# • G49 CONTROLLER OF ESTATE DUTY, KERALA v. M/S. R. V. VISHWANATHAN & ORS

- **Citation:** [1977] 1 S.C.R. 649
- **Court:** Supreme Court of India
- **Decided:** 1977
- **Case number:** Civil Apeal No. 1576 of 1971
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g49-controller-of-estate-duty-kerala-v-m-s-r-v-vishwanathan-ors-6975
- **Pages:** 12

## Headnote

•
G49
CONTROLLER OF ESTATE DUTY, KERALA
A
V.
M/S. R. V. VISHWANATHAN & ORS.
Sevtember 21, 1976
LH. R. KHANNA, N. L. UNTWALIA AND JASWANT SINGH, JJ.]
B
Estate Duty Act (34 of 1953), s. 10-Gift of property witen deemed to be
;part of lite estate of tite deceased-donor.
The deceased, with a view to convert his proprietary business into partnership business with his four major sons, transferred a sum of Rs. 15,000/- from
his personal account to the credit of each of them. Five days later the partnership deed was executed, treating the sums transferred by the deceased to each
of his four sons as their share capital in the partnership. A day later, the two
minor sons of the deceased were also admitted to the benefit of the partnership.
On the same day, the decease.d transferred a sum of Rs. 45,000/- from his personal account to each of these two minor sons
and an agreement was
also
executed on that day.
That agreement recited that the capital of the partnership would be Rs. 3,15,000 made up by the contribution of Rs. 45,000 by the
.deceased and each of his six sons and that the share of the deceased and his six
sons in profits would be I/7th each.
In the estate duty proceedings that followed the death of the deceased, the
Assistant Controller of Estate Duty applied the provisions of s. 10 of t~e Estate
Duty Act, 1953, and included in the estate of the deceased
the
capital of
Rs. 2,70,000 which was the value of the shares of the six sons in the business.
The Tribunal however held that what, the deceased gifted to his sons was only
.a share in the business and not a gift of cash and that therefore, the sum of
Rs. 2,70,000 could not be included in estate of the deceased. On reference the
High Court confirmed the decision of the Tribunal.
Jn apreal to this' Court, it was contended on behalf of the Revenue that there
was an absolute gift of Rs. 45,000/- by the deceased in favour of each of his
sons and ais that amount was, subsequent to the gift, utilised for the purpose of
.business of which the deceased-donor was at first proprietor and then a p;;rtner,
the case was covered by s. 10.
Dismissing the appeal,
HELD : (I) Property, which is the subject matter of gift, would not be
deemed to be a part of the estate of the deceased, under s. JO, if each of the
two following conditions is satisfied, namely, (a) the donee has bonafide assumed
possession and enjoyment of the property, to the exclusion of the donor, immediately upon the gift, and (b) the donee has retained such possession and enjoyment of the property to the entire exclusion of the donor or of any benefit to
him, by contract or otherwise. The two conditions are cumulative. The second
part has two limbs : the deceased must be entirely exduded, (i) from the property and, (ii) from any benefit by contract or otherwise. The word 'otherwise'
should be construed ejusdem generis and should be interpreted to mean some
kind of legal obligation or some transaction enforceable at law or in equity
which, though not in the form of a contract, may confer a benefit on the donor.
But the words 'by contra·~t or otherwise' in the second limb of the section do' not
control the words 'to the entire exclusion of the donor' in the first limb. Therefore, property gifted will deem to pass on the death of the donor and be subject
to estate duty, even if the possession of the donor of the gifted property is not
referable to· some contractual or other arrangement enforceable in law or in
equity but only to mere filial affection of his sons, [654 A-D]
(2) (a) Whether gifted property should be held to be a part of the estate
of the deceased-donor passing on his death for the purpose of s. 10, would
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650
SUPREME COURT REPORTS
[1977] 1 S.C.R.
depend upon t_he fact as t_o what precisely was the subject matter of the gift and
V.:hether the gift. was of an absolute nature or whether it was subject to certain
nght~.. If the g_1ft of property be made without reservation or qualification o

## Text

•
G49
CONTROLLER OF ESTATE DUTY, KERALA
A
V.
M/S. R. V. VISHWANATHAN & ORS.
Sevtember 21, 1976
LH. R. KHANNA, N. L. UNTWALIA AND JASWANT SINGH, JJ.]
B
Estate Duty Act (34 of 1953), s. 10-Gift of property witen deemed to be
;part of lite estate of tite deceased-donor.
The deceased, with a view to convert his proprietary business into partnership business with his four major sons, transferred a sum of Rs. 15,000/- from
his personal account to the credit of each of them. Five days later the partnership deed was executed, treating the sums transferred by the deceased to each
of his four sons as their share capital in the partnership. A day later, the two
minor sons of the deceased were also admitted to the benefit of the partnership.
