{"id":124547,"date":"1986-02-18T00:00:00","date_gmt":"1986-02-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/controller-of-estate-duty-a-p-vs-smt-godavari-bai-on-18-february-1986"},"modified":"2019-03-04T15:20:55","modified_gmt":"2019-03-04T09:50:55","slug":"controller-of-estate-duty-a-p-vs-smt-godavari-bai-on-18-february-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/controller-of-estate-duty-a-p-vs-smt-godavari-bai-on-18-february-1986","title":{"rendered":"Controller Of Estate Duty, A.P., … vs Smt. Godavari Bai on 18 February, 1986"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Controller Of Estate Duty, A.P., … vs Smt. Godavari Bai on 18 February, 1986<\/div>\n
Equivalent citations: 1986 AIR 631, \t\t 1986 SCR (1) 348<\/div>\n
Author: V Tulzapurkar<\/div>\n
Bench: Tulzapurkar, V.D.<\/div>\n
           PETITIONER:\nCONTROLLER OF ESTATE DUTY, A.P., HYDERABAD\n\n\tVs.\n\nRESPONDENT:\nSMT. GODAVARI BAI\n\nDATE OF JUDGMENT18\/02\/1986\n\nBENCH:\nTULZAPURKAR, V.D.\nBENCH:\nTULZAPURKAR, V.D.\nMUKHARJI, SABYASACHI (J)\nMISRA RANGNATH\n\nCITATION:\n 1986 AIR  631\t\t  1986 SCR  (1) 348\n 1986 SCC  (2) 264\t  1986 SCALE  (1)236\n CITATOR INFO :\n RF\t    1988 SC1426\t (15)\n RF\t    1988 SC1511\t (9)\n\n\nACT:\n     Estate Duty  Act 1953, s.10 - Ingredients of - Property\ntaken under  any gift  - Whether  part of estate of deceased\ndonor passing on his death - Dependent upon what was subject\nmatter of  gift and  whether  gift  of\tabsolute  nature  or\nsubject to certain rights.\n\n\n\nHEADNOTE:\n     The respondent's  husband\twas  a\tpartner\t in  a\tfirm\ncarrying on  business as  bankers. He  issued a\t cheque\t for\nRs.3,00,000 in\tfavour of the firm on 4th October, 1952 with\na view to give Rs. 1,00,000 to each of his three minor grand\nnephews. This  amount was debited to his account in the firm\nand credited  in the  accounts of  the three minors in equal\nproportion. He\tdied on\t 21st February\t1956. The  said\t sum\ncontinued to  stand in\tthe respective accounts of the three\nminors in  the books of the firm till its dissolution on 4th\nJuly, 1960  whereafter some assets were allotted to each one\nof them in lieu of the amounts standing to their credit.\n     The respondent,  as the  accountable person,  filed  an\naccount declaring the value of the assessee's estate without\nincluding the  aforesaid sum  of Rs. 3,00,000 transferred by\nthe deceased  to his  three grand  nephews. The\t respondent-\nassessee contended  before the\tDeputy Controller  (i)\tthat\nthese transfers\t were not  gifts but amounted to transfer of\nactionable claims  made in  conformity with  s. 130  of\t the\ntransfer of  Property Act  by effecting entries in the books\nof account; and (2) that the transfer amounted to a novation\nwhich  did   not  require   an\tinstrument   signed  by\t the\ntransferor.  The   Deputy  Controller\tnegatived  both\t the\ncontentions and\t held that  the\t sum  of  Rs.  3  lakhs\t was\nincludible in  the estate of the deceased that passed on his\ndeath. The  Appellate  Controller  confirmed  the  aforesaid\norder in  appeal. In  the further  appeal preferred  by\t the\nrespondent, the\t Appellate Tribunal, held (i) that the plain\nreading of section 130 showed that the transfer\n349\nof an  actionable claim\t became complete  and effective only\nupon the execution of an instrument in writing signed by the\ntransferor or  by his  duly authorised\tagent; (ii) that the\ncheque issued  by the  deceased in  favour of  the firm only\nauthorised the\tfirm to pay to itself the sum of Rs. 3 lakhs\nfrom out  of the  amount lying at the credit of the deceased\nbut it did not by itself authorise the firm to transfer this\namount to  anyone else\tand that  such a  transfer could  be\nauthorised by  a separate  letter of  instructions from\t the\ndeceased but  no  such\tinstrument  obtained  and  the\toral\ninstructions given  could not  take the\t place\tof  such  an\ninstrument in  writing and,  therefore the transfer of Rs. 3\nlakhs done  in favour  of the  donees was  not in accordance\nwith the  requirements of section 130; (iii) that the amount\nof Rs.3\t lakhs was  also includible  in the  estate  of\t the\ndeceased under\tsection 10 of the Estate Duty Act even if it\nwere assumed that the transfer became complete and effective\non the\tdate of\t the transfer  inasmuch as  on the facts, it\ncould not  be said  that the  donees retained possession and\nenjoyment of  the gifted  amounts to the entire exclusion of\nthe donor  or of  any benefit  to him and that this position\ncontinued to exist till the death of the deceased.