absolutely and irrevocably and, thereafter, the fmn paid the rent to the donees by crediting the amount in equal shares, The deceased further directed the firm to transfer from his account a sum of Rs. 20,000 to the credit of each of his sons in the firm's books with effect from April 1, 1953 and he also informed them of this transfer.

An amount of Rs. 20,000 was credited in each of the sons' accounts with the firm. The sons did not with draw any amount from their accounts in the firm and the amounts remained invested with the firm for which interest at 7t per cent was paid to them. The deceased continued to be a partner of the fimt till April 13, 1957, when the firm was dis.solved and thereafter he died on May 5, 1957. The question was whether the value of the house property and the sum of R1;. one lakh could be included in the princi pal value of the estate of the deceased as property deemed to pass under section 10 of the Estate Duty Act, 1953 .. This Court held that neither the hciusc property nor the sum of Rs. one lakh could be deemed to pass under section 10. The first two conditions of section were satisfied because there was an ··unequivocal transfer of the property by a settlement deed and of the sum of Rs. one lakh by creditinit ·the amount in each of the sons' accounts with which thenceforward became liable to the sons for payment of that amount and the interest thereon.

The possession which the donor could give was the legal possession which the circumstan<:es and the nature of th~ property would admit and this the donor had given. The benefit the donor had as a member of the partnership was not a bene fit referable in any way to the gift but was unconnected therewith. their accounts 'I he present case, in our opinion, clearly falls within the purview of the dictum laid down by the High Court of Australia in the case of John Lang (supra) and of the Judicial Committee in the case John Chick (supra). As already mentioned, the High Court has found that the property which was the subject-matter of the gift under the deed of March 11, 195'5 was the entirety of Mayavaram Lodge with A B c D E G H CONTROLLER ESTATE DUTY v. PARVATHl (Khanna, !.) 6 97 A B D E F G H the principle all the rights and that the gift was not subject to any claim on reser vation. It has also been found that on the execution of the aforesaid deed the donees assumed possession and enjoyment of the entirety o~ the house.

On June 25, 1955 the donor took the aforesaid house on lease from the don.ees. These facts would show that the possession and' enjoyment of Mayavaram Lodge was not subsequent to the gift retained by the donees "to the entire exclusion of the donor or of any ben\:fit to him by' contract or otherwise". Mayavaram Lodge as such shall be deemed to pass on the death of the deceased under section 10 of the Act. The case of Ramachandra Gounder (supra) upon which great reliance has been placed by Mr. Swaminathan can hardly be of much assistance to him because in that case the gifted property was subject to the tenancy-at-will granted to the firm Ramachandra Gounder's case was thus covered by Munro's case. The question of invoking that principle does not arise in the present case because the property which is the subject matter of the gift was the entirety of Mayavaram Lodge with all the rights and the same were not subject to any right in favour of a partnership.

The principle to be kept in view in such cases is to examine the deed · of gift and find out as to what is the subject-matter of the gift. If the gift comprises the full ownership of the property not shorn of any right induding tenancy right in favour of third parties, in such an event in order to prevent the incidence of estate duty immediate bona fide physical possession and enjoyment of the gifted property must ordinarily be assumed by the donee and retained thereafter to the exclusion of the donor. In case, however, the subject-matter of the gift is properey shorn of certain rights, in that case the residue of the rights in that property would be the subject matter of the gift. In such an event it may not sometimes in the very nature of things be possible for the donee to assume.physical possession and enjoyment of the property. In such cases the possession and enjoyment of the gifted property which may be assumed by the donec would only be such as is possible under the circumstances. laid down We may mention some of the other cases to which reference has been made by Mr.

Swaminathan during the course of arguments. The case of Commissioner for Stamp Duties of New South Wales v. Per petual Trustees Company Ltd. (1) related to an indenture of settle ment made between the settler and five trustees, of whom the settlor himself was one. It was declared in that settlement that the trustees should hold certain company shaies of which the sett!or was the owner and registered· holder, and which were transferred to and registered in the names of the trustees, in trust, to apply during the minority of his son the whole or any part of the income or corpus as the trustees should think fit for the maintenance, advancement or benefit of the son. The shares and the accumulations of income were transferred to the son on his attaining the ai; le of 21 years as his absolute property. From the date of settlement the settlor never exercised any ; voting power in respect of the shares.

The son attained the age of 2'1 years in 1931, when the assets comprised in the settlement were transfel.'fed (I) [1943] A. C. 425. 698 SUPREME COURT REPORTS [1975] 2 s.C.R. to him. On a claim by the revenue authorities that on the death in 1921 of the settlor the subject of the settlement had formed part of the settlor's dutiable estate by virtue of section 102 of the New South Wales Stamp Duties Act, the Judicial Committee held that th~ inte rest of the son under the settlement in the shares and accumulations of income was not an absolute vested interest, but was contingent on his attaining the age of 21 years. It was further held that the property · comprised in the gift was the equitable interest in the shares, und that bona fide possession and enjoyment of the property comprised in the gift was assumed by the donee, viz., the son, immediately upon gift and thenceforth retained to the entire exclusion of the deceased qr of any benefit to him.

