D. D. Dave C.J. - This is a reference by the Central Board of Revenue, New Delhi, under section 64 of the Estate Duty Act, No. 34 of 1953, which will hereafter be refereed to as 'the Act'.
The question which has been referred to this court is as follows :
'Whether, on the facts and in the circumstances of the case, the sum of Rs. 6,85,193 was correctly included in the estate of the deceased as property deemed to pass on her death under section 10 of the Estate Duty Act, 1953 ?'
Briefly stated, the facts giving rise to the said question, as detailed in statement of the case, are as under :
Smt. Purna Bai, widow of Shri Sagarmal Mody, died on 15th February, 1956. She had no natural issue of her own but was survived by her adopted son, Shri Satyanarayan Mody and a grandson, Shri Suryakant Mody, son of Satyanarayan, who have been treated as accountable persons concerned under section 53 of the Act. Smt. Purna Bai, deceased, had an account in the Bank of Bikaner at Jaipur in her name from 1st April, 1949. In July, 1953, she was holding three fixed deposit receipts of the said bank. On 22nd July, 1953, she wrote a letter to the said bank enclosing two fixed deposit receipts out of them. By that letter the bank was informed by the deceased that she intended to make a gift of the entire amount of the said two receipts in favour of her grandson, Shri Suryankant Mody, and therefore, the bank was requested to prepare the new receipts in joint names as under :
'Purna Bai Satyanarayan Mody and/or Suryankant S. Mody payable to either or survivor.'
On 16th August, 1953, she executed a gift deed in favour of her grandson, Shri Suryakant Mody, in respect of the amounts of all the three fixed deposit receipts, noted below :
Rs. As. Ps.
(1)
Fixed Deposit Receipt No. 11146, dated 4th July, 1953
80,931 10 0
(2)
Fixed Deposit Receipt No. 221/8292, dated 3rd August, 1953
5,00,000 0 0
(3)
Fixed Deposit Receipt No. 222/8293, dated 3rd August, 1953
45,793 4 0
Thus, she made a gift of the total amount of Rs. 6,26,724-14-0 of the said three fixed deposit receipts. It was noted in the said gift deed that the gift was accepted by Shri Satyanarayan Mody on behalf of his minor son, Shri Suryakant Mody, as his father and natural guardian. On 17th August, 1953, Smt. Purna Bai wrote another letter -annexure 'G' - to the manager, Bank of Bikaner Limited, Jaipur, saying that she was enclosing therewith a copy of a declaration of gift made by her for record and information. It was added by her that thereafter Shri Suryakant S. Modi was the sole owner of the amount of the two Fixed Deposit Receipts Nos. 222/8293, dated 3rd August, 1953, and 221/8292, dated 3rd August, 1953, and that, till he attained majority, these two receipts should remain in joint names as they stood on that date. Both these fixed deposit receipts continued to be reinvested with the bank from time to time. On each occasion the discharge on the fixed deposit receipts was given by Smt. Purna Bai. After her death, the amounts of these two fixed deposit receipts were paid to Satyanarayan Mody who gave discharge on the certificates as the guardian of the minor, Suryakant S. Mody. As regards the third Fixed Deposit Receipt No. 11146 dated 4th July, 1953, it matured during the life time of the deceased on 25th August, 1955. The proceeds of this receipt amounting to Rs. 86,752 were withdrawn from the bank and Rs. 5,000 were invested in the purchase of National Savings Certificates in the name of Suryakant S. Mody. The balance of Rs. 81,752 was deposited with Messrs. Sagarmal Mody at Bombay in the name of Suryakant S. Mody. The two fixed deposit receipts which were in the joint names of Smt. Purna Bai and Suryakant S. Mody were kept in the custody of Shri Satyanarayan Mody. He used to send them to the bank after getting them duly discharged by Smt. Purna Bai and the renewed fixed deposit receipts were issued in the names of Purna Bai and Suryakant S. Mody.
