Full Judgment Text
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PETITIONER:
CONTROLLER OF ESTATE DUTY, MADRAS
Vs.
RESPONDENT:
N. SHANKARAN ETC.
DATE OF JUDGMENT01/11/1991
BENCH:
RANGNATHAN, S.
BENCH:
RANGNATHAN, S.
FATHIMA BEEVI, M. (J)
OJHA, N.D. (J)
CITATION:
1991 SCR Supl. (2) 167 1992 SCC Supl. (1) 447
1991 SCALE (2)958
ACT:
Estate Duty Act, 1953--Sections 21(5), 9, 27--’Blend-
ing’-’Partition ’--Whether ’disposition ’.
HEADNOTE:
A common question of law that arises for determination
in these appeals by special leave is whether the act of a
member of a joint family by which he impresses his individu-
al property with the character of joint family property or
"throws" it into the hotch potch of the joint family or
"blends" it with the joint family property is a ’disposi-
tion’ within the meaning of the Estate Duty Act, 1953. In
Civil Appeal No. 1204 of 1979 the facts are: One Natesan
Chetty who died on 1.3.1972, was the Karta of a Hindu Undi-
vided Family, consisting of himself and his four sons. He
owned five house properties in Madras, On 18.6.70 and
16.9.1970, he made declarations by which he impressed the
properties with the character of joint family properties and
further declared that they would thereafter belong to HUF of
which he was the Karta. Thereafter a partition was effected
in the family in March 1971 in which two of the properties
came to his share. Sri Chetty had also borrowed Rs. 46,800
from HUF out of the rental income from the properties for
his business purposes. These borrowings were duly repaid in
April, 1971.
In completing the assessment to estate duty of the
estate passing on the death of Natesan Chetty, the Assistant
Controller of Estate Duty held that the declarations made by
the deceased on 18.6.70 and 16.9.70 were "dispositions"
within the meaning of the said expression as defined in the
second explanation to section 2(15) of the Estate Duty Act.
He further held that since the declarations were made with-
out consideration, they amounted to gift which had been made
within two years of the date of death and hence liable to be
assessed as part of the estate passing on death under sec-
tion 9 of the Act. The two properties which had fallen to
the share of the deceased passed on the death of the de-
ceased. He accordingly included Rs. 1,22,500 the value of
the other three properties also in
168
the principal value of the estate. The Asstt. Controller
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further held that a sum of Rs. 46,800 being the loan taken
and discharged by the deceased should also be added back in
computing the principal value of the estate by virtue of
section 46(2) of the Act.
Dissatisfied with the conclusion of the Asstt. Control-
ler, the accountable person preferred an appeal to the
Appellate Controller of Estate Duty which was successful.
Thereupon the Department preferred an appeal to the Tribunal
which, following the decision of the Madras High Court in
Rajamani Ammal v. Controller of Estate Duty, (1972) 84
I.T.R. 790 held that the sum of Rs. 1,22,500 could not be
included in the value of the estate passing on the death and
consequently, that the add back of Rs. 46,800 was also not
justified. Thereupon the Controller of Estate Duty applied
under Section 64 (1) of the Act for a reference to the
Madras High Court for its opinion on the two questions. The
Madras High Court was of the opinion that the basic question
at issue was covered by the earlier decisions of the Court
in Rajamani Ammal v. Controller of Estate Duty and Control-
ler of Estate Duty v. Smt. Mookammal, (1978) 110 I.T.R. 581.
The High Court declined to call for a reference and dis-
missed the application for reference. Hence the appeals by
the Department.
