{"id":196825,"date":"1980-10-10T00:00:00","date_gmt":"1980-10-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-controller-of-estate-duty-vs-aloke-mitra-on-10-october-1980"},"modified":"2016-05-22T11:17:05","modified_gmt":"2016-05-22T05:47:05","slug":"the-controller-of-estate-duty-vs-aloke-mitra-on-10-october-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-controller-of-estate-duty-vs-aloke-mitra-on-10-october-1980","title":{"rendered":"The Controller Of Estate Duty, … vs Aloke Mitra on 10 October, 1980"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Controller Of Estate Duty, … vs Aloke Mitra on 10 October, 1980<\/div>\n
Equivalent citations: 1981 AIR 102, \t\t 1981 SCR (1) 943<\/div>\n
Author: A Sen<\/div>\n
Bench: Sen, A.P. (J)<\/div>\n
           PETITIONER:\nTHE CONTROLLER OF ESTATE DUTY, LUCKNOW\n\n\tVs.\n\nRESPONDENT:\nALOKE MITRA\n\nDATE OF JUDGMENT10\/10\/1980\n\nBENCH:\nSEN, A.P. (J)\nBENCH:\nSEN, A.P. (J)\nVENKATARAMIAH, E.S. (J)\n\nCITATION:\n 1981 AIR  102\t\t  1981 SCR  (1) 943\n 1981 SCC  (2) 121\n\n\nACT:\n     The Estate\t Duty Act,  1953-S. 5  sub-s. (1)  and s. 6-\nInter relation\tof-Whether  property  held  by\ta  benamidar\npasses upon  the death\tof the\treal  owner  and  should  be\nbrought to  charge under sub-s. (1) of s. 6 of the Act or is\ndeemed to pass under s. 6.\n     Words & Phrases-Benami-Benamidar-Meaning of.\n\n\n\nHEADNOTE:\n     One M carried on the business of printer and publisher.\nIn 1953\t his brother-in-law  alongwith\tsome  other  persons\nfloated two  companies a  publishing  firm  and\t a  printing\npress. Under  an agreement  dated May  29, 1953\t M agreed to\ntransfer his business to the newly floated companies, and on\nJanuary 24, 1954 he wrote letters intimating that the shares\nin the\tcompanies be  allotted to  his wife, his 3 sons, his\nbrother-in-law and  an ex-employee.  The companies  allotted\nthe shares accordingly. 502 shares were allotted to M in his\nown name  in the  publishing firm  and\t225  shares  in\t the\nprinting  press.  Of  the  remaining,  2002  shares  in\t the\npublishing firm\t and 1602  shares in the printing press were\nallotted to M and his nominees. M died on February 11, 1957.\nOn his\tdeath the respondent, the accountable person filed a\nreturn of  estate duty in which he included the value of the\n502 shares  in the  publishing firm  and 225  shares in\t the\nprinting press.\n     The Assistant  Controller of Estate Duty did not accept\nthis part  of the return and included the 2002 shares in the\npublishing firm\t and  1602  shares  in\tthe  printing  press\nstanding in  the name  of the  wife of\tthe deceased,  his 3\nsons, brother-in-law  and the  ex-employee, since  they were\nholding these shares benami, and included the value of these\nshares in the principal value of the estate of the deceased.\n     In appeal,\t the Central  Board  of\t Direct\t Taxes,\t the\nAppellate Tribunal affirmed this order. It observed that the\nmere fact  that the subject-matter was the shares in the two\ncompanies would\t not throw  any more  onus of  proof on\t the\nAssistant Controller  than would  be thrown  if the subject-\nmatter was  some other\tproperty. When money was paid by the\ndeceased, it  was for  the accountable\tperson to  prove the\ngift. The  deceased had\t clearly mentioned  in\this  letters\ndated January  24, 1954 to the two companies that the shares\nshould be  issued and  allotted in  the names of the persons\nnominated by  him. If  the  deceased  intended\tto  make  an\noutright gift of the shares, he would have very\n944\nwell said  so in  the letters. There being no presumption of\nadvancement, the  mere fact  that the shares were got issued\nin their  names without making any indication of gift, would\nnot make the nominees recipients of any gift.\n     The High  Court  answered\tthe  reference\tagainst\t the\nappellant and in favour of the accountable person. Following\nthe decisions  of the Andhra Pradesh High Court in Shantabai\nJadhav v.  Controller of  Estate Duty  (1957) 31  ITR 28 and\nSmt. Denabai  Bomab Shah v. Controller of Estate Duty (1964)\n51 ITR (ED) 1 it observed that since the shares stood in the\nname of the wife and sons etc., benami for the deceased, the\ndeceased had  no power to transfer since he had not obtained\na release  from the  benamidars or  a  declaration  from  an\nappropriate court.  As the deceased, remained incompetent to\ntransfer the  shares till  his death,  the property  in them\nwould not  be deemed  to pass  upon his\t death by  reason of\nsection 6  and therefore,  they would not be included in the\nestate of the deceased under section 5(1) of the Act.\n     Allowing the appeal, to this Court\n^\n     HELD: 1. The liability to pay estate duty under section\n5(1) of\t the Act arises upon the death of the real owner and\nnot of the benamidar, who is merely an ostensible owner. The\ntest lies  in whether upon the death of the benamidar, there\nwould be incidence of liability to estate duty. [961B]\n     2. The  finding being that the shares were purchased by\nthe deceased  benami in\t the name  of his wife and sons, the\nreal ownership\tof the\tproperty was  vested in the deceased\nwho was entitled to deal with the same as if it were his own\nand the\t benamidars held it in trust under section 82 of the\nTrust Act, 1882 for the benefit of the deceased. The estate,\ntherefore, belonged  to the  deceased who  died possessed of\nthe same  and under section 5(1) of the Act the entire value\nof the\tshares was  includible in the principal value of the\nestate of the deceased on his death. [961C-E]\n     3. (i) The Estate Duty Act, 1953 imposes a tax upon the\nprincipal value\t of all\t properties, settled  or not settled\npassing on  death or deemed to pass on death. Estate duty is\nchargeable at  percentage rates rising with the value of the\nestate on  all property passing on death, including property\nof which  the deceased\twas competent  to dispose  and gifts\nmade within  limited period  before death. Primary liability\nfalls on the deceased's estate. [950H; 951A]\n     (ii) The  scheme of  the Act is two fold. Firstly there\nare properties\twhich pass on the death of a person. Section\n5(1) imposes  duty  on\ttheir  value.  Secondly,  there\t are\nproperties in which the deceased had an interest or power of\nappointment and\t which really  do not pass on his death. The\nscheme of  the Act  is to  impose duty\ton the value of such\nproperties also.  