The Assistant Controller of Estate Duty came to the conclusion that the gift by Smt. Purna Bai in favour of her grandson was not genuine and that, even if it was genuinely made, the possession and enjoyment of the gifted property was not assumed by the donee to the entire exclusion of the deceased. He came to this finding on the ground that fixed deposit receipts continued to remain in the joint names of the donor and the donee in spite of the execution of the gift deed. In respect of the third receipt dated 4th July, 1953, it was observed that it was also held in the joint names of the donor and the donee and that, although after its encashment its proceeds were deposited in the name of Suryakant Mody alone, It did not improve the donees position because the discharge on this receipt was given by the donor on 25th August, 1955, that is, within two years prior to her death. Aggrieved by this order dated 7th July, 1958, an appeal was filed before the Central Board of Revenue which will hereafter be referred to as 'the Board'. The Board was of the view that the gift was complete on 16th August, 1953, and that there was no reason for holding that the gift was not genuine. At the same time it was found by the Board that the donor had, at all times during the currency of the fixed deposit, the right to receive the money from the bank by giving discharge for the same under her own signature and that the statement of account received from the manager of the Bank of Bikaner showed that whenever the fixed deposit receipts matured during the lifetime of the deceased, the receipts were, in fact, discharged by her alone. The person who could act for the minor was his father and natural guardian, Shri Satyanarayan Mody, but no discharge was given by him. The Board, therefore, came to the conclusion that there was no force in the contention raised on behalf of the accountable persons that the deceased had acted only on behalf of the minor. In the view of the Board, at no time there was entire exclusion of the donor and, therefore, the gift fell within the ambit of section 10. It was on this ground that the Board confirmed the addition of Rs. 6,85,193 in the value of the estate of the deceased. On 22nd June, 1960, an application was moved before the Board for reference to this curtained it was on this application that the question set out above has been formulated and referred to this court.
Learned counsel for the applicant has urged before us that in the letter which Smt. Purna Bai had written to the Bank of Bikaner Limited, Jaipur, on 22nd July, 1953 (annexure 'E'), she had made it clear to the bank that she intended to make a gift of two fixed deposit receipts dated 20th March, 1953, in favour of her grandson and, therefore, the bank was requested to prepare both the receipts in her name and/or her grandson, Suryakant S. Mody payable to either or survivor. In the very next month she executed a gift deed in favour of her grandson and made an unequivocal gift of all the three fixed deposit receipts, vide annexure 'F'. It is pointed out that in this gift deed it was twice mentioned by her that her grandson was the absolute owner of the amounts of these receipts after the execution of the gift deed. It was also noted there in that the gift was accepted by the minors father as his natural guardian. According to the learned counsel, the perusal of this document leaves no room for any doubt that there was valid and complete gift by the deceased in favour of her grandson and she did not want to keep this money for her enjoyment. It is further pointed out that on the very next day, i.e., 17th August, 1953, she intimated the bank about the factum of gift. Learned counsel proceeds to argue that simply because the deceased allowed her name to be retained in the fixed deposit receipts, it should not have been presumed by the Board that she wanted to retain the possession over the gifted property or that she meant to keep it in her enjoyment. It has been strenuously argued that she did not retain possession of the gifted property because the fixed deposit receipts were handed over to the minors natural guardian and it was he who used to keep them in his possession. The natural guardian had filed his affidavit to the effect that all the fixed deposit receipts were kept by him in his possession after the gift deed was executed, that he used to send them to the bank after obtaining discharge on them from Smt. Purna Bai and as soon as the receipts were renewed he again used to keep them in his possession. It is argued that this affidavit has been believed by the Board and therefore the Board ought to have held, and now this court should hold, that the gifted property did not remain in the possession of the deceased. It is further argued that the bank also knew that the lady was not the owner of the property because such an intimation was given to the bank. According to the learned counsel, the possession of the deceased was no more than that of a trustee and it is prayed that the question referred to should be answered in the affirmative and in the applicants favour.
In reply, it is urged by learned counsel for the respondent that the very fact that in spite of the execution of the gift deed, Smt. Purna Bai allowed her name to continue in the fixed deposit receipts showed that she never wanted to give up her possession and enjoyment over the gifted property in its entirety. On the contrary, it shows that during her life time she was anxious to continue her hold over the gifted property and did not want to part with her possession and enjoyment. He has drawn our attention to the fact that after the execution of the gift deed, the fixed deposit receipts were renewed no less than seven times, and every time it was she who gave the discharge on the receipt and every time she insisted upon her name being included in the renewed receipts. It was also argued that the deceased did not indicate her mind in writing as to why she wanted her name to be included in the fixed deposit receipts and why she did not permit the minors guardian to give the discharge on his behalf and to get the receipts renewed in the name of the minor alone. Learned counsel proceeds to urge that Shri Satyanarayan Mody, guardian of the minor, was no other person than the deceaseds own adopted son, and if she accepted him as the father and natural guardian of the donee, there was reason why she did not allow her name to be excluded from the fixed deposit receipts or to permit Shri Satyanarayan to give the discharge on the receipts. It was nowhere indicated by her that she allowed her name to be included in the receipts as a trustee. Thus, according to the learned counsel, the matter falls fairly within the ambit of section 10 of the Act, that the Board has given a correct decision and that the question referred to should be answered in the affirmative.
