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TMI Blog1971 (12) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosed in the statement of the case. But, that is of no moment. It should, however, be noted that the share scrips were in the name of Sushila Chawla, the wife. The Assistant Controller of Estate Duty included the value of the shares in the principal value of the estate of the deceased. His order was affirmed on appeal by the Appellate Tribunal. Under section 64(1) of the Estate Duty Act (hereinafter called "the Act"), the Appellate Tribunal has referred for opinion of the court this question : "Whether, on the facts and in the circumstances of the case, the inclusion of the sum of Rs. 77,238 on account of the value of shares held by the deceased in the name of his wife, in the principle value of the estate passing on his death, is justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal title to the property. The law imposes an obligation in the nature of trust on the benamidar (see the Trusts Act, section 82) : He is a constructive trustee. He holds the property for the benefit of the person who has the real title to it (see Gopeekrist Gosain v. Gungapersaud Gosain ). When a transaction of purchase is proved to be benami, courts give effect to the real title, and not to the nominal title. There are four exceptions to this rule, but they are not material in this case. If a creditor of the person who has the real title has obtained a decree for money against that person, he may execute the decree by attachment and sale of the property held as benamidar in the name of a third person. (See Musadee Mahomed Cazum Sherazee v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe of section 5(1). But the true object of section 6 is to widen the net of section 5(1). The scheme of the Act is two-fold. Firstly, there are properties which pass on the death of a person. Section 5(1) imposes duty on their value. Secondly, there are properties in which the deceased had an interest or power of appointment and which really do not pass on his death. The scheme of the Act is to impose duty on the value of such properties also. In the second class will fall provisions like sections 6,7, 8, 9 and 10. The Act creates a fiction of law to declare that the properties mentioned in those sections will be deemed to pass on the death of a person, though they do not "pass" in fact. This two-fold scheme is made plain by the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in assessing the duty on the estate of the deceased. The court said : "....... so long as the deed stands in the name of another person, it could not be said that it was competent for the deceased to dispose of the property. In that case counsel for the Board seems to have conceded the point. He did not make a distinction between the scope of section 5(1) and section 6 of the Act. And for this reason we find it difficult to share the view taken in that case. The second case is again a decision of the Andhra Pradesh High Court. That case is distinguishable on facts. There the finding was that the deceased did not have title to the property. It is true that the decision in the first case was also referred to in the second case. But ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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