\n     The High  Court in\t a reference  at the instance of the\nassessee, set aside the order of the Tribunal on the grounds\n(i) that it was a gratuitous transfer of an actionable claim\nand the inter-position of a cheque issued by the deceased in\nfavour of  the firm  made all the difference inasmuch as the\ntransfer of  an actionable claim represented by a negotiable\ninstrument like\t a cheque  was governed\t by section  137  in\npreference to  section 130  of the  Transfer of Property Act\nand that  the cheque  together with  the  oral\tinstructions\n(which\teven   the  Tribunal  presumed\twere  given  by\t the\ndeceased) would\t constitute the\t firm a\t trustee or an agent\nholding the  moneys for\t the benefit  of the  minors and, as\nsuch,  the  transfer  to  minors  was  valid,  complete\t and\neffectual; (ii)\t that the donor had been completely excluded\nfrom the subject-matter of the gift and, as such, section 10\nwas not applicable.\n     Dismissing the appeal,\n^\n     HELD: 1.  The  transaction\t in  question  clearly\tfell\nwithin the  ratio of  the decision  in Munro's\tcase and the\nHigh Court\n350\nwas right  in coming  to  the  conclusion  that\t to  such  a\ntransaction, section 10 was inapplicable. [362 F-G]\n     2.(i)  Section   10  of   the  Estate  Duty  Act,\t1953\nprescribes two\tconditions, namely,: (1) that the donee must\nbona fide  have assumed\t possession  and  enjoyment  of\t the\nproperty which\tis the\tsubject-matter of  the gift  to\t the\nexclusion of  the donor\t immediately upon  the gift; and (2)\nthat the  donee\t must  have  retained  such  possession\t and\nenjoyment of  the property  to the  entire exclusion  of the\ndonor or  of any  benefit to  him by  contract or otherwise.\nBoth these  conditions are  cumulative. Unless\teach of\t the\nconditions is  satisfied, the  property would  be liable  to\nestate duty under section 10 of the Act. [357G-H; 358 A]\n     2.(ii) The\t second part  of s.  10 has  two limbs:\t the\ndeceased must  be entirely  excluded (i)  from the property;\nand (ii)  from any benefit by contract or otherwise and that\nthe word \"otherwise\" should be construed ejusdem generis and\nshould be  interpreted to mean some kind of legal obligation\nor some\t transaction enforceable  in law or in equity which,\nthough not  in the  form of a contract, may confer a benefit\non the donor. [358 B-C]\n     3.(i) The\tquestion whether  gifted property  should be\nregarded as  a part  of the  estate of\tthe  deceased  donor\npassing on  his death  for the\tpurpose of  s. 10 of the Act\nwould depend upon as to what precisely is the subject matter\nof the\tgift and  whether the  gift is of absolute nature or\nwhether it is subject to certain rights. If the gift is made\nwithout any  reservation or  qualification, that  is to say,\nwhere the  gift\t carries  fullest  right  known\t to  law  of\nexclusive possession and enjoyment, any subsequent enjoyment\nof the\tbenefit of  that property  by way  of possession  or\notherwise by  the donor\t would bring  the  gift\t within\t the\npurview of  s. 10;  but where  the gift\t is subject  to some\nreservation or qualification, that is to say, if the subject\nmatter of  the gift  is property shorn of certain rights and\nthe possession or enjoyment of some benefit in that property\nby the\tdonor is referable to those rights i.e. rights shorn\nof which  the property\tis gifted,  then in  that  case\t the\nsubject matter of the gift will not be deemed to pass on the\ndeath of the deceased donor. In other words, if the deceased\ndonor limits the interest he is parting with and\n351\npossesses or  enjoys some  benefit in  the property  not  on\naccount of  the interest  parted with  but  because  of\t the\ninterest still\tretained by  him, the  interest parted\twith\nwill not  be deemed  to be  a part  of\tthe  estate  of\t the\ndeceased-donor passing on his death for the purpose of s. 10\nof the\tAct. It\t is these aspects which mark the distinction\nbetween the  two leading  cases,  namely  Chick's  case\t and\nMunro's case. The decision in chicks's case falls within the\nfirst category\twhile Munro's  case falls  within the  other\ncategory. [358 E-H; 359 A-B]\n     In the  instant case, the donees were never admitted to\nthe benefits  of the  partnership firm. The Tribunal as well\nas the\tHigh Court  found as a fact that when the cheque was\nissued oral instructions must be presumed to have been given\nby the deceased to the firm for crediting the three accounts\nof the\tthree minors  without which  the firm could not make\nsuch credit  entries. Therefore, the transaction in question\namounted to  a gratuitous transfer of an actionable claim to\nwhich s.  137 in  preference to\t s. 130\t of the\t Transfer of\nProperty Act  applied and  there was a valid gift thereof to\nthe minor  donees. Moreover,  the amount  of Rs. 3 lakhs did\nnot go\tout of\tthe firm  but on  being transferred from the\naccount of  the deceased to the accounts of the minor donees\ncontinued to  remain with  the firm  for being\tused for the\nfirm's business;  in fact  the partnership continued to have\nthe benefit  thereof even  after the death of the donor till\nthe firm  was dissolved.  