When the arguments were coming almost to a close, learned counsel for the applicant presented an application saying that the statement of the case submitted by the Board does not show as to why and in what circumstances the deceased described the receipts to remain in the joint names of herself and the donee and that the Board should be called upon to make a fuller statement of the case. This application has been stoutly contested by the respondents learned counsel on the ground that the reference was made more than three years back on 28th February, 1963, that the petitioner had a long time at his disposal, that no such application was presented on his behalf during this long period, that it has been sub-mitted at the fag end of the arguments just to delay the case, that no material was placed on behalf of the petitioner either before the Assistant Controller or the Central Board of Revenue, that he only wants to embark upon a fishing enquiry and, therefore, it should not be allowed.
Before we proceed to consider other arguments advanced on either side, it seems proper to dispose of this application. It may be observed that if the petitioner thought that Smt. Purna Bai wanted to function only as a trustee for the minor in preference to his natural guardian, such an objection ought to have been raised expressly before thee Assistant Controller, Estate Duty. It should have also been made clear if there were any documents in the possession of the petitioner to throw any light on the intention of the deceased when she insisted upon inclusion of her name in the fixed deposit receipts in spite of the execution of the gift deed. If he wanted to raise an inference, that should also have been indicated in the light of the relevant circumstances. We agree with the learned counsel for the respondent that this application is very much belated and no useful purpose would be served by requiring the Board to make a fuller statement when there is no basis for a further statement, that this application is meant only to make a kind of roving enquiry and it cannot be allowed at this stage. We have already indicated to the learned counsel that we had no mind to entertain this application and we hereby dismiss the same.
Now, coming to the reference, it may be observed that the Board itself has given a finding in favour of the applicant that the gift was genuine. The limited question before us is whether, in spite of the gift, the property taken thereunder should be deemed to pass on the donors death under section 10 of the Act because its possession and enjoyment was not retained by the donee to the entire exclusion of the donor or of any benefit to her. Normally, the property which is gifted by a donor to a donee passes to the donee as soon as a valid gift is made. The Estate Duty Act, 1953, for the purpose of charging estate duty, however, makes certain exception. Section 8 there of lays down that property taken as a gift made in contemplation of death shall be deemed to pass on the donors death. Section 9 then provides that property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos, whether by way of transfer, delivery, declaration of trust, settlement upon person in succession, or otherwise, which shall not have been bona fide made two years or more before the death of the deceased, shall be deemed to pass on the death. It may be clarified that a question under section 8 has not been referred to us; but we have referred to them here to show the sequence of section 10 which we are called upon to interpret. Section 10, with which we are concerned here, runs as follows :
'Property, taken under any gift, whenever made, shall be deemed to pass on the donors death to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise :
Provided that the property shall not be deemed to pass by reason only that it was not, as from the date of the gift, exclusively retained as aforesaid, if, by means of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the donor or of any benefit to him for at least two years before the death.'
It may be observed that the Estate Duty Act, 1953, is founded on the English statute relation to estate duty. In Attorney-General v. Seccombe, the question turned on the interpretation of section 2, sub-section 1(c), of the Finance Act, 1894, which incorporated section 38 of the Customs and Inland Revenue Act, 1881, as amended by section 11 of the Customs and Inland Revenue Act, 1889, with regard to the provision which was in the following words :
'Property taken under any gift, whenever made, of which property bona fide possession and enjoyment shall not have been assumed by the donee immediately upon the gift and thenceforward retained to the entire exclusion of the donor, or of any benefit to him by contract or otherwise.'
It would appear that the provision there was analogous to section 10 reproduced above. Referring to the above provision, Hamilton J. observed that grammatically the words must be construed thus :
'Property taken under any gift, whenever made, of which property bona fide possession and enjoyment shall not have been assumed by the donee immediately upon the gift, and of which property bona fide possession and enjoyment shall not have been thenceforward retained by the donee to the entire exclusion of the donor from such possession and enjoyment, or of any benefit to him by contract or otherwise.'