In the  second class\twill fall provisions\nlike sections  6, 7,  8, 9 and 10. The Act creates a fiction\nof law\tto declare  that the  properties mentioned  in those\nsections will  be deemed  to pass  on the death of a person,\nthough they do not 'pass' in fact. [957D-E]\n     (iii) The object of section 6 is to catch properties in\nthe net\t of section  5(1) which\t do not\t really pass  on the\ndeath of  a person.  For instance,  property comprised\tin a\nrevocable gifts\t is property which the donor is competent to\ndispose of  whether the\t gifts is revoked or not and will be\ncovered by section 6. Similarly property in respect of which\nthe deceased  had the  power of\t appointment will  also fall\nwithin section 6. [957H; 958A]\n     O.S. Chawla  v. Controller of Estate Duty (1973) 90 ITR\napproved.\n945\n     4. In  applying the  Act to any particular transaction,\nregard must be had to its substance, that is, its true legal\neffect, rather\tto the\tform in\t which it  is  carried\tout.\n[958B]\n     5. By no rule of construction can the operation of sub-\nsection (1)  of section\t 5 of  the Act\tbe curtailed  by the\noperation of section 6. It is in addition to or supplemental\nof the\tprovisions of sub-section (1) of section 5, which is\nthe charging section. [951E]\n     In the  instant case,  it has been established that the\ndeceased was  the real\towner of  the shares.  The ownership\nwhich the deceased had in the shares passed on his death and\nmust be\t brought to  charge under sub-section (1) of section\n5. [958C]\n     Smt. Denabai  Bomab Shah  v. Controller  of Estate Duty\n(1967) 66 ITR 385 and Smt. Shantabai Jadhav v. Controller of\nEstate Duty (1964) 51 ITR (ED) 1 disapproved.\n     6. (i)  The provisions  of sections  5 and 6 of the Act\nare somewhat  similar to  those of  sections 1\tand 2 of the\nFinance Act, 1894 in England. [955F]\n     (ii) The precise relationship between sections 1 and 2,\nbefore the  law was amended in 1969, was a question on which\njudicial opinion  fluctuated widely.  For over\tsixty  years\nthey were  regarded as\tmutually  exclusive  and  having  in\ndependent fields  of operation,\t the view  was that property\ncould not  be liable  to duty  concurrently. In\t a situation\nwhere both  sections 1\tand 2  might apply,  section 1\ttook\npriority and excluded liability. [952D-E]\n     Earl  Cowley  v.  Inland  Revenue\tCommissioners,\tL.R.\n[1899] A.C. 198, Attorney General v. Milne, L.R. [1914] A.C.\n765, Nevill  v. Inland Revenue Commissioners, LR [1924] A.C.\n385 referred to.\n     (iii) In Public Trustee v. Inland Revenue Commissioners\n(Re Ambody)  LR [1960]\tAC 398 the House of Lords struck the\ndiscordant note,  holding that\tsection 1 imposed the charge\nin general  terms and  section 2 by exclusion and inclusion,\ndefined area of that charge. In Weir's Settlement Trusts, Re\nMc Pherson  v. Inland  Revenue Commissioners LR [1971] Ch.D.\n145 the\t Court of  Appeal resolved  the\t doubts\t as  to\t the\nrelationship of these two sections. [954C; G, 955A]\n     7. When  a property  is purchased\tby a  husband in the\nname of\t his wife  or by a father in the name of his son, it\nmust be presumed that they are benamidars, and if they claim\nit as  their own  by alleging that the husband or the father\nintended to  make a  gift of  the property to them, the onus\nrests upon them to establish such a gift. When the benamidar\nis in  possession of  the property, standing in his name, he\nis in  a sense\tthe trustee for the real owner; he is only a\nname-lender or an alias for the real owner. [1958F; 959A]\n     Gopeekrist Gosain\tv. Gungapersaud\t Gosain (1854) 6 MIA\n53, Sura Lakshmiah Chetty v. Kothandarama Pillai L.R. [1924-\n25] 52\tIA 286,\t Shree Meenakshi Mills Ltd. C.I.T. (1957) 31\nITR 28 referred to.\n946\n     8. A  benamidar has  no interest at all in the property\nstanding in  his name A benamidar is an ostensible owner and\nif a  person purchases\tfrom a\tbenamidar,  the\t real  owner\ncannot recover unless he shows that the purchaser had actual\nor constructive\t notice of  the real title. But from this it\ndoes not  follow that  the benamidar  has real\ttitle to the\nproperty, he is merely an ostensible owner thereof. [960E]\n     Mayne Hindu Law 11th Edn. p. 953 referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1712 of
\n1973.\n<\/p>\n
     From the  Judgment and  Order dated  20-5-1971  of\t the
\nAllahabad High\tCourt in  Estate Duty  Reference  No.  95\/66
\nconnected with Estate Duty Reference No. 78\/69.\n<\/p>\n
     S.C. Manchanda, K.C. Dua and Miss A. Subhashini for the
\nAppellant.\n<\/p>\n
     P.K. Mukherjee and Pramod Swarup for the Respondent.
\n     The Judgement of the Court was delivered by
\n     SEN J.-This appeal on certificate under s. 65(1) of the
\nEstate Duty Act, 1953 (hereinafter referred to as ‘the Act’)
\narises from a judgment of the Allahabad High Court delivered
\non a  case stated  under s.  64 of the Act by which the High
\nCourt answered\ttwo of the questions against the accountable
\nperson and  in favour  of the  Controller of Estate Duty but
\nthe third  in the negative, against the Controller of Estate
\nDuty and  in favour  of the  accountable person.  We are not
\nconcerned with\tthe first two questions, but only the third,
\nwhich reads:\n<\/p>\n
\t  “Assuming  that   the\t shares\t in  dispute  really
\n     belonged to  Sri K.M.  Mitra  deceased,  whether  those
\n     shares in\tthe circumstances  of the  case\t constituted
\n     property which  passed on\tthe death  of Sri K.M. Mitra
\n     for the purposes of section 5 of the Estate Duty Act.”<\/p><\/blockquote>\n
     The facts\tgiving rise  to the reference are these: The
\nlate Sri  K.M. Mitra  died on  February 11,  1957 leaving  a
\nlarge and  extensive estate.  On his  death  his  son  Aloke
\nMitra, the accountable person, filed a return of estate duty
\nvaluing\t the  estate  of  deceased  at\tRs.  3,75,235.\tThis
\nincluded 502  shares of\t Rs. 100\/-  each in  Mitra Prakashan
\nPvt. Ltd.  and 225  shares of  Rs. 100\/-  in Maya Press Pvt.
\nLtd. held  by the  deceased.  The  Assistant  Controller  of
\nEstate Duty  did not  accept this  part of  the\t return\t and
\nincluded 2002  shares in  Mitra Prakashan Pvt. Ltd. and 1602
\nshares in  Maya Press Pvt. Ltd. standing in the name of Smt.
\nN. Mitra, wife of the deceased,
\n947<\/span>
\nand his\t three sons,  Aloke Mitra,  Ashoke Mitra  and Deepak
\nMitra, brother-in-law  B.N. Ghosh  and an  ex-employee, R.N.