The shari:s were accordingly held not to form part of the settlor's dutiable estate. The above decision can hardly be of any assistance to the respondent. Lord Russell of Killowen in the above cited case after referring to the clauses of the settlement came to t,he conclusion that there was no gift of corpus to tlK: except in the direction to the trustees to transfer the shares to him on his attaining the age of 21 years. Until he attained that age, shares, it was held, were not the absolute property of the son and that he had only a contingent interest therein. He was entitled to the corpus of the shares if and when he attained the age of 21 years. The Judicial Committee accordingly affirmed the decision of th~ High Court of Australia that the subject-matter of the gift in favour of the son under the deed of settlement was only the equitable interest in the shares. As against that the subject-matter of the gift in the present case was the full ownership right in a house without any diminution.

The case of St. Aubyn & Ors. v. Attorney-General(I) related certain properties held on trusts and their dispositions. It is not neces sary to set out the Jong chaih of facts of that case; suffice it to say that there is nothing in that case which runs counter to the view we are taking in the matter. In Contro!•ler of Estate Duty v. R. Kanakasabai & Orq 2) deceased executed in June 1951 separate deeds in favour of his sons, grandsons, daughter and wife, settling properties thereby severa.lly in favour of the respective benefidaries absolutely and with full power of alienation. The deeds in favour of the sons and grandsons provided for payment of Rs. 1.000 per annum to the settlor, While the deed in favour of the dauirhter provided for maintenance of the settler and his wife during their lifetime. In the deed in favour of the wif.e the settlor expressed the hope that she would maintain him during lifetime.

No charge was, however, created in respect of the amounts made payable by !Jie sons .iand grandsons or in respect of daughter's liability to maintain the settlor and his wife. The deceased died on February 5, 1959 and the question which arose for determination was whether the whole or any nart of the properties comprised in the deeds passed on the death of the deceased under section 10 of the Act. Tt was held that no interest in the properties settled was reserved to the deceased quring his lifetime or the pro ~-rties were. ~ettl~d. The deed in favour of the wife mcreTy express~d for any period after (ll [1952] A.C. 15. (2) (1973) 891.T.R.251. A B c D E G H A B c D E F G H CONTROLLER ESTATE DUTY v. PARVATHI (Khanna, J.) 699 a hope or expectation and no enforceable right was created thereby. It was further held that in order to attract section 10 the benefit to the donor by contract or otherwise must be referable to the property . gifted and it was not sufficient that the donor derived a benefit arising from t~e transaction resulting in the gift.

As the provisions for annual payment§ and maintenance made in the deeds were not charged on the propcrt.ies settled, the donor could not be said to have retained any interest or any benefit either in the property settled or in respect of thell' possession. Neither the whole nor any part of the properties compriseif rn those deeds was consequently liable to be included in computing the value of the estaty that passed on the death of deceased. This case can equally be of no assistance to the \l'espondent because the question which arose for Jetermination in tl1ut case v1as wholly different from that which arises in the present case. Mr. Swaminathan has theu pointed out that section 10 of Act contains the words "to the extent" which are not there statutory provisions with which .the High Court of Australia and the Judicial Committee were concerned in the cases of Joh11 Lang and Chick respectively.

It is urged that the words "to the extent" indicate · that if possesswn and enjoyment of ihe gifted property is not assumed by the donee and thenceforward retained tQ the entire exclusion of the donor, it would be the right of possession and. enjoyment of the gifted property which shall be .taken to pass on the death of the donor. The learned counsel accor, dingly concludes that what is to be taken into account in determining the principal value of the estate is · the value of the right to possession and enjoyment of the gifted property and not the value of the prol'l'.rty in its entirety. We are unable. accede to this submission. It is, no doubt, true that tlae words "to . the extent" do not find a mention in the statutory provisions whieh were construed in the cases of I ohn Lang and Chick, but that fact would not materially affect our conclusion. The words "to the extent" connote that if the donee does not assume immediate bona fide pos session and enjoyment of a part or fraction of the gifted property and thenceforward retain it to the entire exclusion of the donor or of any benefit to him by contract or otherwise, it shall be that part or frac tion of the gifted property which shall be d'eemed to pass on the death of the donor.

Thos~ words thus seek to restrict the liability to pay estate duty in respect of only the aforesaid part or fraction of the property. They underline the intention of the legislature that in the event of the done~ riot assuming bona fide possession and enjoyment of a part or fraction of the gifted property and thenceforward retain ing it to the entire exclusion of the donor or of any benefit to him by contract or otherwise, the estate duty shall be payable not in respect of the whole of the gifted property but only in respect of that part or fraction of the gifted property of which the donee did not assume bona fide possession and enjoyment and thenceforward retain to the entire exclusion of the donor or of any benefit to him by contr:1ct or otherwise. An illustration of this is furnished by the case of Rash Moha11 Chatterjee & Ors. v. Controller of Estate Duty West Bengal. (!) (I) (1964) 52 I.T.R. I (Estatt Duly part).