Dismissing the appeals, this Court,
HELD: "Blending" or "partition" will not be a ’disposi-
tion’ within the ordinary connotation of the expression but
will be one if either of the Explanations to Section 2(15)
are attracted. [179 G]
Unlike an unequal partition, the act of blending will
not amount to a ’disposition’ attracting Ss. 9 and 27 of the
Act. [179 H - 180 A]
The High Court was right in holding that the acts of
blending did not result in the ’gift’ of immovable proper-
ties within the meaning of the statute. [180 C]
Though a declaration of blending does not amount to a
’gift’ where the act of blending is followed up by a subse-
quent partition, the two transactions taken together do
result in the extinguishment, at the expense of the de-
ceased, of his rights in the properties which go to the
share of other coparceners at the subsequent partition and,
if the two can be treated as parts of the same transaction
the Explanation to Section 2 (15) may be attracted. [180 D-
E]
169
Rajamani Ammal v. Controller of Estate Duty, (1972) 84
ITR 790; Controller of Estate Duty v. Smt. Mookammal, (1978)
110 ITR 581; Rangabayaki Ammal v. CED, (1973) 88 ITR 96; CED
v. Kantilal Trikamlal, (1978) 105 ITR 92; Stremann v. CIT,
(1965) 66 ITR 62 SC; Goli Eswariah v. CGT, (1970) 76 ITR
675; C.G.T.v. Getti Chettiar, (1971) 82 ITR 599; Cherukuru
Eswaramma v.C.E.D, (1968) 69 ITR 109; CED v. Jai Gopal
Mehta, (1972) 85 ITR 175FB; C.E.D., v. Laxmi Bai, (1980) 126
ITR 73; C.E.D.v. Babubhai T. Panchal, (1982) 133 ITR 455;
and C.E.D.v. Satyanaravan Babulal Chaurasia, (1983) 140 ITR
158, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1204 (NT)
of 1979.
From the Judgment and Order dated 3.2.1978 of the Madras
High Court in Tax Case Petition No. 271 of 1977.
WITH
Civil Appeal No. 4371 (NIT) of 1991.
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Ms. A. Subhashini for the Appellant.
Ms. Janaki Ramchandran and A.T.M. Sampath for
the Respondents.
The Judgment of the Court was delivered by
RANGANATHAN, J. Both these matters raise the same ques-
tion viz. whether the act of a member of a joint family by
which he impresses his individual property with the charac-
ter of joint family property or "throws" it into the hotch
potch of the joint family or "blends" it with the joint
family property is a "disposition" within the meaning of the
Estate Duty Act, 1953 (’the Act’, for short).
Civil Appeal no. 1204/79 is an appeal from an order of
the High Court declining to call upon the Income-tax Appel-
late Tribunal to refer the above question for the decision
of the High Court in view of certain earlier decisions of
the Court. The Madras High Court also declined to direct a
reference on the above issue in T.C.P. No. 478 of 1977 and
that is the subject matter of SLP (C) No. 335 of 1979. In
view of the pendency of Civil Appeal No. 1204/79, we grant
special leave in SLP (C) No. 335/79 also.
Before discussing the correctness of the above conclu-
sion, it may be convenient to set out the background of
facts in Civil Appeal No. 1204/79.
170
That appeal arises out of the estate duty assessment conse-
quent on the death of one Natesan Chetty, who died on
1.3.72. He was the Karta of a Hindu Undivided Family (HUF)
consisting of himself and his four sons. He was also the
owner, in his individual capacity, of five house properties
in Madras. On 18.6.1970 and 16.9.1970 he made declarations
by which he impressed the above mentioned properties with
the character of joint family properties and declared that
they would thereafter belong to HUF of which he was the
karta. Subsequently, a partition was effected in the family
in March 1971 in which two of the above mentioned properties
came to the share of the deceased. Sri Natesan Chetty had
also borrowed a sum of Rs. 46,800 from the HUF out of the
rental income from the above mentioned properties for being
invested in the business earned on by him. These borrowings
were made between March 1970 and April 1971 and they were
repaid in April 1971.
In completing the assessment to estate duty of the
estate passing on the death of Natesan Chetty, the Assistant
Controller of Estate Duty held that the declarations made by
the deceased on 18.6.1970 and 16.9.1970 were "dispositions"
within the meaning of the said expression as defined in the
second explanation to section 2(15) of the Act. These dispo-
sitions having been made for no consideration within the
meaning of s. 27 (1), amounted, according to him, to gifts
and since the gift had been made within two years of the
date of death, the subject matter of the gift was liable to
be assessed as pan of the estate passing on death under
section 9 of the Act.
As already mentioned, two of the properties had been
allotted to the share of the deceased in the partition of
1971 and it is common ground that they passed on the death
of the deceased as they belonged to him on the date of his
death. The question, however, was whether the other three
properties which went to the other members of the family as
a result of the declarations and partition were also liable
to be included as pan of the estate deemed to pass on the
death of the deceased by the application of section 9 read
with S.27 (1) and section 2(15) of the Act. The Assistant
Controller answered this question in the affirmative and
included their value, taken at Rs. 1,22,500, in the princi-
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pal value of the estate. As a consequence of his conclusion
that the properties were liable to be included in the es-
tate, the officer ,,I so took the view that the sum of Rs.