On the same day, the decease.d transferred a sum of Rs. 45,000/- from his personal account to each of these two minor sons
and an agreement was
also
executed on that day.
That agreement recited that the capital of the partnership would be Rs. 3,15,000 made up by the contribution of Rs. 45,000 by the
.deceased and each of his six sons and that the share of the deceased and his six
sons in profits would be I/7th each.
In the estate duty proceedings that followed the death of the deceased, the
Assistant Controller of Estate Duty applied the provisions of s. 10 of t~e Estate
Duty Act, 1953, and included in the estate of the deceased
the
capital of
Rs. 2,70,000 which was the value of the shares of the six sons in the business.
The Tribunal however held that what, the deceased gifted to his sons was only
.a share in the business and not a gift of cash and that therefore, the sum of
Rs. 2,70,000 could not be included in estate of the deceased. On reference the
High Court confirmed the decision of the Tribunal.
Jn apreal to this' Court, it was contended on behalf of the Revenue that there
was an absolute gift of Rs. 45,000/- by the deceased in favour of each of his
sons and ais that amount was, subsequent to the gift, utilised for the purpose of
.business of which the deceased-donor was at first proprietor and then a p;;rtner,
the case was covered by s. 10.
Dismissing the appeal,
HELD : (I) Property, which is the subject matter of gift, would not be
deemed to be a part of the estate of the deceased, under s. JO, if each of the
two following conditions is satisfied, namely, (a) the donee has bonafide assumed
possession and enjoyment of the property, to the exclusion of the donor, immediately upon the gift, and (b) the donee has retained such possession and enjoyment of the property to the entire exclusion of the donor or of any benefit to
him, by contract or otherwise. The two conditions are cumulative. The second
part has two limbs : the deceased must be entirely exduded, (i) from the property and, (ii) from any benefit by contract or otherwise. The word 'otherwise'
should be construed ejusdem generis and should be interpreted to mean some
kind of legal obligation or some transaction enforceable at law or in equity
which, though not in the form of a contract, may confer a benefit on the donor.
But the words 'by contra·~t or otherwise' in the second limb of the section do' not
control the words 'to the entire exclusion of the donor' in the first limb. Therefore, property gifted will deem to pass on the death of the donor and be subject
to estate duty, even if the possession of the donor of the gifted property is not
referable to· some contractual or other arrangement enforceable in law or in
equity but only to mere filial affection of his sons, [654 A-D]
(2) (a) Whether gifted property should be held to be a part of the estate
of the deceased-donor passing on his death for the purpose of s. 10, would
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
depend upon t_he fact as t_o what precisely was the subject matter of the gift and
V.:hether the gift. was of an absolute nature or whether it was subject to certain
nght~.. If the g_1ft of property be made without reservation or qualification or
cond1t_10n, that 1~, where th~ gift carries the fullest right known to the law of
exclusive possess10n and en1oyment, any subsequent enjoyment of the benefit
of that property by the donor, in the nature of possession or otherwise would
according to s. 10, attract the levy of the estate duty on the death of the'. donor.
[655 D-E]
George.da Cos/{I v. Controller of Estate Duty 63 ITR 497 and Controller of
Esrnte Duty v. Smt. Parvati Ammal 97 ITR 621 followed.
•
Commissioner of Stamp Duties v. Owens [1953] 88 CLR 67 (88) and
Clifford Jo/m Chick & Anr. v. Commissioner of Stamp Duties [1958] AC 435
A·
(also reported in 37 _ITR 89, Esta,te Duty Section) referred to.
(b) Where the gift is subject to certain rights or the subject matter of the
gift is property shorn of cetrain rights, and the possession or enjoyment of some
benefit in that property by the donor can be ascribed to those rights, that is,
the rights subject to which the gift is made or the rights- shorn of which the
property is gifted, in such cases, the subject-matter of the gift shall not be
deemed to pass on the death of the deceased donor. If the deceased donor
delimits the interest he is parting with and possesses m,d enjoys some· benefit
in the property not on account of the interest parted with but because of the
interest still retained by him, the interest parted with shall not be deemed to be
part of the estate of the deceased-donor passipg on his death for the purpose
of s. 10. The principle is that by retaining something which he has never given,
a donor does not bring himself within the mischief of that section, nor would
the provisions of the section be attracted because of some benefit accruing to
the donor on account of what was retained by him. [657 C-E)
H. R. Munro & Ors. v. Commissioner of Stamp Duties [1934] AC 61 apJ>lied.
t
Controller of Estate Duty, Madras v. C. R. Ramacha11dra11 Gounder 89 ITR
l.