Obviously, the  substance  of\t the\ntransaction was\t that the gift was of an actionable claim of\nthe value of Rs. 3 lakhs out of the donor's right, title and\ninterest as  a whole  in the  firm and\tas such was shorn of\ncertain rights\tin favour  of the partnership and therefore,\nthe possession\tor enjoyment  of the benefit retained by the\ndonor as a partner of the firm must be regarded as referable\nto partnership\trights and had nothing to do with the gifted\nproperty. [361 G-H; 362 A-F]\n     Munro v.  Commissioner of Stamp Duties, [1934] A.C. 61;\nC.R.  Ramachandra   Gounder's  case,  88  I.T.R.  448;\tN.R.\nRamarathanm case, 91 I.T.R.Controller of Estate Duty v. R.V.\nVishwanathan &\tOrs.,<\/a> 105  I.T.R. 653 & Controller of Estate\nDuty v. Kamlava, 120 I.T.R. 456 applied.\n     Chicks v.\tCommissioner of\t Stamp Duties  of New  South\nWales, 37 I.T.R. (E.D.) 89; George Da Costa v. Controller of<\/a>\n352\nEstate Duty,  Mysore, 63  I.T.R. 497;  Controller of  Estate\nDuty, Madras  v. Smt. Parvati Ammal<\/a> 97 I.T.R. 621; Shantaben\nS. Kapadia  v. Controller of Estate Duty, Gujarat, 73 I.T.R.\n171 &  Controller of  Estate Duty,  Gujarat v.\tChandravadan\nAmratlal Bhatt, 73 I.T.R. 416 distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 79 (NT)
\n1974.\n<\/p>\n
     From the  Judgment and  Order dated  29.2.1972  of\t the
\nMadras High Court in Tax Case No. 209 of 1966.\n<\/p>\n
     S.C.  Manchanda   and  Miss   A.  Subhashini   for\t the
\nAppellant.\n<\/p>\n
     T.A. Ramachandran\tand Mrs.  Janki Ramachandran for the
\nRespondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     TULZAPURKAR,   J.\t The   question\t  raised   for\t our
\ndetermination in  this appeal is whether on the facts and in
\nthe circumstances  of the  case the  amount of\tRs. 3  lakhs
\ntransferred by\tthe deceased  to his  three grand nephews in
\nequal shares  was includible  in the  estate of the deceased
\nthat passed  on his  death? Substantially the answer thereto
\ndepends upon  whether sec.10 of the Estate Duty Act, 1953 is
\nattracted to the case or not.\n<\/p>\n
     The facts\tgiving rise  to the  question may briefly be
\nstated. The  deceased, Sri Bankatlal Lahoti was a partner in
\nthe firm  of M\/s Dayaram Surajmal, which carried on business
\nas a  Bankers. With  a view  to give  Rs.1 lakh\t each to his
\nthree minor  grand nephews (three grand sons of his deceased
\nbrother) the  deceased on  4th October\t1952 issued a cheque
\nfor Rs.3  lakhs in  favour of  the  firm;  this\t amount\t was
\ndebited in  the account\t of the\t deceased in  the  firm\t and
\ncredited in  the accounts  of  the  three  minors  in  equal
\nproportion. The\t said sum  thus\t transferred  to  the  three
\nnephews continued  to stand  in their respective accounts in
\nthe books of the firm till its dissolution on 4th July 1960,
\nwhereafter some\t assets were allotted to each one of them in
\nlieu of\t the amounts  standing to their credit. The deceased
\ndied on 21st February 1956.\n<\/p>\n
     After  the\t death\tof  the\t deceased,  his\t widow\tSmt.
\nGodavari Bai  as the  accountable person filed an account of
\nthe
\n353<\/span>
\nassessee’s   estate   declaring\t  the\tvalue\tthereof\t  at
\nRs.2,60,702. This  did not  include the\t sum of\t Rs.3  lakhs
\ntransferred by\tthe deceased  to the  three grand nephews on
\n4th  October   1952.  The   assessee  contended\t that  these
\ntransfers  were\t not  gifts  but  amounted  to\ttransfer  of
\nactionable claims  made in  conformity\twith  s.130  of\t the
\nTransfer of  Property Act  by effecting entries in the books
\nof account. Alternatively it was contended that the transfer
\namounted to  a novation\t which did not require an instrument
\nsigned by  the transferor.  The Deputy\tController negatived
\nboth the contentions; the first on the ground that there was
\nno valid  transfer of  actionable claims  because it was not
\neffected  by   an  instrument\tin  writing  signed  by\t the
\ntransferor as  required by s.130 of the Transfer of Property
\nAct while  the alternative contention on the ground that the
\ntransaction did\t not amount  to a novation inasmuch as there
\nwas no substitution of one debt for another. In this view of
\nthe matter  the Deputy\tController held that the sum of Rs.3
\nlakhs was  includible in  the estate  of the  deceased\tthat
\npassed on his death. In the appeal preferred by the assessee
\nthe self  same contentions  were urged\ton her behalf before
\nthe Appellate  Controller of  Estate Duty  while the  Deputy
\nController justified the assessment on the additional ground
\nthat the sum of Rs.3 lakhs was also includible in the Estate
\nof the\tdeceased that  passed on his death under s.10 of the
\nEstate Duty  Act 1953. The Appellate Controller rejected the
\nassessee’s contentions\tand accepted  those  of\t the  Deputy
\nController and\tconfirmed the inclusion of the amount in the