46,800 being the loan taken by the deceased from the HUF and
discharged within two years prior to the death should be
added hack in computing the principal value of the estate by
reason of the provisions of section 46 (2) of the Act. It is
not in dispute before us that though two points were thus
involved in the assessment--one regarding the inclusion of
the value of
171
three items of property as part of the estate of the de-
ceased passing on his death and the other regarding the
addition or disallowance of the debt of Rs. 46,800 -- they
are inter-connected and that, if the first question is
answered in favour of the assessees, the second question
will also stand answered likewise.
Dissatisfied with the conclusion of the Assistant Con-
troller, the accountable person preferred an appeal to the
Appellate Controller of Estate Duty which was successful.
Thereupon the Department preferred an appeal to the Tribunal
which, following a decision of the Madras High Court in
Rajamani Ammal v. Controller of Estate Duty. (1972) 84
I.T.R. 790 held that the sum of Rs. 1,22,500 could not be
included in the value of the estate passing on the death
and, consequentially, that the add back of Rs. 46,800 was
also not justified. Thereupon the Controller of Estate Duty
applied, under S. 64 (1) of the Act, for a reference to the
Madras High Court, for its decision, of the following two
questions:
"1 Whether, on the facts and in the
circumstances of the case, the Appellate
Tribunal was right in holding that the trans-
action by which a Hindu impressed his separate
properties [as] with joint family character
could not be considered as a disposition under
the second explanation to section 2(15) and
section 27 of the Estate Duty Act ?
2. Whether, on the facts and in the
circumstances of the case, the Tribunal was
right in holding that the addition of Rs.
1,22,500 made under section 9 and Rs. 46,800
made under section 46(2) could not be sus-
tained in the case of the deceased ?"
The Madras High Court was of the opinion that the basic
question at issue was covered by the earlier decisions of
the Court in Rajamani Ammal v. Controller of Estate Duty,
(1972) 84 ITR 790 as well as a subsequent decision in Con-
troller of Estate Duty v. Smt. Mookammal, (1978) 110 ITR
581. The Court found no substance in the attempt, on behalf
of the Revenue, to distinguish the above decisions on the
strength of a decision of the Court in Ranganayaki Ammal v.
CED, (1973) 88 I.T.R 96 which had been confirmed by the
Supreme Court in CED v. Kantilal Trikamlal, (1978) 105
I.T.R. 92. In this view of the matter the High Court de-
clined to call for a reference on the two questions above
mentioned and dismissed the application for reference. Hence
the present Civil Appeal. It is not necessary to set out the
facts in SLP No. 335 of 1979 where the question involved is
the same except that there was no subsequent partition after
the blending and that no question regarding the deductibili-
ty of debts also arose in this case.
172
It will be seen that both these appeals are directed
against the orders of the High Court declining to call for a
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reference. It is fairly clear that the questions whether
Rajamani Ammal was rightly decided and whether, if so, it
needed reconsideration in the light of Kantilal Trikamlal
are questions of law. But, in view of the long lapse of
time, we have considered the issues on merits and since we
are satisfied that the High Court’s conclusion was correct,
we dispose of the appeals straightaway without going through
the formality of asking the Tribunal to make a reference to
the High Court and then awaiting the High Court’s decision
on the question of law referred.
The Estate Duty Act 1953 has ceased to be enforceable
since 16.3.1985. In the circumstances we need not elaborate-
ly set out the provisions of the Act and the principles
behind them. An outline of the provisions necessary for the
determination of the issue before us will suffice. The Act
levies a duty on the aggregate market value of the proper-
ties passing on the death of any person (statutorily termed
the ’principle value of the estate’). It is manifest that
the statute could be easily circumvented if duty-were re-
stricted only to properties which actually pass on a death,
for, various of devices could be thought of by which the
property of such person could ostensibly be transferred to
others sometime before the death, although it continues to
be really under the domain and control of the deceased till
the time of his death. The statute therefore contains elabo-
rate provisions deeming certain properties to pass on death
even though their beneficial enjoyment may not actually
change hands at the time of his death. One such item of
properties which are deemed to pass on the death of a person
are those which formed the subject matter of a gift made by
him within a specified period preceding his death. S.9 of
the Act, which contains this deeming provision reads thus:
"9.Gifts within a certain period before
death--(1) 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 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".