448 followed.
(3) Jn the present case, accordihg to the Tribunal's finding the deceased
transferred 6/7th share in the busines& in favour of the sons and retained !/7th
share and there is no infirmity in this finding.
The transfer of Rs. 45,000 in
favour of each of the sons was by book entries and not in cash. The transfer,
the execution of the partnership deed and the agreement, were all parts of one
integrated transaction, the object of which was to bring about a transfer of 6/7th
share of the deceased in his business in favour of his sons, so that he and his sons
might have each !/7th share in the business. There was no absolute transfer of
,Rs. 2,70,000 in favour of his sons, but the transfer was made subject to the
condition that the sons would use it as capital not for any benefit of the deceased
donor but for each of them becoming entitled to 1/7th share in the business.
No benefit of any kind was enjoyed by way of possession or otherwise of the
subject-matter of the gift, by the deceased.
Whatever benefit was enjoyed by
him subsequent to the date of the gift was on account of the fact that he held
1 /7th share in the business which share he retained throughout and never parted
with. Therefore, no question can possibly arise for the inclusion of thesaid
6/7th share or of the amount of R•. 2,70,000/- in the estate of the deceased.
[660 D-FJ
CIVIL APPELLATE JURISDICTION : Civil Apeal No. 1576 of 1971.
(From the Judgment and Order dated 27-10-1970 of the Ker ala
High Court in l.T.R. No. 42/68).
R. M. Mehta, P. L. Juneja and R. N. Sachthey, for the Appellant.
K. S. Ramamurthi and S. Balakrishnan for the Respondents.
The Jud~ent of the Court was delivered by
KHANNA, J.
This appeal on certificate is by the Controller of
Estate Duty aiainst the judgment of the Kerala High Court whereby
CONTROLLER OF ESTATE DUTY V. M/S. R. V. VISHWANATHAN 651
(Khanna, !.)
the High Court answered the following question referred to it under
section 64 ( 1) of the &tate Duty Act (hereinafter referred to as t!he
Act) in favour of the accountable persons and against the revenue:
"Whether on the facts and in the circumstances of the
case, the Appellate Tribunal was right in holding that the
sum of Rs. 2,70,000 is not includible in the estate of the
deceased under section 10 of the Estate Duty Act ?"
The matter relates to the estate of R. V. Veeramani Iyer who died
on November 18, 1960. The accountable persons are the six sons of
the deceased. The deceased was the proprietor of two business concerns, one dealing in yarn and carryini on money-lending business
under the name and style of P. R. N. Ramanatha Iyer & Co. and the
other dealing in piece-goods under the name and style of R. V.
Veeramani Iyer. With a view to convert the business of the aforesaid
two concerns into partnership business with his four major sons, the
deceased transferred a sum of Rs. 45,000 from his personal account
to the credit of each of his four adult sons on September 12, 1955.
On September 17, 1955 a partner.ship deed was executed by the
deceased and his four adult sons constituting a partnership firm under
the name and style of P. R. N. Ramanatha Iyer & Co. The sums of
Rs. 45,000 transferred by the deceased to each of his four sons were
treated as their share capital in the partnership business.
A day later
on September 18, 1955 two mi!lor sons of the deceased
were
also
admitted to the benefit of the said partnership. Agreement dated September 18, 1955 was executed in this connection and in that agreement the decease.ct acted as guardian of his minor sons. The deceased
also transferred on September 18, 1955 a sum of Rs. 45,000 from his
personal account in the firm to each of his two minor sons who were
admitted to the benefits of partnership.
One of the minor
sorus
attained majority on December 21, 1957 and he was taken as a regular partner by agreement dated March 29, 1958. The other son contiimed to be a minor till the date of the death of the deceased.
The
share of the deceased and each of his six sons, including the minor son,
was one-seventh in the profits of the partnership till the date of the
death of the deceased.
In the estate duty proceedings that followed the death of the deceased, the accountable persons included the value of a one-seventh
share in the partnership business in the estate of the deceased which
along with the movables was declared at Rs.
1,05,236.
The asse:ssment was completed on January 18, 1962.
The Assistant Controller
of Estate Duty by applying the provisions of section 10 of the
Act
included the following items in the estate of the deceased :
( 1) The capital of Rs. 2, 70,000;
(2) Subsequent accretion in the form of profits till the date of
death of the deceased; and
(3) 617th share of goodwill, the quantum of goodwill being
computed at Rs. 1 lakh.
I0-1234SCT/76
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
The principal value of the ~state was determ~~ed at Rs. 8,43,214.
