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TMI Blog1971 (7) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... eldest son of the deceased, filed the estate duty return in respect of the properties left by Kedar Nath, as accountable person under the Act. He showed the value of the estate left by the deceased as Rs. 1,57,764. The Assistant Controller of Estate Duty, however, computed the value of the estate as Rs. 3,09,972 and levied the estate duty accordingly. During the assessment proceedings, it was claimed that the deceased had only half share in certain properties. The other half share in those properties belonged to his wife, Smt. Godawari Devi. According to the accountable person, these properties originally belonged to a joint Hindu family having five branches. The deceased was the head of one of the branches, which consisted of himself, his wife and two sons. A partition in the family took place in the year 1936. At that time, the deceased and his two sons also separated. As a result of that partition the deceased and his two sons got 1/3rd of 1/5th share each in the entire joint Hindu family property. The wife of the deceased neither claimed, nor was she allotted, any share in the joint family property. The accountable person, therefore, claimed that the share allotted to the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased was riot a partner. The latter firm paid interest to the minors on the amount standing in their names. The Assistant Controller found that the transfer of accounts from the books of Girdhari Lal Kedar Nath, Tanda, to the books of Messrs. Bhawani Prasad Girdhari Lal, Kanpur, took place on 3rd November, 1953. At that time the amount was transferred only by making book entries and no cash passed from the Tanda firm to the Kanpur firm. It was only on 4th of August, 1955, that for the first time an amount of Rs. 6,000 was remitted from Tanda to Kanpur. This was followed by remittances amounting to Rs. 20,000, Rs. 12,000 and Rs. 25,000 made on 16th of August, 1955, 5th September, 1955, and 6th September, 1955, respectively. According to the Assistant Controller, neither the transfer entries made in the books of the two firms, nor the remittances of cash had the effect of validating the gift alleged to have been made on 9th of May, 1952. In any case as these remittances were made within two years of the death of the deceased, the amount gifted was liable to be included in the estate of the deceased under section 10 of the Act. In the result he included the sum of Rs. 80,000 also in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he circumstances, even if the deceased wanted to make a gift of the money to his grand-children on 9th of May, 1952, the gift was incomplete and invalid and, therefore, the money credited to the account of the grandchildren must be taken to belong to the deceased and deemed to pass on his death on 8th of September, 1955. The Assistant Controller was, therefore, justified in including this amount in the value of the asset of the deceased liable for payment of estate duty. The accountable person then moved an application to the Board for stating the case in respect of five questions and eventually the Board referred the two questions mentioned above for the opinion of this court. Our answer to the first question will depend upon the fact whether as a result of the partition effected in the family of Sri Kedar Nath in the year 1936, his wife became the owner of any share in the ancestral property which was allotted to the branch of L. Kedar Nath. It will also have to be seen whether the share of the wife was included in the share allotted to her husband, L. Kedar Nath, and she thus became owner of half of that property. Learned counsel for the accountable person argued that under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccountable person argued that when the deceased, Kedar Nath, and his two sons divided the family property in the year 1936, Smt. Godawari Devi, wife of L. Kedar Nath, became the owner of the joint family property to the extent of the share equal to that of a son. Even though she did not claim a share in the property at that time it did not mean that she acquiesced in the partition or gave up her rights. She continued to own that share and could enforce it by getting the partition reopened. In the circumstances, the properties allotted to L. Kedar Nath also included the property belonging to Smt. Godawari Devi and to that extent the property did not pass to any one as a result of Sri Kedar Nath's death. Another controversy raised in this connection was about the extent of share which Smt. Godawari Devi had in the property which was allotted to L. Kedar Nath. According to the accountable person, Smt Godawari Devi owned half share in the property and in case it is held that her share had been appropriated equally by her husband and two sons, she was entitled to claim one-fourth share in the property given to each of them. The question regarding the nature of interest that a Hindu mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned judges observed as follows : According to their Lordships of the Privy Council the 'share' which is allotted to the mother on partition is not a share " in the true sense but only a provision for maintenance. (See Debi Mangal Prasad v. Mahadeo Prasad ). Accordingly, she gets no 'ownership' in it till it is actually handed over to her and she is placed in a position to maintain herself out of it, and then her ownership is limited ownership of a Hindu female holding for maintenance: see Pratapmull v. Dhanbati Bibi . Therefore, she cannot question dealings with the estate till she receives actual possession. In our opinion that means that she does riot get a true share. It follows that the 'shares' of the male members of the family are neither diminished nor enlarged by the existence or non-existence of these particular females. Their true share is the one they would have obtained if there had been no females to consider. It is true their enjoyment of this share to the full extent is postponed so long as the ladies are entitled to maintenance, but the property set apart for this purpose falls-for division among the family as it existed on the date of the severance as soon as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the sum gifted. This was done under instructions from the deceased. The entry in the account book itself states that it was being made under instructions from the deceased as gift to the grand-children. The debit entry has been signed by the deceased. The amount said to have been gifted to the grand-children was subsequently transferred from the firm, Girdhari'Lal Kedar Nath, to the firm, Bhawani Prasad Girdhari Lal of Kanpur. This transfer was also effected by making corresponding credit and debit entries in the books of the two firms. The Appellate Tribunal came to the conclusion that the signature underrneath the debit entries in the account of the deceased as also those of the guardians of the minors underneath the account of the minors were made subsequently in order to create evidence for showing the acceptance of the gift. There can be no doubt that the signatures underneath the entries were affixed in order to show that a gift had been made by the deceased to the minors. It, however, does not mean that the signatures are fraudulent. There is nothing on the record to show that the donor and the donee did not append their signatures in the account books soon after the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of the Transfer of Property Act. In the case of Seetharama Ayyar v. Narayanaswami Pillai a Division Bench of the Madras High Court took the view that the words " instrument in writing " in section 130 of the Transfer of Property Act do not mean a document couched in technical language or in any particular form. What is intended is that the transfer should be made in writing and it is sufficient if the intention of the creditor to transfer the debt due to him to the transferee can be gathered from the writing. The fact that an assignment is made in a statement of account by way of any entry would not make any difference. We are, therefore, of opinion that the debit entries made in the account books of the deceased together with the signatures, sufficiently comply with the provisions of section 130 of the Transfer of Property Act and the amount stands transferred to the donees. After that entry had been made any claim of the donor against the firm in respect of that amount came to an end and that claim could be enforced only by the donees to the extent it was gifted to each of them. In the result, we find no defect in the gift said to have been made by the deceased to his grand-c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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