In short, the provision enabled the Revenue to ignore any
gift of property made by the deceased within two years of
his death by creating a statutory fiction that properties so
gifted passed on the death of the deceased,
173
although, in fact and in law, they ceased to be his a short
time before his death. This is the first fiction.
The legislature next proceeded to enact a second fic-
tion. This was in order to bring into the net of taxation
transactions which may not be comprehended within the legal
concept of a gift because they are ostensibly made for some
consideration. It provided in section 27 that:
"27. (1) Dispositions in favour of
relatives--Any disposition made by the de-
ceased in favour of a relative of his shall be
treated for the purposes of this Act as a gift
unless---
(a) the disposition was made on the part of
the deceased for full consideration in money
or money’s worth paid to him for his own use
or benefit; or
(b) .......... ; and references to a gift in
this Act shall be construed
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accordingly: .......... "
Resort to this provision in the present case is needed for a
purpose. Admittedly, the deceased received no consideration
for impressing the property with the character of joint
family property. If this amounted to a transfer, then S.9
alone would be sufficient to bring the properties within the
net of taxation. But it could be argued that a gift involves
a ’transfer’ without consideration but the act of blending
does not constitute a ’transfer’ [vide: Stremann v. CI.T.,
(1965) 56 I.T.R. 62 (S.C.) and a host of other cases under
the Income-tax Act]. Section 27 helps the Department in the
present case only in that it uses a much wider word, ’dispo-
sition’, and treats dispositions in favour of relatives as
gifts.
The statute had to make provision for a third fiction as
well as it could still be contended that the word ’disposi-
tion’ would not be sufficient to comprehend certain types of
transactions. To be on the safe side, therefore, the statute
proceeded to enact a special definition of the word ’dispo-
sition’ in section 2(15) of the Act wide enough to rope in
various kinds of acts in respect of property. This provi-
sion, insofar as it is material for our present purposes,
reads as follows:
"2(15) ’Property’ includes any interest in
property, movable or immovable, the proceeds
of sale thereof and any money or investment
for the time being representing the proceeds
of sale and also includes any property con-
verted from one species into another by any
method;
Explanation I--The creation by a person or
with his consent
174
of a debt or other right enforceable
against him personally or against property
which he was or might become competent to
dispose of, or to charge burden for his own
benefit, shall be deemed to have been a
disposition made by that person, and in rela-
tion to such a disposition expression ’proper-
ty’ shall include the debt or right created.
Explanation 2--The extinguishment at the
expense of the deceased of a debt or other
right shall be deemed to have been a disposi-
tion made by the deceased in favour of the
person for whose benefit the debt or right was
extinguished, and in relation to such a dispo-
sition the expression ’property’ shall include
the benefit conferred by the extinguishment of
the debt or right;
The short case of the department now is this; the de-
ceased in these cases was the full and exclusive owner of
the immovable properties in question. By the act of blending
he has convened them into HUF propertieS. The properties no
longer belong to him as an individual; they belong to the
family thereafter with certain rights qua them in the other
members of the HUF. In other words, there ’has been an
extinguishment, at the expense of the deceased, of a part,
at least, of his rights in the properties with a correspond-
ing benefit to the others. There has also been the creation,
by the deceased, of a right in the others enforceable
against the deceased and the properties e.g. the right to
demand a partition. The deceased, therefore, has made a
disposition in favour of his relatives for
no consideration within two years of his death. The
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value of the properties, in respect of which he made the
disposition in favour of the family, are, therefore, liable
to be included in the principal value of the estate passing
on his death under section 9 read with section 27 read with
the Explanations to section 2(15). This is quite apart from
the fact that the value of the two properties, which subse-
quently fell to the share of the deceased at the partition
in March 1971, are liable to be included as his own property
actually passing on his death. The question that we have to
consider is, therefore, whether the legal incidence of the
act of blending an be brought within the four corners of the
two Explanations to section (15) of the Act.
It was precisely this question which had been considered by
the
Madras High Court earlier in Rajamani Ammal v. Controller of
Estate Duty (1972) 84 I.T.R. 790. in deciding the issue, The
High Court had the benefit of two earlier decisions of this
Court in Goli Eswariah v. C G.T., (1970) 76 I.T.R. 675 and
CG.T, v. Getti Chettiar., (1971) 82 I.T.R. 5991,
175
where this Court had held, in the context of the Gift Tax
Act, that the act of blending and the act of a coparcener
receiving, on partition of a HUF, less than the share he was
entitled to receive would not constitute gifts. The details
of this decision need to be set out at some length.