\nestate of  the deceased.  In the further appeal preferred to
\nthe Appellate  Tribunal since  it was  admitted on behalf of
\nthe assessee  that apart  from\tthe  cheque  issued  by\t the
\ndeceased in  favour of\tM\/s Dayaram Surajmal and the entries
\nmade in\t the books  of that  firm  debiting  the  deceased’s
\naccount and  crediting the  accounts of the donees there was
\nno other  document to  evidence the  transfer  the  Tribunal
\npresumed that  the tansfer  was effected as a result of oral
\ninstructions which  must have  been given by the deceased to
\nthe firm.  Counsel for\tthe assessee,  however,\t urged\tthat
\nnotwithstanding the  absence of\t an  instrument\t in  writing
\nsigned by the assessee the transfer was valid under s.130 of
\nthe Transfer of Property Act and in that behalf reliance was
\nplaced on  Ramaswamy Chettiar  and Ors.\t v. K.S.M.  Manickam
\nChettiar and  Ors., A.I.R.<\/a>  1938 Madras\t 236 and  Seetharama
\nAyyar and  Anr.v. Narayanaswami\t Pillai and  Anr. 47  Indian
\nCases 749 but the Tribunal did not accept the
\n354<\/span>
\ncontention and\theld that  the plain reading of s.130 showed
\nthat the transfer of an actionable claim became complete and
\neffectual only\tupon  the  execution  of  an  instrument  in
\nwriting signed\tby the\ttransferor or by his duly authorised
\nagent; that  the cheque\t issued by the deceased in favour of
\nthe firm  only authorised  the firm to pay to itself the sum
\nof Rs.3\t lakhs from out of the amount lying at the credit of
\nthe deceased  but it did not by itself authorise the firm to
\ntransfer this amount to anyone else and that such a transfer
\ncould be  authorised by\t a separate  letter of\tinstructions
\nfrom the  deceased but\tno such\t instrument obtained and the
\noral instructions  given could not take the place of such an
\ninstrument in  writing and  therefore the  transfer of\tRs.3
\nlakhs done  in favour  of the  donees was  not in accordance
\nwith  the  requirements\t of  section  130.  The\t alternative
\ncontention that the transfer was in the nature of a novation
\nwas also  rejected on  the ground  that the  donees were not
\nindebted to  the firm  nor was\tthe deceased indebted to the
\ndonees and  therefore, the entries made in the account books
\nof the firm could not be understood as a substitution of one
\ndebtor in  the place of another. The Tribunal also held that
\nthis amount  of Rs.3  lakhs was\t includible in the estate of
\nthe deceased  under s.10  of the  Estate Duty Act even if it
\nwere assumed that the transfer became complete and effective
\non the\tdate of\t the transfer  inasmuch as  on the  facts it
\ncould not  be said  that the  donees retained possession and
\nenjoyment of  the gifted  amounts to the entire exclusion of
\nthe donor  or of  any benefit  to him and that this position
\ncontinued to exist till the death of the deceased.\n<\/p>\n
     At the  instance of  the assessee the Tribunal referred
\nthe following  question of  law to  the High  Court for\t its
\nopinion:\n<\/p>\n
\t  “Whether on  the facts and in the circumstances of
\n\t  the case,  the Appellate Tribunal was right in law
\n\t  in  holding\tthat  the   amount  of\t Rs.3  lakhs
\n\t  transferred by  the assessee\tto his grand nephews
\n\t  was includible  in the estate of the deceased that
\n\t  passed on his death.”\n<\/p><\/blockquote>\n
On a consideration of the entire material on record the High
\nCourt took  the view  that the\tentries made in the books of
\nthe firm  by debiting the account of the deceased in the sum
\nof
\n355<\/span>
\nRs.3 lakhs and crediting the said amount in equal proportion
\nin the three accounts of the donees (grand nephews) might or
\nmight not constitute a valid gift of money but proceeding on
\nthe basis  that it  was gratuitous transfer of an actionable
\nclaim the  interposition of  a cheque issued by the deceased
\nin favour of the firm made all the differene inasmuch as the
\ntransfer of  an actionable claim represented by a negotiable
\ninstrument like a cheque was governed by s.137 in preference
\nto s.130 of the Transfer of Property Act and that the cheque
\ntogether with the oral instructions (which even the Tribunal
\npresumed were  given by\t the deceased)\twould constitute the
\nfirm, a\t trustee or  an agent  holding the  moneys  for\t the
\nbenefit of the minors and as such the transfer to the minors
\nwas valid,  complete and  effectual. After  coming  to\tthis
\nconclusion the High Court proceeded to consider the question
\nwhether to  this transaction  of gift of an actionable claim
\ns.10 of\t the Act  was applicable or not and relying upon the
\ndecision in  the leading  case of  Munro v.  Commissioner of
\nStamp Duties,  1934 A.C.  61 as\t well  as  its\ttwo  earlier
\ndecisions in  Controller of  Estate Duty v. C.R. Ramachandra
\nGounder,<\/a> 73 I.T.R. 166 and Controller of Estate Duty v. N.R.