\nMisra since  they  were\t holding  these\t shares\t benami.  He
\naccordingly included  the  value  of  these  shares  in\t the
\nprincipal value of the estate of the deceased. His order was
\naffirmed in  appeal by\tthe Central  Board of  Direct Taxes,
\nthat is,  the Appellate\t Tribunal. Under s. 64(1) of the Act
\nthe Appellate  Tribunal referred  the question\twhether\t the
\nshares allotted\t to the\t wife of the deceased as his nominee
\nor as benamidar, were, as from the commencement of the Hindu
\nSuccession Act,\t 1956 held by her as a full owner thereof by
\nvirtue of provisions of s. 14 of that Act.\n<\/p>\n
     According to  the High Court, the said question did not
\nat all arise. On the finding that the transaction was benami
\nand that  the deceased was the real owner of the shares, the
\nwife must  be held  to have  no interest  or  title  to\t the
\nshares. She was merely a benamidar or name-lender. Since she
\nhad no interest at all, the provisions of s. 14 of the Hindu
\nSuccession Act\twere not  attracted as she was not possessed
\nof any right or title.\n<\/p>\n
     The material  facts of  the case may now be stated. The
\ndeceased carried  on the  business of  printer and publisher
\nunder the  name and  style  of\tMaya  Press.  In  1953,\t his
\nbrother-in-law, B.N.  Ghosh  alongwith\tsome  other  persons
\nfloated two  companies, Mitra  Prakashan Pvt.  Ltd. and Maya
\nPress Pvt.  Ltd. Under\tan agreement  dated May 29, 1953 the
\ndeceased agreed to transfer his publishing business to Mitra
\nPrakashan Pvt.\tLtd. for a consideration of Rs. 2,07,500 and
\nthe printing  business to  Maya\t Press\tPvt.  Ltd.  for\t Rs.
\n1,64,800. It was agreed that the consideration would be paid
\nby Mitra  Prakashan Pvt.  Ltd. in  the form  of cash  to the
\nextent of  Rs. 7,500\/-\tand the\t balance by  allotting\t2000
\nfully paid  up shares  of the value of Rs. 100\/- each to the
\ndeceased or  his nominees.  The other  company, namely\tMaya
\nPress Pvt.  Ltd. agreed\t to pay\t Rs. 4,800\/- in cash and the
\nbalance of  Rs. 1,60,000  in the  form of 1600 fully paid up
\nshares of  the value of Rs. 100\/- each to be allotted in the
\nname of\t the deceased  or his nominees. In pursuance of this
\nagreement, the business of Maya Press was transferred by the
\ndeceased on  July 1,  1953 to  the two companies. On January
\n24, 1954  the deceased\twrote to  the two  companies letters
\nintimating that\t the shares  be allotted to his wife Smt. N.
\nMitra, three  sons Aloke  Mitra, Ashoke Mitra, Deepak Mitra,
\nbrother-in-law B.N.  Ghosh and and-employee, R.N. Misra. The
\ncompanies allotted  the shares accordingly. They in addition
\nallotted two  more shares  to the deceased. Thus, 502 shares
\nwere held by the deceased in his own name in Mitra Prakashan
\nPvt. Ltd. and 225 shares in Maya Press
\n948<\/span>
\nPvt. Ltd.  The rest were held by his wife, sons, brother-in-
\nlaw and\t an ex-employee.  It has  been found  that the total
\nnumber of shares issued by the two companies was 2006 by the
\nMitra Prakashan\t Pvt. Ltd.  and 1605 by Maya Press Pvt. Ltd.
\nOut of\tthese 2002 and 1602 shares respectively were held by
\nthe deceased  and his nominees. The deceased by transferring
\nhis personal printing and publishing business to the two new
\ncompanies had  thus become  through himself  or his nominees
\npractically the\t exclusive owner  of these two companies. It
\nis an  admitted fact  that the\tdeceased supplied the entire
\nconsideration for the purchase of these 2002 and 1602 shares
\nand that  his wife,  sons, brother-in-law or the ex-employee
\ndid not make any contribution for their acquisition.\n<\/p>\n
     On these facts, both the Assistant Controller of Estate
\nDuty as\t well as  the Appellate Tribunal held that the share
\nscrips standing\t in the name of the wife of the deceased and
\nhis sons, brother-in-law and the ex-employee really belonged
\nto the deceased as they were mere benamidars and, therefore,
\nincluded the value of the shares held by the deceased in the
\nname of his wife and sons etc. in the principal value of the
\nestate passing\ton his\tdeath. The  true legal effect of the
\nfinding of  the Appellate  Tribunal is\tthis: Smt. N. Mitra,
\nwife of the deceased, his three sons, brother-in-law and the
\nex-employee held  the shares  benami for  the benefit of the
\ndeceased.  They\t were,\ttherefore,  the\t benamidars  of\t the
\ndeceased.\n<\/p>\n
     While upholding  the order of the Assistant Controller,
\nthe Central  Board of  Direct Taxes  observed that  the mere
\nfact that  the subject-matter  was the\tshares\tin  the\t two
\ncompanies would\t not throw  any more  onus of  proof on\t the
\nAssistant Controller  than would  be thrown  if the subject-
\nmatter was  some other\tproperty. When money was paid by the
\ndeceased, it  was for  the accountable\tperson to  prove the
\ngift. The  deceased had\t clearly mentioned  in\tthe  letters
\ndated January  24, 1954 to the two companies that the shares
\nshould be  issued and  allotted in  the names of the persons
\nnominated by  him. If  the  deceased  intended\tto  make  an
\noutright gift  of these shares, he would have very well said
\nso  in\t the  letters.\t There\tbeing\tno  presumption\t  of
\nadvancement, the  mere fact  that the shares were got issued
\nin their  names without making any indication of gift, would
\nnot make the nominees recipients of any gift. Using of names
\nof benamidars  for holding  of shares  in companies  was  as
\ncommon as  for any  other type\tof property.  As regards the
\nenjoyment of  the income  of these  shares, it observed that
\nthere was  no clear  evidence to  show that  the  money\t was
\nactually  used\t by  the  nominees.  It\t appeared  that\t the
\ndividends were only credited by book entry to the
\n949<\/span>
\npersonal accounts  of the  deceased,  Aloke  Mitra  and\t the
\ndeceased’s wife\t the account of the deceased’s wife was also
\ncredited with  dividends in  the names\tof others than Aloke
\nMitra. There  was nothing  to show  that before the death of
\nthe deceased  these  amounts  were  actually  withdrawn\t and
\nutilised by  the persons  to  whom  they  were\tsupposed  to
\nbelong. Whatever  was done  after the  death of the deceased
\nmay, by\t agreement between  the heirs, have been adjusted in
\nthe allocation\tof other  assets, and obviously could not be
\nof any\tlegal effect in determining the question whether the
\nshares belonged to the deceased.\n<\/p>\n
     As already\t stated, the  only question  of law  in\t the
\nopinion of  the Appellate  Tribunal which  could be referred
\nunder s.  64(1) of  the Act, was whether the shares allotted
\nto the\twife of\t the deceased as his nominee or as benamidar
\nwere, as  from the commencement of the Hindu Succession Act,
\n1956 held  by her  as full  owner thereof  by virtue  of the
\nprovisions of  s. 14  of that Act. But it declined to make a
\nreference on  the other\t questions, holding that the finding
\nthat the shares were held by the deceased in the name of his
\nwife and  sons etc. benami, was a finding of fact and it did
\nnot give rise to any question of law. The accountable person
\nbeing dissatisfied  moved the  High Court under s. 64(3) and
\nit  directed   the  Tribunal  to  draw\tup  a  supplementary
\nstatement of  the case\tand refer two other questions of law
\nsaid to\t arise from  its order.\t When the  reference came up
\nbefore the High Court, it declined to answer questions other
\nthan those  which were\tquestions of  law. It  refused to be
\ndrawn into  the question  of benami, which was purely one of
\nfact, and  not one  of mixed  law and  fact and,  therefore,
\nfollowing the  decision of  this Court\tin  Shree  Meenakshi
\nMills Ltd.  v. C.I.T.  held that the finding was not open to
\nreview under s. 64(1) of the Act.\n<\/p>\n
     In answering  the reference in the negative and against
\nthe  Controller\t of  Estate  Duty,  and\t in  favour  of\t the
\naccountable person,  the High  Court merely  observed ‘As at
\npresent advised’  and preferred\t to follow the two decisions
\nof the Andhra Pradesh High Court in Smt. Shantabai Jadhav v.