The accountable persons preferred appeal before the Appellate
Controller of Estate Duty. It was contended on their behalf that the
value of the share of the sons in the business should not be included
in the estate of the deceased under section 10 -and that the valuation
of such shares as determined by the Assistant Controller was excessive.
· B
The Appellate Controller held that so far as the gift of the share in the
business was concerned, it could not be included in the estate of the
deceased under section 10 of the
Act.
Regarding the gift of
Rs. 2, 70,000 by the deceased in favour of his sons, the Appellate Controller held that the same could be included in the estate of the deceased under. section 10.
Accordingly the Appellate Controller sustained the inclusion of Rs. 2,70,000 and deleted the balance of
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Rs. 3,40,054 which amount also included six-seventh share
of the
goodwill. The value of the goodwill was reduced by the Appellate Controller from Rs. 1 lakh to Rs. 75,000.
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Against the decision of the Appellate Controller the accountable
persons filed appeal to the Appellate Tribunal and claimed that the
inclusion of Rs. 2,70,000 in the estate of the deceased was wrong in
law.
It was urged that although the deceased purported to transfer
a sum of Rs. 45,000 in favour of each of his sons, it did not represent
a transfer of cash and the transfer really represented a transfer of a
share in the business. The Tribunal elaborately went into the clauses
in the partnership deed and came to the conclusion that what the deceased gifted to his sons was only a share in the business and not a
gift of cash. The Tribunal, therefore, held that the sum of Rs. 2,70,000
could not be included in the estate of the deceased, and ordered the
deletion of that sum.
On application made by the Controller of Estate Duty, the ques-
. tion reproduced above was referred to the High Court.
The High
Court held that the subject-matter of the transfers in favour of each
of the sons of the deceased were the assets to the extent of Rs. 45 ,000
"subject to the rights of those assets being available for the continued
use of the business".
The contention advanced on behalf of the
revenue that there had been complete transfer of the assets to the extent
of Rs. 45,000 to each of the sons and that thereafter the sons allowed
the subject matter of the gift to be made use of by the donor, was
rejected.
It was further observed as under :
"The Tribunal has taken the view that the subject matter of
the gift was property which was subject to the rights of the
business to have that property being utilised for the purpose
of business and they have expressed themselves by saying
that the transfer was shorn of the rights of the partnership.
The decision, we think, is correct. We therefore answer the
question referred to us in the affirmative, that is, in favour
of the assessee and against the department."
In appeal before us Mr. Mehta on behalf of the appellant has argued that there was absolute gift of Rs. 45,000 by the deceased in
favour of each of his sons and as that amount was subsequent to the
gift utilised for the purpose of business of which the deceased was at
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CONTROLLER OF ESTATE DUTY V. M/S. ·R. V. VISHWANATHAN
653
(Khanna, !.)
first a proprietor and then a partner, the' deceased should be held to
have enjoyed the benefit of the gifted amount subs~quent to the date
of gift. The case, it is accordingly submitted, is covered by section 10
of the Act, and the· High Court was in error in .answering the que1Stion
referred to it against the revenue.
As against that, Mr. Ramamurthy
on behalf the respondents has controverted the above. contention and
has canvassed for the correctness 'Qf !he view taken by the Trib\lll'al
and the High Court. It has also been submitted by Mr. Ramamurthy
that the fa1dings of fact arrived at by the Tribunal on consideration
of material fac;ts regarding the subject matter of the gift must be accepted as correct in these advisory proceedings.
It may be appropriate at this stage to refer to the provisions of the
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Act having bearing on the question with 'which we are concerned.
According to section 9 of the Act, as it stood at the relevant time,
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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, settleJllent upon persons 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 : Provided that in the case of gift made for public charitable
purposes the period shall be six months. Section 10 of the Act which
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has a material bearing read as under at the relevant time :
"10. Gifts whenever made where donor not entirely excluded.-Property taken under any gift,
whenever made,
shall be deemed to pass on the donor's 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."
The intention of' the legislature in enacting section I 0 of the Act
was to exclude from liability to estate duty certain categories of gifts.
Property, which is the subject matter of gift, would however be deemed
to be a part of the estate of the deceased donor under section 1 O unE
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less the donee assumes immediate exclusive and bona fide possession
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and enjoyment of the subject-matter of the gift, and there is no beneficial interest reserved to the donor by contract or otherwise. The section must be grammatically construed as follows :
"Property taken under any gift, whenever made, of which
property bona fide possession and enjoyment shall not have
been assumed by the donee immediately upon the gift, and of
which property bona fide possession and enjoyment shall not
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have been thenceforward retained by the donee to the entire
exclusion of the dono~ from such possession and enjoyment,
or of any benefit to him, by con tr.act or otherwise ...... "
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SUPREME.COURT REPORTS
[1977) 1 S.C.R.