700 SUPRE\\l:E COURT REPORTS [1975] 2 s.c.R. In that case the deceased settled on July 1, 1954 certain premises in trust for the absolute use and benefit ot his two sons in equal ~hares during their lives Md upon the death of one or both the sons for the use of the wife or wives of such son or sons with remainder male children of the two sons in equal shares per stripes. The upper portion of the premises was leased to the deceased himself on a rent of Rs. 150 per month for a term of five years with effect from th'~ date of settlement. The lease expired on June 30, 1959 but the deceased continue:<! to occupy th.at part of the premises for a few days there after, until his death on July 11, 1959. The question which arose for determination was whether and to what extent estate duty was charge able in regard to those premises under section 10 of the Act. It was held that the lease gave to th~ donor possession and enjoyment of the property it.self and the case fell within the statutory charge under section 10.

As, however, section 10 provided that such property was chargeable only to the extent that the deceased was not excluded, estate duty was payable by the accountable persons only on that por tion of the: premises which was in the occupation of the deceased as a Jessee. The High Court in th,e judgment under appeal mentioned Mayavaram Lodge was a bundle of rights of which possession and enjoyment formed a part. We may in this context observe that it was the ownership of the above property which constituted the bundle ol rights. The view urged· on behalf of the respondent and accepted by the High Court that the estate duty is payable only in respect of the value of the right to possession and enjoyment in the hand of deceased as a lessee of Mayavaram Lodge runs, in om· opinion,. counter to the plain language of section 10 of the Act. What the sec tion contemplates is that it would be the property taken underth1) gift which shall be deemed to pass on ;the donor's death if the bona fide possession and enjoyment thereof was not immediately a5swned by the donee and thenceforward retained to the entire exclusion of donor or of any benefit to him by contract oi: otherwise.

There nothing in the section to indicate that if the donee does not the gifted diately assume bona fide possession. and enjoyment. of property and thenceforward retain it to the entire exclusion of donor, in such an event the right only to possession or enjoyment of the propel'VJ shall be deemed to pass on the death of the donor. Apart from the case of Rash Mohan Chatterjee (supra) to which we have already made a reference, the stand taken on behalf of the respondent cannot be accepted in the face of the decision of this Court -case of George Da Costa (supra). The deceased in that case had pur chased a house in the joint names of himself and his wife in 1940. They made a gift of the house to their sons in October 1954. The document recited that the donees had accepted the gift and that they had been put in possession. The deceased died on September 30, 1959. The Controller included the value of that house in the ·princi· pal value of the estate that passed on the deceased's death under sec- . tion 10 of 1he Estate Duty Act, 1953.

The Board found that, though tlie deceased had gifted the house for four years before his dcnth, he still continued to stay in the house till his death as the hend of the A B c D E F G H CONTROLLER ESTATE DUTY v. PARVATHI (Khanna, J.) 701 A 8 c D E F family and was a)SQ. looking after the affairs of the house. It was fur~ the1 found that the property was purchased entirely ou't of the funds of the deceased. and though the property stood in the joint names of the deceased and his wife, the wife was merely a name-lender and the entire property belonged to the deceased. It was held by this Court that the value of the property was correctly included in the estate of the deceased as property deemed to pass on his death under section 10. If the view propounded on behalf of the respondent were to be accepted, in that case the property which passed on the death of the deceased in the case of George Da Costa could only be the value of the right to possession.

In our opinion, the stand· taken on behalf of ·the rl!spondent in this respect is clearly untenable. Lastly, it has been argued on behalf of the respondent that we should remand the case to find as to whether the deed of March 11, 1955 constituted· deed of partition. We are unable to a~e to this submission. The High Court has proceeded upon the basis that the property in questio.n was gifted by the deceased in favour of his sons as a result of that deed. The Board of Direct Taxes found on rence to the aforesaid deed that all the properties mentioned therein were the seU~acquired properties of the deceased and there was noth ing in any part of the deed to show an intention on the part of the deceased to treat them as properties belonging to the joint family. It was also found that there was no evidence of any clear intention of the deceased to waive bis separate rights. Accordingly, the Board came to the conclusion that the said document was not a partition deed relating to the joint family property.

In the circumstances, we find no sufficient ground for remanding the case. As a result of the above we accept the appeal, discharge answer given by the High Court to the ql!estion referred to it and answer that question fn favour of the revenue and against che account able person. Our answer is that on the facts and m the circumstances of the case the entire value of the property known as ·'Mayavaram Lodge" is liable to be facluded. in the prin, cipal value of· the estate of the deceased as property deemed to have passed on his death. The appellant shall be entitled to the costs of the appeal. V.P.S. Appeai allowed.