\nController of  Estate Duty  and Smt.  Denabai Bomab  Shah v.
\nController of  Estate Duty  taking a  view to  the contrary.
\nThere is  no discussion\t in the judgment at all and it seems
\nthat its  attention was\t not drawn  to s.  5(1) of  the Act.
\nFollowing the  view in Smt. Shantabai Jadhav’s case and Smt.
\nDenabai Bomab Shah’s case the High Court observed that since
\nthe shares
\n950<\/span>
\nstood in  the name  of the wife and sons etc. benami for the
\ndeceased, the deceased had no power to transfer since he had
\nnot obtained  a release from the benamidars or a declaration
\nfrom an\t appropriate court. On this wrongful assumption, the
\nHigh Court  held that  the deceased  remained incompetent to
\ntransfer the  shares till his death, and so, the property in
\nthem would not be deemed to pass upon his death by reason of
\ns. 6  and, therefore, they were not includible in the estate
\nof the deceased under s. 5(1) of the Act.\n<\/p>\n
     In Controller  of Estate Duty, U.P. v. T.N. Kochhar the
\nHigh Court following the judgment under appeal, observed:\n<\/p>\n
\t  “It is well-settled that the property which stands
\n     benami in\tthe name  of another  is one  in respect  of
\n     which the beneficial owner has no competency to dispose
\n     of. Before\t he can dispose of such a property he has to
\n     acquire a declaration from the appropriate court of law
\n     releasing the property in his favour.”<\/p><\/blockquote>\n
     The High  Court seems  to assume  that  there  is\tsome
\ninterrelation between  ss. 5  and 6. It has held that though
\nthe shares in question really belonged to the deceased, they
\nwould not,  on the  facts and  in the  circumstances of\t the
\ncase, constitute property which ‘passed’ on the death of the
\ndeceased for  the purpose  of s.  5(1) of  the Act since the
\nshares stood  in the  name of  wife and sons etc. benami for
\nthe deceased,  but he  had only\t beneficial interest therein
\ninasmuch as  the deceased  was at  the time of his death not
\ncompetent to  dispose of  the shares  and they\tcould not be
\n‘deemed to pass’ under s. 6 of the Act.\n<\/p>\n
     The main  question involved in the appeal is whether in
\nthe case  of a benami transaction, the value of the property
\nheld by\t a benamidar passes upon the death of the real owner
\nand is\tincludible in  the estate of the deceased under s. 5
\nof the\tAct, or being so held by the benamidar, it cannot be
\ndeemed to  pass on his death because of s. 6 of the Act and,
\ntherefore, the\tvalue of such property cannot be included in
\nthe principal  value of\t the estate  of the  deceased.\tThat
\ndepends upon  the precise  effect of  s. 5(1)  and s.  6 and
\ntheir relation\tship to\t one  another  namely,\twhether\t the
\nchargeability of  estate duty  under s.\t 5(1) of the Act, is
\nlimited and controlled by s. 6.\n<\/p>\n
     The Estate\t Duty Act,  1953  imposes  a  tax  upon\t the
\nprincipal value\t of all\t properties, settled or not settled,
\npassing on  death or deemed to pass on death. Estate duty is
\nchargeable at  percentage rates rising with the value of the
\nestate on all property passing on
\n951<\/span>
\ndeath,\tincluding   property  of   which  the  deceased\t was
\ncompetent to  dispose and  gifts made  within limited period
\nbefore death.  Primary liability  falls\t on  the  deceased’s
\nestate.\n<\/p>\n
     The charging  section is  sub-s.  (1)  of\ts.  5  which
\nprovides  that\t in  case   of\ta  person  dying  after\t the
\ncommencement of\t the Act,  estate duty\tis leviable  on\t the
\ncapital value  of all property, settled or not settled which
\n‘passes’ on  death at  the rates fixed in accordance with s.\n<\/p>\n
35. That  is followed  by a  group of sections, ss. 6 to 15,
\nwhich relate  to the levy of estate duty on properties which
\nby the\tAct are ‘deemed to pass’ on death. For the avoidance
\nof doubt,  it is  provided  by\tsub-s.\t(3)  of\t s.  3\tthat
\nreferences in  the Act\tto property  passing on\t death of  a
\nperson\tshall\tbe  construed  as  including  references  to
\nproperty deemed\t to pass  on the  death of  such person. The
\nexpression ‘property  passing on  death’ is  defined  in  s.
\n2(16) to  include property  passing immediately on death. In
\ngeneral, the word ‘passes’ may be taken as meaning ‘changing
\nhands on death’ regardless of its destination.\n<\/p>\n
     Section 6 of the Act, upon which the controversy turns,
\nprovides:\n<\/p>\n
\t  “6. Property which the deceased was at the time of
\n     his death\tcompetent to  dispose of  shall be deemed to
\n     pass on his death.”\n<\/p><\/blockquote>\n
By no  rule of\tconstruction can the operation of sub-s. (1)
\nof s. 5 of the Act be curtailed by the operation of s. 6. It
\nis in addition to or supplemental of, the provisions of sub-
\ns. (1) of s. 5, which is the charging section.\n<\/p>\n
     As a  matter of  construction, two\t views are possible.
\nOne view is that the two sections are mutually exclusive and
\nthey have independent fields of operation. Whenever property
\nchanges hands on death, the State is entitled to step in and
\ntake a\ttoll of\t the property as it passed without regard to
\nits destination\t or to\tthe degree  of relationship, if any,
\nthat may  have subsisted between the deceased and the person
\nor persons  succeeding. Section\t 5(1) gives  effect to\tthat
\nprinciple and  it imposes a duty called estate duty upon the
\nprincipal value\t of all\t property, settled  or not  settled,
\nwhich passes  on death. Section 6 does not apply to property
\nof which  the deceased was competent to dispose of and which
\npasses on  his death; it applies only to property which does
\nnot pass  on his  death but  of which  he was  competent  to
\ndispose. Sections  5(1) and  6 being mutually exclusive, the
\napplication of\ts. 5 accordingly precludes recourse to s. 6.