The crux of the section lies in two parts :
(1 ) the donee must
bona fide have assumed possession and enjoyment of the property,
which is the subject-matter of the gift, to the exclusion of the donor,
immediately upon the gift, and (2) donee must haVle retained such
possession and enjoyment of the property to the entire exclusion of
the donor or of any benefit to him, by contract or otherwise.
Both
these conditions are comulative.
Unless each of these conditions is
satisfied, the property would be liable to estate duty under section 10
of the Act.
The second part of the section has two limbs the deceased must be
entirely excluded, (i) from the property, and (ii) from any benefit by
contract or otherwise.
The word "otherwise" should be
construed
ejusdem generis and should be interpreted to mean some kind of legal
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obligation or some transaction enforceable at law or in equity which,
though not in the form of a contract, may confer a benefit on the donor.
The words "by contract or otherwise" in the second limb of the section
do not control the words "to the entire exclusion of the donor" in the
first limb. In order to attract this section, it is consequently not necessary that the possession of the donor of the gifted property must be
referable to some contractual or other arrangements enforceable
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law or in equity. Even if the donor is content to rely upon the mere
filial affection of his sons with a view to enable him to continue to
reside in the house, it cannot be said that he was "entirely excluded
from possession and enjoyment" within the meaning of the first limb of
the section and, therefore, the property will be deemed to pass on the
death of the donor and will be subject to levy of estate duty
(see
George da Costa v. Controller of Estate Duty(') and Controller of
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Estate Duty v. Smt. Amma/(2).
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The object underlying a provision like section 10 of the Act was
explained by Isaacs J. in the case of John Lang v.
Thomas Prout
Webb( 3) decided by the High Court of Australia while dealing with a
similar provision as under :
"The owner of property desiring to make a gift of it to
another may do so in any manner known to the law. Apparent gifts may be genuine or colourable, and experience has
shown that frequently the
process
of
ascertaining
their
genuineness is attended with delay, expense and uncertaintyall of which are extremely embarrassing from a public revenue standpoint.
With a view to avoiding this inconvenience, the legislature has fixed two standards, both of them consistent with
actual genl.lineness, but prima facie indicating a colourable
attempt to "escape probate duty. One i~ the stand~r~ of time.
A gift, however, real and bona fide, 1f made w1thm twelve
months before the donor's death is for the purpose of duty
regarded as not made.
The other is. co~d~ct wh~ch at fi.rst
sight and in the absence of explanat10n 1s mcons1stent with
(1j 63 I.T.R. 497.
(2) 97 J.T.R. 621.
(3) [1912! 13 C.L.R. 503.
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CONTROLLER OF ESTATE DUTY V. M/S. R. V.
VISHWANATHAN
(Khanna, J.)
the gift.
The prima facie view is made by the legislature
conclusive. If the parties to the transaction choose to act so
as to be in apparent conflict with its purport, they are to be
held to their conduct.
The validity of the transaction itself is left untouched,
because it concerns themselves alone. But they are not to
embarrass the public treasury by equivocal acts."
655
It may be mentioned that there has been amendment of section 10
of the Act by Finance Act, 1965 (Act 5 of 1965) and a second proviso has been added to that section, according to which a house or part
thereof taken under any gift made to the spouse, son, daughter, brother
or sister, shall not be deemed to pass on the donor's death by reason
only of the residence therein of the donor except where a right of
residence therein is reserved or secured directly or indirectly to the
donor under the relevant disposition or under any collateral disposition.
We are, however, concerned with section 10 as it stood before
the amendment.
·
The question as to whether gifted property should be held to be
a part of the estate of the deceased donor passing on his death for the
purpose of section 10 of the Act is not always free from difficulty. It
would depend upon the fact as to what precisely was the subject matter
of the gift and whether the gift was of an absolute nature or whether
it was subject to certain rights.
There is a fine but real distinction
between the two types of cases. All the same, it is quite often a vexed
question to determine on what side of the line the facts of the case fall.
The line, though clearly demarcated, is thin and the cases near the
borderline often pose problem, the solution of which calls for a touch
of judicial refinement and forensic subtlety.
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Broadly speaking, if the gift of property be made without reservation· or qualification or condition, or to put it in the words of Dixon
CJ. in the case of Com11J:.issioner of Stamp Duties v. Owens('), where
the gift carries the fullest right known to the law of exclusive possession
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' and enjoyment, any subsequent enjoyment of the benefit of that property in the nature of poosession or otherwise would attract the levy
of estate duty on the death of the donor according to section 10 of the
Act.