\nRamarathanam,<\/a> 74  I.T.R. 432  the High\tCourt held  that the
\ndonor had  been completely  excluded from the subject matter
\nof the\tgift and  as such  s.10 was not applicable. In other
\nwords differing\t from the  view taken  by the  Tribunal, the
\nHigh Court  held that  the transaction\tinvolved in the case
\nwas a  gratuitous transfer  of an  actionable claim and that
\nthere was  in law  a  valid,  complete\tand  effectual\tgift
\nthereof in favour of the three minor grand nephews and since
\ns.10 was  not attracted\t the  sum  of  Rs.3  lakhs  was\t not
\nincludible in  the value  of the estate of the deceased that
\npassed on his death. It, therefore, answered the question in
\nthe negative in favour of the assessee. The Revenue has come
\nup in appeal.\n<\/p>\n
     Counsel for  the Revenue  did not assail the High Court
\nconclusion in  regard to  their being  a valid\tgift of\t the
\nactionable claim  in favour of the minors resulting from the
\nissuance of  the cheque accompanied by oral instructions and
\nfollowed by  the making\t of the\t requisite debit  and credit
\nentries in  the firm’s\tbooks but  vehemently criticised the
\nview that s.10 was inapplicable to this transaction of gift.
\nHe urged that possession and enjoyment of the subject matter
\nof the\tgift was  neither assumed by the donees nor retained
\nby
\n356<\/span>
\nthem to\t the entire  exclusion of  the donor inasmuch as the
\ndonor as a partner of the firm had control over the said sum
\nof Rs.3 lakhs which continued to lie with the firm for being
\nused as\t the firm’s  property and this position continued to
\nobtain till  the death\tof the deceased and in fact till the
\ndissoiution and\t as such  s.10 was clearly attracted. Strong
\nreliance was  placed by counsel for the revenue on the ratio
\nof the\tPrivy Council  decision in Chicks v. Commissioner of
\nStamp Duties of New South Wales, 37 I.T.R. E.D. 89 which was
\nfollowed by  this Court\t in George Da Costa v. Controller of
\nEstate Duty,  Mysore,<\/a> 63 I.T.R. 497 and Controller of Estate
\nDuty, Madras  v. Smt.  Parvati Ammal,<\/a>  97 I.T.R. 621 as also
\ntwo decisions  of the  Gujarat High  Court in a Shantaben S.
\nKapadia v. Controller of Estate Duty, Gujarat, 73 I.T.R. 171
\nand in\tController of  Estate Duty,  Gujarat v. Chandravadan
\nAmratlal Bhatt, 73 I.T.R. 416. On the other hand counsel for
\nthe assessee supported the view of the High Court by placing
\nreliance on  the decision  in Munro’s case (supra) which had
\nbeen followed  by this\tCourt in C.R. Ramachandra Gounder’s,
\n88  I.T.R.   448  N.R.\t Ramarathanam’s\t case  91  I.T.R.  1
\nController of  Estate Duty  v. R.V. Vishwanathan & Ors.,<\/a> 105
\nI.T.R. 653  and Controller  of Estate duty v. Kamlavati, 120
\nI.T.R. 456.\n<\/p>\n
     Having regard  to the rival contentions urged before us
\nit is  clear that  the answer to the question raised in this
\nappeal depends upon a proper analysis of s.10 of the Act and
\nwhether\t the   instant\tcase   falls  within   the  doctrine
\nenunciated in  Munro’s case  (supra) or\t within the ratio of
\nChicks’ case  (supra)? Relevant\t portion of  s.10 of the Act
\nruns thus
\n\t  “Property taken  under any  gift,  whenever  made,
\n\t  shall be  deemed to  pass on\tthe donor’s death to
\n\t  the extent that bona fide possession and enjoyment
\n\t  of it was not immediately assumed by the donee and
\n\t  thenceforward retained  to the entire exclusion of
\n\t  the donor  or of any benefit to him by contract or
\n\t  otherwise…..”\n<\/p>\n
The object  under lying a provision like s.10 of the Act was
\nexplained by  Issacs J.\t in the\t case of John Lang v. Thomas
\nProut Webb,  1912 13 C.L.R. 503 decided by the High Court of
\nAustralia in the following words :\n<\/p>\n
357<\/span><\/p>\n
\t  “The owner  of property desiring to make a gift of
\n\t  it to another may do so in any manner known to the
\n\t  law. Apparent\t gifts may be genuine or colourable,
\n\t  and  experience  has\tshown  that  frequently\t the
\n\t  process  of\tascertaining  their  genuineness  is
\n\t  attended with delay, expense and uncertainty – all
\n\t  of which  are extremely embarrassing from a public
\n\t  revenue standpoint.\n<\/p><\/blockquote>\n
\t  With a  view to  avoiding this  inconvenience, the
\n\t  legislature has  fixed two standards, both of them
\n\t  consistent  with  actual  genuineness,  but  prima
\n\t  facie indicating  a colourable  attempt to  escape
\n\t  probate duty. One is the standard of time. A gift,
\n\t  however, real and bona fide, if made within twelve
\n\t  months before the donor’s death is for the purpose
\n\t  of duty regarded as not made. The other is conduct
\n\t  which\t first\t sight\tand   in  the\tabsence\t  of
\n\t  explanation is  inconsistent with  the  gift.\t The
\n\t  prima\t facie\tview  is  made\tby  the\t legislature
\n\t  conclusive. If  the  presies\tto  the\t transaction
\n\t  choose to  act so  as to  begin apparent  conflict
\n\t  with its  purport, they  are to  be held  to their
\n\t  conduct.\n<\/p><\/blockquote>\n
\t  The validity\tof the\ttransaction itself  is\tleft
\n\t  untouched, because  it concerns  themselves alone.