\nThe other  and the  better view\t appears to  be that s. 5(1)
\nalone
\n952<\/span>
\nis capable  of imposing\t a charge  of duty and where both s.
\n5(1) and  s. 6\tapply, the  property would still be dutiable
\nunder both  concurrently. Section 6 is merely subsidiary and
\nsupplementary and  it declares that the expression ‘property
\npassing on  the death  of the  deceased’ shall be ‘deemed to
\ninclude property which the deceased was competent to dispose
\nof’. When  s. 6\t has brought  property within  the charge of
\nduty ‘either  alone’ as in the case of competency to dispose
\nof under  s. 6,\t which could  not be  supposed to  ‘pass  on
\ndeath’ or concurrently with s. 5, its function is at an end.\n<\/p>\n
     In England, the Finance Act, 1894 (57 & 58 Vict. c. 30)
\nimposed by  s. 1  estate  duty\t‘upon  the  principal  value
\nascertained as\thereafter provided  of all property, real or
\npersonal, settled  or not settled which passed on the death’
\nof a  person dying  after the commencement of the Act. By s.
\n2,  sub-s.  (1)\t ‘property  passing  on\t the  death  of\t the
\ndeceased’  shall   be  deemed\tto  include   categories  of
\nproperties  specified\ttherein.  The  precise\trelationship
\nbetween ss. 1 and 2, before the law was amended in 1969, was
\na question  on which judicial opinion fluctuated widely. For
\nover 60\t years, they were regarded as mutually exclusive and
\nhaving independent  fields of  operation; the  view was that
\nproperty could\tnot be\tliable to  duty concurrently.  In  a
\nsituation where both ss. 1 and 2 might apply, section 1 took
\npriority and  excluded s.  2 liability.\t It was laid down by
\nthe House  of Lords, in a series of cases, that section 2(1)
\nwas not\t a definition  section, explanatory  of s. 1, but an
\nindependent section  operating outside\tthe field  of s.  1:
\nEarl  Cowley  v.  Inland  Revenue  Commissioners,  Attorney-
\nGeneral v. Milne, Nevill v. Inland Revenue Commissioners. In
\nEarl Cowley’s case the House of Lords reversing the decision
\nof the Court of Appeal, held that if the case fell within s.
\n1, it went out of the purview of s. 2. Lord Macnaghten after
\nobserving that\ts. 1 contained the pith and substance of the
\nenactment, stated:\n<\/p>\n
\t  “It is  comprehensive, broad\tand  clear…..\t The
\n     first question as it seems to me the question that lies
\n     at the  very threshold  of our  inquiry is simply this:
\n     Under which  section of  the Finance  Act 1894 does the
\n     present case  fall? Is  it the ordinary and normal case
\n     of property  passing on  death, or\t is it\tone of those
\n     exceptional cases\tin which property is deemed to pass,
\n     though there is no passing of property in fact? Does it
\n     come under s. 1 or under s. 2?”\n<\/p><\/blockquote>\n
953<\/span><\/p>\n
After differing from the Court of Appeal, he went on to say:\n<\/p>\n
\t  “What the  Act has  in view  for  the\t purpose  of
\n     taxation is  property passing  on death,… Now, if the
\n     case falls within s. 1 it cannot also come within s. 2.
\n     The two sections are mutually exclusive.
\n\t  In my opinion the two sections are quite distinct,
\n     and s.  2 throws no light on s. 1…. But s. 2 does not
\n     apply to  an interest  in property\t which passes on the
\n     death of  the deceased.  That is  already dealt with in
\n     the earlier  section …. That is s. 1. You do not want
\n     s. 2  for that.  You cannot  resort to  s. 2.  For that
\n     would be  giving the  duty twice over. The Crown cannot
\n     have it  both ways.  Double duty  is forbidden  by\t the
\n     Act.”\n<\/p><\/blockquote>\n
\t\t\t\t\t (Emphasis supplied)
\nThe ratio decidendi in Earl Cowley’s case was that if a case
\nfell within  s. 1  without the\taid of\ts. 2(1),  one is not
\nconcerned with s. 2(1).<\/p><\/blockquote>\n
     Lord Macnaghten’s\texposition of  the inter-relation of
\nss. 1  and 2  in Earl  Cowley’s case contained the essential
\ncharacteristics of  a statement\t of legal  principle; it was
\nexpressed in  very precise  language, and  with a confidence
\nthat excluded the possibility of any alternative view.\n<\/p>\n
     In Attorney-General  v.  Milne  (supra)  Lord  Haldane,
\nafter referring to Earl Cowley’s case, said:\n<\/p>\n
\t  “Section 2  is thus  not a definition section, but
\n     an independent  section operating\toutside the field of
\n     section 1.”\n<\/p><\/blockquote>\n
Lord Atkinson, however, adopted Lord Haldane’s earlier view,
\ntreating section 2 as merely supplementary to section 1, and
\nas  designed   to  make\t  liable  to   estate  duty  certain
\ndispositions of\t property which\t were outside  the scope and
\nbeyond the  reach of section 1. “This section”, he said, “is
\nnot a  definition section”.  He did  not, however,  say (and
\nthat is\t significant) that  the two  sections were  mutually
\nexclusive. Lord\t Dunedin took  a different view. Having said
\nthat whether  Lord Macnaghten was strictly correct or not in
\nsaying that whether the two sections were mutually exclusive
\nor not seemed to him to matter little, he added:\n<\/p>\n
\t  “It seems  to me  that that  is as  much as to say
\n     that the words, ‘property passing on the death’, in the
\n     first  section,  are  to  be  read\t as  if\t the  words,
\n     ‘including the property following,
\n954<\/span>
\n‘that is  to say’-  (and then all the sub-sections) had been
\nthere inserted.”\n<\/p><\/blockquote>\n
In Nevill  v.  Inland  Revenue\tCommissioners  (supra)\tLord
\nHaldane said:\n<\/p>\n
\t  “‘Passes’ may be taken as meaning ‘changes hands’.
\n     The principle  is contained  in section  1.  Section  2
\n     combines  definitions   of\t such\tproperty  with\t the
\n     extension of the application of the principle laid down
\n     in section\t 1 to certain cases which are not in reality
\n     cases of changing hands on death at all.”.
