TMI Blog1968 (2) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. The Assistant Controller proceeded to levy estate duty. In fixing estate duty, he included 1/5th share in certain immovable property situated at Hardwar and Jhunjhnu as property of Chiranjilal Khetan deceased. The valuation of that share was fixed at Rs. 54,720.00. Deokinandan appealed against the order of assessment. The appeal was partly allowed by the Central Board of Revenue. But the Central Board of Revenue did not accept the appellant's contention that the property at Hardwar and Jhunjhnu was endowed property. Being dissatisfied with the appellate decision, Deokinandan applied for a reference to this court. Accordingly, the Central Board of Revenue has referred the following question of law to this court : "Whether, on the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site, that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposal of the present reference. It appears from the appellate order that the Central Board of Revenue permitted the filing of an affidavit on a limited question, and that the affidavit actually filed went a good deal beyond the limited question. We may not, therefore, make use of the lengthy affidavit filed before the Central Board of Revenue. In the statement of the case we find the following observations by the Central Board of Revenue : " The Assistant Controller observed that in the case of Commissioner of Income-tax v. Shri Thakurji Lakshmi Nathji in which the Allahabad High Court held that the endowment created by Seth Ram Bilas Rai and others in 1919, was a public religious charitable trust, no reference had been made to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Controller and the Central Board of Revenue relied upon the following circumstances in support of the view that the property in dispute belonged to the Hindu undivided family : 1. The deed of endowment of the year 1919 made no mention of the property now in dispute : 2. The property was recorded in the name of Seth Ram Bilas Rai till his death in the year 1936 ; 3. Seth Chiranjilal wrote to the Municipal Board requesting that lease be renewed in favour of the firm, Seth Ram Karan Das Ram Bilas Rai. On the other hand, the Central Board of Revenue appears to have found the following facts, which support the assessee's contention : 1. The income from the property at Hardwar and the shops at Jhunjhnu was included in the account books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y detailed at the foot of the plaint of the suit. On the other hand, in the written statement filed by defendants in that suit the property now in dispute was included as endowed property. The written statement appears to have been filed some time in April, 1957. That was soon after the death of Chiranjilal Khetan. If regard be had to the three circumstances upon which the Assistant Controller and the Central Board of Revenue have relied in support of the view that the property in dispute belonged to the Hindu undivided family, it will be seen that each one of the circumstances is in no way inconsistent with the case of the assessee that the property is indeed endowed property. The deed of endowment executed in the year 1919, does not men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilal and his heirs throughout, that the property is endowed property, Deokindan and his mother while effecting a saving of a few thousand rupees in estate duty, are likely to lose the property altogether on the case taken by them, a position which they would not have assumed if the property was not in fact endowed property. It is true that there is no deed of dedication covering the property in dispute. But no writing is necessary to create an endowment (see Principles of Hindu Law by Mulla, 13th edition, section 407 at page 438). The proper inference to be drawn from application of profits of property has been explained in the Principles of Hindu Law by Mulla under section 409 at page 441 : " Where there is no instrument of grant, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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