Such were the cases of Clifford John Chicle & A nr. v. Commissioner of Stamp Duties.(') decided by the Judicial Committee and
George da Costa v. Controller of Estate Duty (supra) and Controller
of Estate Duty v. Smt. Parvati Ammal (supra) decided by this Court.
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The case of Clifford John Chick (supra) was under section i02
of the New South Wales Stamp Duties Act, 1920-56 similar to section
10 of the Act.
In that case a father transferred in 1934, by way of
gift, to one of his sons pastoral property. The gift was made without
reservation or qualification or condition. In 1935, some 17 months
after the gift, the father, the donee-son and another son entered into
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an agreement to carry on in partnership the business of graziers and
"1.,
(1) [1953] 68 C.L.R. 67, 88.
(2) [1958] A.C· 435-37 I.T.R. 89.
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SUPREME COURT REPORTS
[1977] 1 s.c.R.
stock dealers.
The agreement provided,
inter alia,
that the father
should be the manager of the business and that his decision should be
final and conclusive in connection with all matters relating to its conduct; that the capital of the business should consist of the
livestock
and plant then owned by the respective partners; that the business
should be conducted on the respective holdings of the partners and
such holdings should be used for the purposes of the partnership only;
that all lands held by any of the partners on the date of the agreement
should remain the sole property of such partner and should not on
any consideration be taken into account as or deemed to be an asset
of the partnership and any such partner should have the able and free
right to deal with it as he might think fit. Each of the three partners
owned a property, that of the donee-son being that which had been
given to him by his father in 1934.
Each partner brought into the
partnership, livestock and plant, and their three properties were thenceforth used for the de-pasturing of the partnership stock. This arrangement continued up to the death of the father in 1952. It was held that
the value of the property given to the son in 1934 was to be included
in computing the value of the father's estate for the purpose of death
duty. While it was no't' disputed that the son had assumed bona fide
possession and enjoyment of the property immediately upon the gift to
the entire exclusion of the father, it was found that he had not thenceforth retained it to the father's entire exclusion, for under the partnership agreement the partners and each of them were in possession and
enjoyment of the property so long as the partnership subsisted.
The
Judicial Committee held that where the question is whether the donor
has been entirely excluded from the subject-matter of the gift, that is
the singfo fact to be determined, and, if hi< has not 9e~u so excluded,
the eye need look no further to see whether his non-exclusion :-:~~ been
advantageous or otherwise to the donee. In the opinion of the Judiciai
Committee, it was irrelevant that the father gave full consideration for
his rights as a member of the partnership to possession and "enjoyment
of the property that he had given to his son.
In the case of George da Costa (supra) the deceased had purchased a house in the j9i!lt names of himself and his wife
in
1940.
They made a gift of the house to their sons in October 1954. The
document recited that the donees had accepted the gift and that they
had been put in possession. The deceased died on September 30,,
1959. The Controller included the value of that house in the princi-.
pal value of the estate that passed on the deceased's death, under section 10 of the Estate Duty Act, 1953. The Board found that, though
the deceased had gifted the house four years before his death, he still
continued to stay in the house till his death as the head of the family
and was also looking after the affairs of the house; and, further, that
though the property stood in the joint names of the deceased and his;
wife, the wife was merely a name-lender and the entire property belonged to the deceased. It was held by this Court that the value of
the property was correctly included in the estate of the deceased
as
property deemed to pass on his death under section 10, and that the
whole property and not merely half of it could be deemed to have
passed for the purposes of the estate duty assessment.
In the case of Smt. Parvati Ammal (supra) on March 11, 1955
the deceased executed a deed whereby he gave the property in which
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CONTROLLER OF ESTATE DUTY V. M/S. R. V. VISHWANATHAN 657
(Khanna, l.)
he was carrying on the business of boarding and lodging absolutely to
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his five sons in equal shares.
Thereafter, on June 25, 1955 he took
the property on lease from the sons and carried on the business
as
before.
Later on, the deceased gave the boarding house on sub-lease
to a third-party. The deceased died on April 6, 1957, and the question was whether the entire value of the property was liable to be included in the principal value of the estate of the deceased as property
deemed to pass on his death under section 10 of the Estate Duty Act,
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1953. It was held by this Court that the entire value of the property
and not merely the value of the right to possession and enjoyment in
the hands of the deceased as a lessee was. liable to be included in the
principal value of the estate of the deceased as property deemed to pass
on his death under section 10.
The subject-matter of the
gift was
found to be the full ownership in the property without any diminution.
The other type of cases are those where the gift is subject to certain rights or the subject matter of the gift is property shorn of certain
rights and the possession or enjoyment of some benefit in that property
by the donor can be ascribed to those rights, i.e.,
rights subject to
which the gift is made or rights shorn of which the property is gifted,
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in such cases the subject matter of the gift shall not be deemed to pass
on the death of the deceased donor.