\n     In Public\tTrustee v. Inland Revenue Commissioners (Re.\n<\/p><\/blockquote>\n
Arnholz) the  House of Lords after a lapse of over 60 years,
\nhowever, struck\t a discordant  note. The  theory of  ‘mutual
\nexclusiveness’ of  ss. 1 and 2 enunciated by Lord Macnaghten
\nwas not\t accepted. It  was held\t s.1 imposed  the charge  in
\ngeneral terms  and s.2,\t by exclusion and inclusion, defined
\narea of that charge.\n<\/p>\n
     No clear  exposition was  given or required to be given
\non the\tfacts of  the case of what was the precise effect of
\nthe two sections or their relationship to one another. There
\nfollowed  a   period  of   uncertainty\tas  to\tthe  precise
\nrelationship between  the two  sections, although subsequent
\nto Arnholz’s  case section  1 alone  was held  to  be  still
\ncapable of  imposing  a\t charge\t of  duty,  and\t where\tboth
\nsections 1  and 2  applied, the\t property  was\theld  to  be
\ndutiable under\tboth concurrently.  If\tthe  property  which
\npassed was identical with the property which would otherwise
\nbe deemed to pass, the question under which head it shall be
\ntaxed was  purely academic. Estate duty is not leviable more
\nthan once on the same death in respect of any property, even
\nif it is chargeable under more than one head.\n<\/p>\n
     In Weir’s\tSettlement Trusts,  Re. Mc Pherson v. Inland
\nRevenue Commissioners,\tthe contention on behalf of the tax-
\npayer was  that the  decision in  Public Trustee  v.  Inland
\nRevenue Commissioners (Re. Arnholz) established the complete
\nreverse of  the view  expressed by  Lord Macnaghten  in Earl
\nCowley’s  case,\t  that\tis,   established  that\t  section  2
\nexhaustively laid  down\t the  only  circumstances  in  which
\nestate duty was leviable, and that if the circumstance could
\nnot be\tbrought within\ts. 1, as being circumstances set out
\nin s.  2, that was the end of the matter, the phrase in s. 1
\n‘property-which passes\ton  the\t death’\t having\t no  content
\nindependent of s. 2.\n<\/p>\n
955<\/span><\/p>\n
     Russell L.J.,  in delivering  the judgment of the Court
\nof Appeal,  resolved the  doubts as  to the  relationship of
\nss.1 and  2 of\tthe Act,  and rejected the contention of the
\ntax-payer, observing:\n<\/p>\n
\t  “It was  certainly not  decided by the majority in
\n     Arnholz’s case  that, as  a matter of construction, the
\n     entire content  of ‘property….which  passes on death’
\n     in s. 1 was to be found in s.2.”\n<\/p><\/blockquote>\n
As regards the relationship of sections 1 and 2, he stated:\n<\/p>\n
\t  “Our view  of the relationship of the two sections
\n     is as  follows. It\t is s.\t1 that imposes the charge of
\n     estate duty  on the  value\t of  property  described  as
\n     ‘property….which passes\ton the\tdeath’. Section 2(1)
\n     does not  describe a  different category  of  property,
\n     being property  deemed to pass on a death. Section 2(1)
\n     states certain situations in relation to property which
\n     involve that  property in s. 1 as property which passes
\n     on a  death. We  see no reason to hold that s. 2(1) was
\n     intended  exhaustively   to  define   and\t limit\t the
\n     situations in  relation to\t property which thus involve
\n     that  property.  The  language  is\t not  apt  for\tthat
\n     purpose; and  the fact  that the  situations  envisaged
\n     embrace occasions\twhen without  guidance from s. 2 (1)
\n     the property  would  be  manifestly  ‘property….which
\n     passes on\tthe death’  does not  mean that they embrace
\n     all such occasions.”<\/p><\/blockquote>\n
     The question is a difficult one on which there may well
\nbe divergence  of opinion,  as reflected  in  these  English
\ndecisions which\t largely turn  on the  construction of ss. 1
\nand 2  of the Finance Act, 1894, the provisions of which are
\nsomewhat similar  to those  of ss.  5 and  6 of the Act. The
\nsimultaneous existence\tof a  right to tax under ss. 1 and 2
\nwas inconsistent  with\tthe  well-known\t statement  of\tLord
\nMacnaghten in  Earl Cowley’s  case and could not, therefore,
\nbe sustained. Nevertheless, the trend of judicial opinion in
\nEngland rightly\t changed, as we think that Lord Macnaghten’s
\nopinion\t ought\tnot  to\t be  regarded  as  subject  to\tsuch
\nrefinement.\n<\/p>\n
     The  Andhra   Pradesh  High  Court\t in  Smt.  Shantabai
\nJadhav’s case  (supra) held  that notwithstanding  the\tfact
\nthat the property was purchased in the name of the wife, and
\nhad been included by
\n956<\/span>
\nthe deceased  as his  own property in the wealth tax returns
\nfiled by him, it could not be held to be the property of the
\ndeceased, for  the purpose of its inclusion in the estate of
\nthe deceased. It was observed:\n<\/p>\n
\t  “Even assuming that the money for the purchase was
\n     found by  her husband,  it does  not mean\tthat he\t had
\n     beneficial\t interest   in\tthe  property.\tNormally,  a
\n     husband takes  a sale in the name of his wife either to
\n     make a provision for her or to screen the property from
\n     creditors, i.e.,  to keep\tit beyond  the reach  of the
\n     creditors. Whatever  may be  the motive, so long as the
\n     deed stands in the name of another person, it could not
\n     be said  that it  was competent  for  the\tdeceased  to
\n     dispose of\t the property.\tSection 6 of the Estate Duty
\n     Act enacts\t that property which the deceased was at the
\n     time of  his death\t competent to  dispose of  shall  be
\n     deemed to\tpass on\t his death. It is thus manifest from
\n     the section that Estate duty could be levied in respect
\n     of the  properties which  could be\t disposed of  by the
\n     deceased at the time of his death.”\n<\/p><\/blockquote>\n
Repelling the  contention  that\t the  wife  could  not\thave
\nalienated the properties by herself and that any disposition
\nby her\twould not  pass the  title to such purchaser, having
\nregard to  the fact  that it  was open\tto  the\t husband  to
\nimpeach the  sale sometime  later, on  the ground  that\t the
\nbeneficial interest  always  vested  in\t him,  consideration
\nhaving\tbeen   paid  by\t him,  the  Court  relied  upon\t the
\nprovisions of  s. 41  of the  Transfer of  Property Act\t and
\nfurther observed:\n<\/p>\n
\t  “Be that as it may, so long as the documents stand
\n     in the  name of  his wife,\t he could not dispose of the
\n     property. It  is true  that it  was open to him to have
\n     obtained the  declaration that  he was  the  beneficial
\n     owner thereof  notwithstanding the\t fact that  his wife
\n     was the  ostensible owner.\t But, so long as the husband
\n     does not  have any\t recourse to  these proceedings\t for
\n     obtaining such  a relief,\the could  not have been in a
\n     position to  dispose of  the property  standing in\t the
\n     name of  the third\t person as his own. This proposition
\n     was not  contested on  behalf of  the Central  Board of
\n     Revenue.”<\/p><\/blockquote>\n
     In Smt. Denaabi Boman Shah’s case (supra) following its
\nearlier decision  in  Smt.  Shantabai  Jadhav’s\t case  while
\ndealing with  a similar\t benami transaction,  the High Court
\nheld that  the value  of property  held by a benamidar could
\nnot be\tincluded in  the value\tof the\tproperty left by the
\ndeceased.\n<\/p>\n
957<\/span><\/p>\n
     In Controller  of Estate  Duty v.\tM. L. Manchanda, the
\nPunjab and  Haryana High Court following these decisions had
\nheld that  property which  stood in  the name of wife and of
\nwhich the  husband was\tthe real  owner, was upon the wife’s
\ndeath chargeable  to estate  duty under\t s. 5(1) of the Act,
\nobserving:\n<\/p>\n
     “Irrespective of the fact that the husband was the true
\n     owner of the property, there was nothing to prevent the
\n     wife  a   minute  before  her  death  to  transfer\t the
\n     property. The  legal title\t against  the  entire  world
\n     excepting the  true owner,\t vested in  her and  she had
\n     thus the  right to dispose of that right, and once that
\n     right is conceded, the property shall be deemed to pass
\n     on her  death and\twould, therefore,  be liable  to the
\n     levy of estate duty under section 5 of the Act.”