\n\t  But they  are not to embarrass the public treasury
\n\t  by equivocal acts.”<\/p><\/blockquote>\n
     The conditions  specified\tin  s.10  will\thave  to  be
\nunderstood by  keeping in  view the  aforesaid\tobject\twith
\nwhich the  section has\tbeen enacted.  In George Da Costa v.
\nController of  Estate Duty,  Mysore<\/a> (supra)  this Court\t has
\nanalysed the  conditions on  the  fulfilment  of  which\t the
\nsection gets attracted, thus:\n<\/p>\n
\t  “The crux  of the  section lies  in two parts; (1)
\n\t  the donee  must bona\tfide have assumed possession
\n\t  and  enjoyment  of  the  property,  which  is\t the
\n\t  subject matter  of the  gift, to  the exclusion of
\n\t  the donor,  immediately upon\tthe gift and (2) the
\n\t  donee\t must  have  retained  such  possession\t and
\n\t  enjoyment of\tthe property to the entire exclusion
\n\t  of the donor or of
\n358<\/span>
\n\t  any benefit  to him by contract or otherwise. As a
\n\t  matter of construction we are of opinion that both
\n\t  these conditions  are cumulative.  Unless each  of
\n\t  these conditions  is satisfied, the property would
\n\t  be liable to estate duty under s.10 of the Act.”<\/p><\/blockquote>\n
     The second\t part of  the section,\tas observed  in\t the
\nafore said  decision, has  two limbs  the deceased  must  be
\nentirely excluded  (i) from  the property, and (ii) from any
\nbenefit\t by   contract\tor   otherwise\tand  that  the\tword
\n‘otherwise should be construed ejusdem generis and should be
\ninterpreted to\tmean some  kind of  legal obligation or some
\ntransaction enforceable\t in law\t or in\tequity which, though
\nnot in\tthe form  of a contract, may confer a benefit on the
\ndonor.\n<\/p>\n
     Therefore,\t  the\tquestion   that\t  arises   for\t our
\ndetermination in  this appeal  is whether the aforementioned
\ntwo cumulative\tconditions requisite for attracting s.10 are
\nsatisfied in  this case or not? Whether immediately upon the
\ngift  the  donees  had\tbona  fide  assumed  possession\t and
\nenjoyment of  the property,  which was the subject matter of
\nthe gift, to the exclusion of the donor and whether they had
\nretained such possession and enjoyment thereof to the entire
\nexclusion of  the donor or of any benefit to him by contract
\nor otherwise?\n<\/p>\n
     The question whether gifted property should be regarded
\nas a part of the estate of the deceased donor passing on his
\ndeath for  the purpose\tof s.10 of the Act would depend upon
\nas to  what precisely  is the subject matter of the gift and
\nwhether the  gift is  of absolute  nature or  whether it  is
\nsubject to  certain rights.  If the gift is made without any
\nreservation or qualification, that is to say, where the gift
\ncarries fullest\t right known  to law of exclusive possession
\nand enjoyment,\tany subsequent\tenjoyment of  the benefit of
\nthat property by way of possession or otherwise by the donor
\nwould bring  the gift  within the purview of s.10; but where
\nthe gift  is subject  to some  reservation or qualification,
\nthat is\t to say,  if the  subject  matter  of  the  gift  is
\nproperty shorn\tof certain  rights  and\t the  possession  or
\nenjoyment of  some benefit  in that property by the donor is
\nreferable  those   rights  i.e.rights  shorn  of  which\t the
\nproperty is  gifted, then in that case the subject matter of
\nthe gift  will not  be deemed  to pass\ton the\tdeath of the
\ndeceased donor. In other words if the
\n359<\/span>
\ndeceased donor\tlimits the  interest he\t is parting with and
\npossesses or  enjoys some  benefit in  the property  not  on
\naccount of  the interest  parted with  but  because  of\t the
\ninterest still\tretained by  him, the  interest parted\twith
\nwill not  be deemed  to be  a part  of\tthe  estate  of\t the
\ndeceased donor\tpassing on his death for the purpose of s.10
\nof the\tAct. It\t is these aspects which mark the distinction
\nbetween the  two leading  cases,  namely  Chick’s  case\t and
\nMunro’s case (supra). As we shall indicate presently Chick’s
\ncase falls  within the\tfirst category\twhile  Munro’s\tcase
\nfalls within the other category.\n<\/p>\n
     In Chick’s\t case the  question arose under s.102 of the
\nNew South  Wales Stamp Duties Act, 1920-56 which was similar
\nto s.10\t of our\t Act and  the facts  were these:  In 1934  a
\nfather transferred  by way  of gift  to one  of his  sons  a
\npastoral  property,   the  gift\t having\t been  made  without
\nreservation or\tqualification or condition. In 1935, some 17
\nmonths after the gift, the father, donee-son and another son
\nentered into  an agreement  to carry  on in  partnership the
\nbusiness  of  graziers\tand  stock  dealers.  The  agreement
\nprovided, inter\t alia that  the father should be the manager
\nof the\tbusiness and  that his\tdecision should be final and
\nconclusive in  connection with\tall matters  relating to its
\nconduct that  the capital  of the business should consist of
\nthe  livestock\tand  plant  then  owned\t by  the  respective
\npartners that  the  business  should  be  conducted  on\t the
\nrespective holdings  of the partner and such holdings should
\nbe used\t for the  purposes of  the partnership only that all
\nlands held  by any  of the  partners  at  the  date  of\t the
\nagreement should  remain the  sole property  of such partner
\nand should not on any consideration be taken into account as
\nor deemed  to be  an asset  of the  partnership and any such
\npartner should\thave the sole and free right to deal with it