To put it in other -words, if the
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deceased owner delimits the interest he is parting with and possesses
and enjoys some benefit in the property not on account of the interest
parted with but because of the interest still retained by him, the interest parted with shall not be deemed to be part of the estate of the
deceased donor passing on his death for the purpose of section 10 of
the Act.
The principle is that by retaining something which he has
never given, a donor does not bring himself within the mischief of that
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section, nor would the provisions of the section be attracted because of
some benefit accruing to the donor on account of what was retained
by him.
Two cases, one decided by the Judicial Committee and another by
this Court, would furnish illustrations of matters falling in this category. The case decided by the Judicial Committee is H. R. Munro &
F
Ors. v. Commissioner of Stamp Duties(') and that decided by this
Court is Controller of Estate Duty, Madras v.
C. R. Ramachandra
Gounder(').
In the first of these two cases, in 1909 Munro,
the owner of
35,000 acres of land in New South Wales on which he carried on the
business of a grazier, verbally agreed with his ·six children that thereG
after the business should be carried on by him and them as partners
under a partnership at will, the business to be managed solely by
Munro, and each partner to receive a specified share of the profits. In
1913, Munro transferred by way of gift all his right title and interest
in portions of hiJS land to each of his four sons and to trustees for each
of his two daughters and their children.
The evidence showed that
the transfers were taken subject to ~he partnership agreement ~nd on
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the understanding that any partner could withdraw and work his land
(1)[1934] A.C.61.
(2) 88 I.T.R. 488.
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
separately. In 1919 Munro and his children entered into a formal partnership agreement, which provided that during the lifetime of Munro,
no partner sh~ld withdraw from the partnership.
On the death of
Munro in 1929 the land transferred in 1913 was included in assessing
his estate to death duties under section 102 of the Stamp Duties Act,
1920-1931 (N.S.W.). The Judicial Committee held that the property
comprised in the transfers was the land separated from the rights therein belonging to the partnership, and was excluded from being dutiable
because the donees had assumed and retained possession thereof, and
any benefit remaining in the donor was referable to the
partnership
agreement of 1909, not to the gifts.
The relevant provisions of section 102 referred to above, it may
be stated, were similar to those of section 10 of the Act. Lord Tomlin,
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speaking for the Judicial Committee, observed :
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"It is unnecessary to determine the precise nature of the
right of the partnership at the time of the transfers. It was
either a tenancy during the term of the partnership or a
licence coupled with an interest.
In either view what was
comprised in the gift was, in the case of each of the gifts to
the children and the. trustees, the property shorn of the 1ight
which belonged to the partnership, and upon this footing it is
in their lordship's opinion plain that the donee in each case
assumed bona fide possession and enjoyment of the gift immediately upon the gift and thenceforward retained it to the exclusion of the donor."
In the case of Controller of Estate Duty, Madras v. C. R. Ramachandra Gounder (supra), the deceased who was a partnec in a firm
·owned a house property let to the firm as tenant-at-will. In August,
1953, he executed a deed of settlement under which he transferred the
property let to the firm to his two sons absolutely and irrevocably
and, therefore, the firm paid the rent to the donees by crediting the
amount in their accounts in equal shares.
The deceased further
directed the firm to transfer from his account a sum of Rs. 20,000 to
the credit of each of his five sons in the firm's books with effect from
April 1, 1953, and he also informed them of this transfer. An amount
of Rs. 20,000 was credited in each of the sons' accounts with the firm.
The sons did not withdraw any amount from their accounts in
the
firm and the amounts remained invested with the firm for which interest at 7t per cent was paid to them. The deceased continued to be a
partner of the firm till April 13, 1957, when the firm was dissolved
arid thereafter he died on May 5, 1957. The question was whether
the value of the house property and the sum of Rs. one lakh could be
included in the principal value of the estate of the deceased as property
deemed to pass under section 10 of the Estate Duty Act, 1953. It was
held by this Court that neither the house property nor the sum of
Rs. one lakh could be deemed to pass under section 10. The first two
conditions of the section were satisfied because there was an unequivocal transfer of the property by a settlement deed and of the sum of
Rs. one lakh by crediting the amount in each of the sons' accounts with
the firm which thenceforward became liable to the sons for payment
of that amount and the interest thereon; the possession which the donor
tCONTROLLER 'OF ESTATE DUTY V. M/S. R. V.
VISHWANATHAN
659
(Khanna, J.)
•Could give was the legal possession which the circumstances and the
nature of the property. could admit and this the donor had given. The
.benefit the donor had as a member of the partnership was not a benefit
referable in any way to the gift but was unconnected .therewith.