\n     In delivering  the judgment  of the Full Bench in O. S.\n<\/p><\/blockquote>\n
Chawla v. Controller of Estate Duty, Dwivedi J. observes:\n<\/p>\n
\t  “The scheme of the Act is two-fold. Firstly, there
\n     are properties  which pass\t on the\t death of  a person.
\n     Section 5(1)  imposes duty\t on their  value.  Secondly,
\n     there are\tproperties in  which  the  deceased  had  an
\n     interest or  power of  appointment and  which really do
\n     not pass  on his  death. The  scheme of  the Act  is to
\n     impose duty  on the  value of  such properties also. In
\n     the second\t class will fall provisions like sections 6,
\n     7, 8,  9 and  10. The  Act creates\t a fiction of law to
\n     declare that the properties mentioned in those sections
\n     will be deemed to pass on the death of a person, though
\n     they do not ‘pass’ in fact.”\n<\/p><\/blockquote>\n
\t  This\ttwo-fold   scheme  is\tmade  plain  by\t the
\n     definition in  section 2(16)  and section 3(3). Section
\n     2(16) defines  the phrase\t‘property passing on death’.
\n     Section 3(3)  declares that  references in\t the Act  to
\n     ‘property passing\ton the\tdeath’ of  a person shall be
\n     construed as  including references\t to ‘property deemed
\n     to pass  on the death’ of such person. The statement of
\n     objects and  reasons of the Bill which ripened into the
\n     Act also emphasises the two-fold scheme. It states that
\n     the ‘object  of the Bill is to impose an estate duty on
\n     property passing  or deemed  to pass  on the death of a
\n     person’.\n<\/p><\/blockquote>\n
\t  The object  of section 6 is to catch properties in
\n     the set of section 5(1) which do not really pass on the
\n     death of  a person. For instance, property comprised in
\n     a\trevocable  gift\t is  property  which  the  donor  is
\n     competent to dispose of whether the gift is
\n958<\/span>
\n     revoked or\t not and  will\tbe  covered  by\t section  6.
\n     Similarly, property  in respect  of which\tthe deceased
\n     had the  power of\tappointment will  also\tfall  within
\n     section 6.”\n<\/p><\/blockquote>\n
We are\tin agreement  with  the\t observations  made  by\t the
\nlearned Judge  on the relative scope of s. 5 and s. 6 of the
\nAct, which bring out the true legislative intent.\n<\/p>\n
     In applying  the Act  to  any  particular\ttransaction,
\nregard must be had to its substance, that is, its true legal
\neffect, rather\tto the\tform in\t which it is carried out. On
\nthe facts  found, it  has been established beyond doubt that
\nthe deceased was the real owner of the shares. The ownership
\nwhich the deceased had in the shares passed on his death and
\nmust be brought to charge under sub-s. (1) of s. 5.\n<\/p>\n
     All that  has been\t said above is sufficient to dispose
\nof the\tappeal. It,  however, becomes necessary to deal with
\nthe law\t relating to  benami transactions  as there  is some
\nmisconception as to the nature of the rights of a benamidar.
\nWhat follows is purely elementary.\n<\/p>\n
     The  law  in  this\t matter\t is  not  in  doubt  and  is
\nauthoritatively stated\tby a  long line\t of decisions of the
\nPrivy  Council\t starting  from\t  the  well  known  case  of
\nGopeekrist Gosain  v. Gungapersaud  Gosain to Sura Lakshmiah
\nChetty v.  Kothandarama Pillai\tand of\tthis Court  in Shree
\nMeenakshi Mills\t Ltd. v. C.I.T.. As observed by Knight Bruce
\nL.J.  in   Gopeekrist  Gosain’s\t  case,\t the   doctrine\t  of
\nadvancement is\tnot applicable\tin India, so as to raise the
\nquestion of  a resulting trust. When a property is purchased
\nby a  husband in the name of his wife, or by a father in the
\nname  of  his  son,  it\t must  be  presumed  that  they\t are
\nbenamidars, and\t if they  claim it  as their own by alleging
\nthat the  husband or  the father  intended to make a gift of
\nthe property  to them, the onus rests upon them to establish
\nsuch a\tgift. In  Sura Lakshmiah  Chetty’s case, the law was
\nstated with clarity by Sir John Edge in these words:\n<\/p>\n
\t  “There can  be no  doubt now\tthat a\tpurchase  in
\n     India by  a native of India of property in India in the
\n     name  of  his  wife  unexplained  by  other  proved  or
\n     admitted  facts   is  to\tbe  regarded   as  a  benami
\n     transaction, by  which the\t beneficial interest  in the
\n     property is  in the  husband, although  the  ostensible
\n     title is in the wife.”<\/p><\/blockquote>\n
959<\/span><\/p>\n
     It is  but axiomatic that a benami transaction does not
\nvest any  title in  the benamidar  but vests  it in the real
\nowner. When  the benamidar  is in possession of the property
\nstanding in  his name,\the is in a sense the trustee for the
\nreal owner;  he is  only a  name-lender or  an alias for the
\nreal owner.  In Petheperumal  Chetty v. Muniandy Servai, the
\nJudicial  Committee   quoted  with  approval  the  following
\npassage from Mayne’s Hindu Law 7th ed., para 446:\n<\/p>\n
\t  “Where a transaction is once made out to be a mere
\n     benami, it\t is evident  that the  benamidar  absolutely
\n     disappears from  the title. His name is simply an alias
\n     for that of the person beneficially interested.”\n<\/p><\/blockquote>\n
The cardinal  distinction between a trustee known to English
\nlaw and\t a benamidar  lies in the fact that a trustee is the
\nlegal owner  of the property standing in his name and cestui
\nque trust is only a beneficial owner, whereas in the case of
\na benami  transaction the real owner has got the legal title
\nthough the  property is\t in the name of the benamidar. It is
\nwell settled  that the real owner can deal with the property
\nwithout reference  to the latter. In Gur Narayan v. Sheo Lal
\nSingh, the  Judicial Committee\treferred to  the judgment of
\nSir George  Farwell in\tMst. Bilas  Kunwar v.  Dasraj Ranjit
\nSingh, where it was observed that a benami transaction had a
\ncurious resemblance  to the doctrine of English law that the
\ntrust of  the legal  estate results  to the man who pays the
\npurchase-money, and went on to say:\n<\/p>\n
\t  “..the benamidar has no beneficial interest in the
\n     property or  business  that  stands  in  his  name;  he
\n     represents, in  fact, the\treal owner,  and so  far  as