We are referring to this case not because it has any bearing on the present one, because the facts of that case were very different, but in order to show how the provision was understood. After referring to this and other cases, the position has been summarised in Dymonds Death Duties (fourteenth edition), 1965, at page 274, as follows :
'CONDITIONS OF LIABILITY
It comes to this : Estate duty is payable in respect of all gifts, or under disposition..... which are treated as gifts under the provisions already discussed, made by the deceased in his life time unless -
(a) the transfer of the property (or the beneficial interest) to the donee was duly completed; and
(b) the donee assumed bona fide possession and enjoyment of the property immediately on the gift; and
(c) the deceased was, either from the outset or subsequently, entirely excluded from all beneficial interest in the property (or the interest therein given), and from the possession and enjoyment thereof (other than occupation of possession of land or chattels for full consideration), and also from any benefit by contract or otherwise (and also, as respects settled property, had no power of revocation or right to reclaim the absolute interest in the property : see P. 325); and
(d) the transfer of the property, the assumption of possession and enjoyment by the donee and the exclusion of the deceased all took place at least five years, or, in the case of a gift for public or charitable purposes, one year, before the death. (Even where this condition has been fulfilled during the deceaseds lifetime, the prospective liability to duty may be revived if he subsequently acquires a benefit by associated operation).'
In the present case we are concerned with condition (c) noted above. Referring to this condition, the author observes at page 275 as below :
'Condition (c) is the crux of the matter. The condition has two limbs : the deceased must be entirely exclude, (i) from the property, and (ii) from any benefit by contract of otherwise.'
We will now see in the light of the above analysis whether the deceased was, either from the outset or subsequently, entirely, excluded from the possession and enjoyment of the gifted property or from any benefit by contract or otherwise.
It is clear from the narration of facts given above that the donor was in possession and enjoyment of the entire amount of the three fixed deposit receipts referred to above, till she executed the gift deed relating to the said fixed deposit receipts on 16th August, 1953. In the gift deed - annexure 'F' - she no doubt stated that her grandson would be the absolute owner of the gifted property thereafter, but the question arises whether she was actually excluded from the possession and enjoyment of the gifted property. In our opinion, although the donee was also put in possession and enjoyment of the property by the execution of the gift deed and inclusion of his name in the fixed deposit receipts, at the same time the donor was not entirely excluded from the possession and enjoyment of that property. In other words, the donor allowed the donee to share the possession and enjoyment of the property along with her but she did not divest herself completely of its possession and enjoyment. After the execution of the gift deed, the possession and enjoyment of the property became joint and several. Her possession and enjoyment prior to the gift deed under went a change only to the extent that her grandson was also permitted to possess and enjoy the property but the donor, for reasons best known to her, was not excluded entirely by the donee. We are not impressed with the argument advanced by the petitioners learned counsel to the effect that the donor ceased to remain in possession of the amount of the fixed deposit receipts simply because the receipts were kept in the custody of Shri Satyanarayan Mody, father of the minor. According to the finding of the Board, it was the donor who continued to give a discharge of the receipts every time they were renewed. It appears from the assessment order that the fixed deposit receipts were renewed on 9th February, 1954, 12th June, 1954, 18th September, 1954, 20th December, 1954, 22nd March, 1955, 24th June, 1955, and 1st October, 1955, and every time it was Smt. Purna Bai who gave the discharge on the old receipts, and every time her name was included in the receipts which were renewed. Since the fixed deposit receipts were in the names of Purna Bai and Suryakant S. Mody and since the gift was accepted on behalf of Suryakant by his father, Satyanarayan, the latter could as well give a valid discharge on the receipts. Still, it is noteworthy that he did not give a discharge even once. Under the circumstances we find ourselves completely unable to hold that it was Satyanarayan Mody who alone on behalf of his minor son was in possession of the gifted property. It may be observed that neither the donor nor the donee actually made use of the amount of the fixed deposit receipts by spending any sum for any purpose. The donor was content with her possession over the property before the gift and she remained content with possession and the same kind of enjoyment after the gift. She thought that possession of wealth was itself the enjoyment thereof. This kind of enjoyment continued till her death. Similarly, the benefit of interest which accrued in her favour before the gift, continued to accrue after the gift in the same manner, though jointly with her grandson. Thus, she was not excluded from the possession and enjoyment of the gifted property of from the benefits arising out of the gifted property by the donee at any time before her death. We may now notice the cases which have been relied upon by the applicants learned counsel.