Coming to the facts of this case, we find that according to the
:agreed statement of the case, the deceased transferred the sum of Rs.
45,0QO from his personal account to the credit of each of his four
.sons 'on September 12, 1955 with a view to convert the business
.carried .on by him into a partnership. business with his major sons.
Clause 4 of the deed of partnership which was executed by. the de-
.ceased and his four adult sons on Septeii1ber 17, 1955 was a~ under
"4. The capital of the part~rship for the present, shall
be Rs. 2,25,000/-
con~ributed equally by the five partners
at Rs. 45,000/ each but the partners shall have the option
to increase the capital as and when required, each partner
contributing the additional capital required in the same proportion as the original contribution and all such
contributions including tlie original investment shall carry
no
interest for any duration.
'The present capitals represented by the assets, outstandings, liabilities and goodwill
of
the businesses P. R. N. RAMANATHA IYER & CO. and
R. V. VEERAMANI IYER which have been taken ov'er as
going concerns and made part and parcel of the partnership
business hereby constituted."
The agreement which was entered into on the following clay by
the deceased and his four adult sons relating to the admission
of
the two minor sons of the deceased to 'the benefits of partnership
expressly recited that Rs. 45,000 had been transferred by the deceased
from his personal account to the credit of each of the.minor sons. It
was also stated that the capital of the partnership would be
Rs.
3,15,000 made up by contribution of Rs. 45,000 by the deceased and
.each of his six sons and that the share of the deceased and his six sons
in profits would be one-seventh each.
The transfer of Rs. 45,000 by
book entries in favour of each of the four adult sons on September
12, 1955 and in favour of each of the minor sons on September 18,
19 5 5, the execution of the_ partnership deed on September 17, 19 5 5
and of th'e other agreement on September 18, 1955, in our opinion,
were all parts of one integrated transaction, the object of which was
to bring about transfer of six-seventh 'share of the deceased in his business in favour of his sons so that he and his sons might have each onesevent? share in the business.
The Tribunal has expressly recorded
a finclmg that what the decased gifted to his sons was only a share in
the business. The Tribunal also expressed its full agreement with the
following observations made by the Assistant Controller :
"From the facts of the case it is clear that the gift in
favour of the sons represented amount8 transferred by book
entries to the. account of each of 'the sons who were admitted
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
to the partnership and that it does not actually represent
cash sums of Rs. 45,000/- as such.
By virtue of these
transfer entries the sons of the deceased got a share in the
business.
Thu_s the gift cannot be construed as a gift of
cash but it only represented a gift of a share in the business. ·
By virtue of this gift, the sons had necessarily to become
partners.
The subject matter of the gift is the investment
in the business and such investment was compulsory or in
other words gift was for the specific purpose of admission
into the business as partners and for no other purpose."
The above finding of the Tribunal has been arrived at upon the
material facts and relevant circumstances ot the case and in answering
the question referred to by the Tribunal, we must proceed upon the
basis of the correctness of the above finding.
Although Mr. Mehta
has tried to assail that finding, nothing cogent has been brought to
our notice as might indicate any infirmity in that finding.
The circumstances of the case indeed point to the conclusion that the said
finding is well founded.
In the light' of the finding that the deceased transferred six-seventh
share in the business in favour of the sons and retained only oneseventh share, no question can possibly arise for the inclusion of the
said six-seventh share or of the amount of Rs. 2,70,000 in the estate
of the deceased.
The transfer of Rs. 2,70,000 by the deceased m
favour of his sons was not in cash but was by means of book entries.
The transfer of that amount was a part of the scheme, as stated above,
to transfer six-seventh share in the business in favour of the sons.
There was no absolute transfer of Rs. 2,70,000 in favour of the sons
but the transfer was made subject to the condition that the sons would
use it a·s capital not for any benefit of the deceased donor but for each
of them becoming entitled to one-seventh share in the businss.
No.
benefit of any kind was enjoyed by way of possession or otherwise
by the deceased under the gift of the subject matter of the gift. Whatever benefit was enjoyed by the deceased subsequent to the date of
the gift was on account of the fact that he held one-seventh share in
the business, which share he retained throughout and never parted
with.
No extra benefit was also conferred under the deed of partnership upon the deceased although some extra benefit was conferred upon
two of the major sons in the form of remuneration because of their
active and full participation in the business.
Keeping in view
the
position of law discussed earlier, it is p!a:in that the facts of the case
would not fall within the ambit of section 10 of the Act.
We, therefore, agree with the High Court that the question referred
to by the Tribunal should be answered in favour of the accountable
persons and against the revenue.
The appeal fails and is dismissed
with costs.
H
V. P. S.
Appeal dismissed.