\nas he  might think  fit. Each  of the  three partners  owned
\nproperty, that\tof the\tdonee-son being\t that which had been
\ngifted to  him by  his father  in  1934,  and  each  partner
\nbrought into  partnership livestock  and  plant,  and  their
\nthree properties  were thenceforth  used for the depasturing
\nof the\tpartnership stock  and this arrangement continued up
\nto the\tdeath of  the father in 1952. The Privy Council held
\nthat the  value of the property given to the son in 1934 was
\nto be included in computing the value of the father’s estate
\nfor the\t purpose of  death duty.  While it  was not disputed
\nthat the  son had assumed bona fide possession and enjoyment
\nof the property immediately upon the
\n360<\/span>
\ngift to\t the entire  exclusion of  the father he had not, on
\nthe facts,  thenceforth retained  it to\t the  father  entire
\nexclusion, for under the partnership agreement and what ever
\nforce and  effect might\t be given  to that  part of it which
\ngave a\tpartner the sole and free right to deal with his own
\nproperty, the  partners and  each of them were in possession
\nand enjoyment  of the  property so  long as  the partnership
\nsubsisted. The\tJudicial Committee  observed that  where the
\nquestion was  whether the  donor had  been entirely excluded
\nfrom the  subject matter  of the  gift, that  was the single
\nfact to\t be determined,\t and, if he had not been so excluded
\nthe eye\t need look  no\tfurther\t to  see  whether  his\tnon-
\nexclusion had  been advantageous  or otherwise to the donee.
\nIn its opinion it was irrelevant that the father gave (if he
\ndid give)  full consideration  for his\tright as a member of
\nthe partnership\t to possession and enjoyment of the property
\nthat he had given to his son. Inter alia two or three points
\nemerge clearly from the decision that need to be emphasised:\n<\/p>\n
(a) there  was initially  an outright gift of the property –
\nnot of\tthe property  shorn of\tany rights, (b) the deceased
\ndonor was  not in  fact excluded from the property, but as a
\npartner\t enjoyed   rights  over\t it  and  (c)  that  it\t was
\nimmaterial  that  the  donor  gave  full  consideration\t for
\nenjoying his  rights over  the property as a partner. It was
\nthese aspects  that brought  the gifted\t property within the
\nmischief of  the taxing statute. The other decisions of this
\nCourt on  which Counsel\t for  the  revenue  has\t relied\t are
\nclearly cases  falling within  this category  and hence\t the
\nratio of chick’s case was correctly applied in each of them.\n<\/p>\n
     On the  other hand in Munro’s case the facts were these
\nM, who\twas the\t owner of  35,000 acres of land in New South
\nWales on  which he  carried on\tthe business  of a  grazier,
\nverbally  agreed   with\t his   six  children  in  1909\tthat
\nthereafter the business should be carried on by him and them
\nas partners under a partnership at will and the business was
\nto be  managed solely by M and each partner was to receive a
\nspecified share\t of profits.  In  1913,\t by  six  registered
\ntransfers M  transferred by  way of gift all his right title
\nand interest in the portions of his land to each of his four
\nsons and to trustees for each of his two daughters and their
\nchildren. The  evidence showed that the transfers were taken
\nsubject to  the partnership  agreement and  on understanding
\nthat  any   partner  could   withdraw  and   work  his\tland
\nseparately. In 1919 M and his
\n361<\/span>
\nchildren entered  into a formal partnership agreement, which
\nprovided that  during the  life time  of M no partner should
\nwithdraw from the partnership. On the death of M in 1929 the
\nland transferred  in 1913  was\tincluded  in  assessing\t his
\nestate to death duties under the Stamp Duties Act, 1920-1931
\n(N.W.W.), on  the ground that they were gifts dutiable under
\ns.102(2a) of  that  Act.The  Privy  Council  held  that\t the
\nproperty comprised  in the  transfers was the land separated
\nfrom the rights therein belonging to the partnership and was
\nexcluded by  the terms\tof s.102,  sub-s  2(a),\t from  being
\ndutiable,  because  the\t donees\t had  assumed  and  retained
\npossession thereof,  and any  benefit remaining in the donor
\nwas referable  to the  partnership agreement of 1909 and not
\nto the\tgifts. It  was urged that the transfer deeds did not
\nmention the  rights of\tthe partnership\t and therefore under
\ns.42 of\t the Real  Property Act, 1900 (N.S.W.) the transfers
\ngave a\ttitle  free  from  those  rights  but  the  Judicial
\nCommittee  negatived  the  contention  on  the\tground\tthat
\nsubstance of the transactions and not the forms employed had
\nto be  ascertained and\tso ascertained\tthe substance showed
\nthat the  transfers were  shorn of  rights in  favour of the
\npartnership and\t the benefit  remaining\t in  the  donor\t was
\nreferable to such rights of the partnership subject to which
\nthe  gifts   had  been\tmade.  Thus  this  decision  clearly
\nenunciates the\tprinciple that\tif the subject matter of the
\ngift  is  property  shorn  of  certain\trights\tand  if\t the
\npossession or  enjoyment of some benefit in that property by
\nthe donor is referable to those rights, i.e. rights shorn of
\nwhich the  property is gifted then the subject matter of the
\ngift will not be deemed to pass on the death of the deceased
\ndonor. The  ratio of  this decision  has been  followed\t and
\napplied by  this Court\tin Ramachandra\tGounder’s case, N.R.