\n     their relative legal position is concerned he is a mere
\n     trustee for him.”\n<\/p><\/blockquote>\n
In  Guran   Ditta  v.\tRam  Ditta  the\t Judicial  Committee
\nreiterated the\tprinciple laid\tdown in\t Gopeekrist Gosain’s
\ncase and  observed that\t in case  of a\tbenami\ttransaction,
\nthere is a resulting trust in favour of the person providing
\nthe purchase money.\n<\/p>\n
     A benamidar  has no  interest at  all in  the  property
\nstanding in his name. Where the transaction is once made out
\nto be benami, the Court must give effect to the real and not
\nto the\tnominal title  subject\tto  certain  exceptions.  In
\nMulla’s Hindu Law, 14th edn., p. 638, four exceptions to the
\nnormal rule  are brought  out. But  these exceptions are not
\nmaterial in this case. One of the exceptions
\n960<\/span>
\nenumerated  therein   is  that\t where\ta  benamidar  sells,
\nmortgages or  otherwise transfers for value property held by
\nhim without  the knowledge of the real owner, the real owner
\nis not\tentitled to  have the  transfer set aside unless the
\ntransferee had\tnotice,\t actual\t or  constructive  that\t the
\ntransferor was merely a benamidar. The principle is embodied
\nin s.  41 of the Transfer of Property Act. The section makes
\nan exception  to the  rule that\t a person  cannot  confer  a
\nbetter title  than he has. The section is based on the well-
\nknown passage from the judgment of the Judicial Committee in
\nRamcoomar Koondoo v. Macqueen:\n<\/p>\n
\t  “It is  a principle  of natural equity, which must
\n     be universally  applicable, that  where one  man allows
\n     another to\t hold himself out as the owner of an estate,
\n     and a  third person  purchases it\tfor value  from\t the
\n     apparent owner in the belief that he is the real owner,
\n     the man  who so  allows the  other to  hold himself out
\n     shall not be permitted to recover upon his secret title
\n     unless he\tcan other  throw that  of the  purchaser  by
\n     showing, either that he had direct notice, or something
\n     which amounts  to\tconstructive  notice,  of  the\treal
\n     title, or\tthat there existed circumstances which ought
\n     to have  put him  upon an\tinquiry that, if prosecuted,
\n     would have led to a discovery of it.”\n<\/p><\/blockquote>\n
A benamidar is an ostensible owner and if a person purchases
\nfrom a\tbenamidar, the\treal owner  cannot recover unless he
\nshows that  the purchaser  had actual or constructive notice
\nof the real title. But from this it does not follow that the
\nbenamidar has  real title  to the  property, he is merely an
\nostensible owner thereof.\n<\/p>\n
     The law  is succinctly  stated by Mayne in his Treatise
\non Hindu Law, 11th edn., at p. 953, in the following terms:\n<\/p>\n
\t  “A  benami  transaction  is  one  where  one\tbuys
\n     property  in   the\t name  of  another  or\tgratuitously
\n     transfers his  property to\t another, without indicating
\n     an intention  to  benefit\tthe  other.  The  benamidar,
\n     therefore, has  no beneficial  interest in the property
\n     or business  that stands  in his name; he represents in
\n     fact the  real owner and so far as their relative legal
\n     position is concerned, he is a mere trustee for him. In
\n     other words, a benami purchase or conveyance leads to a
\n     resulting\ttrust  in  India,  just\t as  a\tpurchase  or
\n     transfer  under   similar\tcircumstances\tleads  to  a
\n     resulting\ttrust  in  England.  The  general  rule\t and
\n     principle of  the Indian  law as  to  resulting  trusts
\n     differs but  little if at all, from the general rule of
\n     English law upon the same subject.”\n<\/p><\/blockquote>\n
961<\/span><\/p>\n
(See also  : Shree  Meenakshi Mills Ltd. v. C.I.T. (1957) 31
\n     ITR 28  per Venkatarama Ayyar J., and Thakur Bhim Singh
\n     v. Thakur\tKan Singh [1980] 3 SCC 72. Per Venkataramiah
\n     J.]
\n     In the  light of these settled principles the liability
\nto pay estate duty under s. 5 (1) of the Act arises upon the
\ndeath of  the real  owner and  not of  the benamidar, who is
\nmerely an  ostensible owner.  The test\tlies in whether upon
\nthe death  of the  benamidar, there  would be  incidence  of
\nliability to estate duty. If the view of the High Court were
\nto be accepted, the estate left by the deceased would escape
\nthe duty altogether. We do not see how s. 6 of the Act comes
\ninto play at all in this case.\n<\/p>\n
     In view  of the  finding that the shares were purchased
\nby the\tdeceased benami\t in the\t name of  his wife  and sons
\netc., the  real ownership  of the property was vested in the
\ndeceased was  entitled to  deal with  the same as if it were
\nhis own\t and the  benamidars held it in trust under s. 82 of
\nthe Trusts  Act, 1882  for the\tbenefit of the deceased. The
\nbenamidars, subject  to the  equities flowing  from s. 41 of
\nthe Transfer of Property Act, could not deal with the shares
\nin any way. Accordingly, the estate belonged to the deceased
\nwho died possessed of the same, and under s. 5(1) of the Act
\nthe entire  value  of  the  shares  was\t includible  in\t the
\nprinciple value of the estate of the deceased on his death.\n<\/p>\n
     For these\treasons, the  judgment of  the High Court is
\nset aside  and the  question is\t answered in the affirmative
\nand in\tfavour of the Controller of Estate Duty. There shall
\nbe no order as to costs.\n<\/p>\n
N.V.K.\t  Appeal allowed.\n<\/p>\n
962<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Controller Of Estate Duty, … vs Aloke Mitra on 10 October, 1980 Equivalent citations: 1981 AIR 102, 1981 SCR (1) 943 Author: A Sen Bench: Sen, A.P. (J) PETITIONER: THE CONTROLLER OF ESTATE DUTY, LUCKNOW Vs. RESPONDENT: ALOKE MITRA DATE OF JUDGMENT10\/10\/1980 BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) […]<\/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-196825","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Controller Of Estate Duty, ... vs Aloke Mitra on 10 October, 1980 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-controller-of-estate-duty-vs-aloke-mitra-on-10-october-1980\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Controller Of Estate Duty, ... vs Aloke Mitra on 10 October, 1980 - 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