Learned counsel has referred to Attorney-General v. Seccombe. In that case the owner of a farm and a dwelling house thereon by a deed of..... gift executed in 1897 in consideration of natural love and affection, conveyed and assigned the farm with the dwelling house and other building to his great-nephew who resided with him. The donor had no property other than that included in the deed, except an annuity of Pounds 15 chargeable upon certain land belonging to the defendant. After the execution of the deed, the donor continued to reside in the house until his death in 1906. Upon the death of the donor, the Crown claimed estate duty upon the value of the property comprised in the deed on the ground that bona fide possession and enjoyment of the property were not assumed by the donee and thenceforward retained 'to the entire exclusion of the donor, or of any benefit to him by contract or otherwise.' It was held that, though the donor was permitted by the 'donee to, and did, in fact, reside in the house from the date of the deed until his death, there was an entire exclusion of the donor from the possession and enjoyment of the property or of any benefit to him by contract or otherwise, within the meaning of the section, and that, therefore, estate duty was not payable. It appears from the perusal of this case that the learned judge found that, as soon as the donee came of age, the donor ceased to take any part in the management of the farm. He no longer signed cheques on the banking account; he no longer received annuity of Pounds 15 which was charged upon another property belonging to the defendant; and, so far as domestic details were concerned, he no longer even sat at the head of the dinner table, but at the side. It was further found that the defendant no longer paid the annuity of Pounds 15 to the donor, but retained it to pay for the donors board and lodging. It is obvious that the facts and the circumstances of that case were very different from those of the present one. It may be observed that the question whether the donor was entirely excluded from the possession and enjoyment of the gifted property or from deriving any benefit would depend on the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in this respect.
Learned counsel has next referred to Controller of Estate Duty v. Estate of Late Dr. Guruswami Mudaliar. In that case the deceased had put up a superstructure on piece of vacant land which admittedly belonged to his wife. Later he gifted the superstructure to his wife. The question that arose was whether the gift would come within the provision of section 10 of the Estate Duty Act. It was contended on behalf of the Controller of Estate Duty that, inasmuch as the deceased was living with his wife in the building till the end of his life, it should be held that there were certain rights in him in regard to the property. This contention was repelled. It was observed that the living of the deceased with his wife in the building was consistent with their relationship and not because that he retained any interest in the property, that is, in the superstructure which he had absolutely gifted to his wife. It was obvious that this case is also of no help to the petitioner. It was a case of immovable property and it was in the peculiar circumstances of that case that the learned judge found that the husband had no interest left in the gifted property.
He next referred to Rashmohan Chatterjee v. Controller of Estate Duty In that case the deceased settled certain premised in trust for the absolute use and benefit of his two sons in equal shares during their lives and, upon the death of one or both the sons, for the use of the wife or wives of such son or sons with remainder to the male children of the two sons in equal shares per stripes. The upper portion of the premises was leased to the deceased himself on a rent of Rs. 150 per month for a term of five years with effect from the date of the settlement which was 1st July, 1954. The lease expired on 30th June, 1959, but the deceased continued to occupy that part of the premises for a few days thereafter, until his death on July 11, 1959. The question was whether and to what extent estate duty was chargeable in regard to those premises under section 10 of the Estate Duty Act, 1953. It was held that the lease gave to the donor possession and enjoyment of the property itself and the case fell within the statutory change under section 10; the lease at whatsoever rent prevented the entire exclusion of the donor envisaged by that section. The learned judges held that estate duty was payable by the accountable persons, though only on that portion of the premises which was in the occupation of the deceased as a lessee. It was also held that, in order to avoid the mischief of section 10 of the Estate Duty Act, 1953, it must be established that the donee not only assumed bona fide possession and enjoyment of the property taken under the gift but also thenceforward retained it to the entire exclusion of the donor or any benefit to him by contract or otherwise. If the donor has not been entirely excluded, then it is not at all relevant to consider whether the non-exclusion of the donor has been advantageous to the donee or not. Possession and enjoyment by the donor have to be judged in the light of the factual position. It is clear that this case does not help the petitioner at all. In fact, it was learned counsel for the respondent who relied upon this case. Learned counsel for the petitioner has also referred to Controller of Estate Duty v. Birendra Kumar Sen. We do not propose to discuss it at length because this case is also of no help to the petitioner like those referred to above. Learned counsel for the respondent referred to Commissioner of Stamp Duties of the State of New South Wales v. Permanent Trustee Co. of New South Wales Ltd. and Clifford John Chick v. Commissioner of Stamp Duties. These cases deal with general principles but have no direct bearing on the facts and circumstances of the present case and, therefore, we do not propose to deal with them also at length.
It would suffice to say that in the face of the facts and the circumstances which have been narrated above, we think that the Board was quite correct in holding that the provisions of section 10 of the Act were attracted, and our answer to the question set out above is therefore in the affirmative. The respondent will receive costs of this case from the petitioner.
Question answered in the affirmative.