\nRamarathanam’s\t case,\t  R.V.\t Vishwanathan’s\t  case\t and
\nKamlavati’s case (supra).\n<\/p>\n
     Having regard  to the  undisputed facts and facts found
\nby the High Court it seems to us clear that the instant case
\nfalls within  the  principle  enunciated  in  Munro’s  case.
\nAdmittedly the\tdeceased donor\twas a partner in the banking
\nfirm of\t M\/s Dayaram Surajmal, whereas the minor donees were
\nnever admitted\tto the\tbenefits of the partnership firm. An
\nextract of  account filed  by the  assessee before  the High
\nCourt brought  out the\tprocedure followed for effecting the
\ntransaction  in\t  question  the\t deceased  had\this  account
\ncomprising his capital contribution and advances made by him
\nto the firm; he
\n362<\/span>
\ndrew a\tcheque for  Rs.3 lakhs\tagainst his account with the
\nfirm which  was made out in the name of the firm as a result
\nwhereof the  firm could\t pay itself  but the  account of the
\ndeceased was  debited with  the sum of Rs.3 lakhs and on the
\nsame day  simultaneously three\taccounts of the minor donees
\nwith the  said firm  were credited with the sum of Rs.1 lakh
\neach. The Tribunal as well as the High Court found as a fact
\nthat when  the cheque  was issued  oral instructions must be
\npresumed to  have been given by the deceased to the firm for
\ncrediting the  three accounts  of the  three minors  without
\nwhich the  firm could  not make\t such credit  entries.\tFrom
\nthese facts  the High Court rightly inferred that “in effect
\nthe cheque  was issued\tin favour  of the  firm, but for the
\nbenefit of  the minors”\t and that  “in such  a situation the
\nfirm shall  be treated\tas a trustee or an agent holding the
\nmoney for  the benefit of the minors.” Clearly, in this view
\nof the\tmatter, the  transaction in  question amounted\tto a
\ngratuitous transfer of an actionable claim to which s.137 in
\npreference to  s.130 of the Transfer of Property Act applied
\nand there  was a  valid gift  thereof to  the minor  donees.
\nFurther undisputed  facts were that the amount of Rs.3 lakhs
\ndid not go out of the firm but on being transferred from the
\naccount of  the deceased to the accounts of the minor donees
\ncontinued to  remain with  the firm  for being\tused for the
\nfirm’s business;  in fact  the partnership continued to have
\nthe benefit  thereof even  after the death of the donor till
\nthe firm  was dissolved.  Obviously  the  substance  of\t the
\ntransaction was\t that the gift was of an actionable claim of
\nthe value  of Rs.3 lakhs out of the donor’s right, title and
\ninterest as  a whole  in the  firm and\tas such was shorn of
\ncertain rights\tin favour  of the partnership and therefore,
\nthe possession\tor enjoyment  of the benefit retained by the
\ndonor as a partner of the firm must be regarded as referable
\nto partnership\trights and  had nothing\t to with  the gifted
\nproperty.  In\tour  view   the\t transaction   in  question,
\ntherefore, clearly  fell within the ratio of the decision in
\nMunro’s case  and the  High Court was right in coming to the
\nconclusion that to such transaction s.10 was inapplicable.\n<\/p>\n
     We would  like to\tpoint out  that\t the  facts  of\t the
\ninstant case  are almost  similar to the facts that obtained
\nin Controller of Estate Duty v. Jai Gopal Mehra,<\/a> a companion
\nmatter that  was decided  and disposed of by this Court by a
\ncommon judgment\t in Kamlavati’s\t case (supra)  where it\t was
\nheld
\n363<\/span>
\nthat the  transaction of  gift was  one to  which  s.10\t was
\ninapplicable.\n<\/p>\n
     In the  result the appeal is dismissed with no order as
\nto costs.\n<\/p>\n
M.L.A.\t\t\t\t\t   Appeal dismissed.\n364<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Controller Of Estate Duty, A.P., … vs Smt. Godavari Bai on 18 February, 1986 Equivalent citations: 1986 AIR 631, 1986 SCR (1) 348 Author: V Tulzapurkar Bench: Tulzapurkar, V.D. PETITIONER: CONTROLLER OF ESTATE DUTY, A.P., HYDERABAD Vs. RESPONDENT: SMT. GODAVARI BAI DATE OF JUDGMENT18\/02\/1986 BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. MUKHARJI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-124547","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nController Of Estate Duty, A.P., ... vs Smt. 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