Three contentions had been urged in Rajamani: (a) The
first was that the act of blending constituted a ’disposi-
tion’ within the general meaning of that word. Repelling
this contention, the Court observed:
"The learned counsel for the revenue placed
strong reliance on the word "disposition" in
section 27 (1) of the Act and contended that
even an act of throwing of the self-acquired
property into the common stock of a joint
Hindu family is included in that expression.
In a case arising under the Gift-tax Act, the
word "disposition" came up for consideration
in the decision in Goli Eswariah v. Commis-
sioner of Gift-tax, (1970) 70 I.T.R 675
(S.C.). The Supreme Court held that the word
"disposition" refers to a bilateral or a
multilateral act and it does not refer to a
unilateral act. This decision of the Supreme
Court approves the decision of this court in
Commissioner of Gift-tax v.P. RangasamiNaidu,
(1970) 76 I.T.R. 315 (Mad) (F.B). It is true
that these decisions are under the Gift-tax
Act. It is also true that the word "disposi-
tion" was considered in these decisions, with
particular reference to the definition of
"transfer of property" under that Act. We are
of the view that the word "disposition" in
section 27(1) of the Estate Duty Act also
refers to a bilateral or multilateral act. The
section refers to a disposition by the de-
ceased in favour of a relative and also speaks
of partial failure of consideration. Section 9
also refers to property "taken under a dispo-
sition". Therefore, in our opinion the word
"disposition" in section 27(1), however wide
its ambit may be, would not include the uni-
lateral act of a person by which he throws his
self-acquired property into the common stock
of the joint family."
(b) It had been next contended, on behalf of the Revenue
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that, by throwing the self-acquired properties into the
common stock of the joint family, the deceased had created a
right enforceable against him in favour of the sons or the
other coparceners viz. the right to demand partition of the
properties in question which they could not have exercised
earlier. This contention was rejected by the learned judges
by applying the principle enunciated in an earlier Full
Bench decision of the Court in CIT v. Rangasami Naidu,
(1970) 76 I.T.R. 675, where a similar contention had been
repelled in the context of the Gift Tax Act. The Court had
there observed:
176
"With the father having absolute power of
disposition inter vivos or testamentary in
respect of his self-acquisition and with no
power in the son to interdict any alienation
or disposition or call for partition, the
son’s interest is next to nothing. But the
right is real. It lies dormant. It is this
dormant right which the undivided sons have in
their father’s property that entitles them to
take the self-acquired property of the father
as coparceners to the exclusion of a divided
son. Juridically, it must be this dormant
birth-right that enables the father at his
pleasure, without formalities, to deny to
himself his independent power or predominant
interest and look upon the property as the
property of the family.
In our view, it is this birth-right imperfect
and subordinate to the special power and
predominant interest of the father that comes
into play and makes the interest of the son
real and an interest in praesenti, when the
father chooses to waive his rights. At his
pleasure and without reference to his son, if
the father abandons or determines once for all
not to exercise his independent power over the
property, the son’s interest therein becomes a
real and full-fledged coparcenary right. There
is no vesting of rights here by the father on
the son, but what is dormant springs to life
but irrevocably at the pleasue of the father."
(c) A third contention raised on behalf of the Revenue
was that throwing the self-acquired property into the common
stock of the joint family would amount to "extinguishment at
the expense of the deceased of a debt or other right" within
the meaning of Explanation 2 to section 2 (15). This conten-
tion was also repelled by the learned Judges. They observe:
"We are also of the opinion that throwing the
self-acquired property into the common stock
of the joint family will not amount to "extin-
guishment at the expense of the deceased of a
debt or other right" within the meaning of
Explanation 2 to section 2 (15). As seen from
the judgments cited above, after the act of
throwing into the common stock, it is the
joint family or the coparcenary that owns the
property. The person who converted his indi-
vidual property into joint family property is
a member of the Hindu joint family or the
coparcenary and contines to be a member of the
joint family. His interest in
177
the erstwhile separate property would
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extend to the whole of the property even as of
the other coparceners, for the interest of
every coparceners extends over the whole of
the joint family property. There is community
of interest and unity of possession between
all the coparceners. On the death of any one
of the coparceners the others take the proper-
ty by survivorship.It may be, the ultimate
survivor is the person who threw the self-
acquired property into the common stock. It,
therefore,
follows that there was no extinguishment
of the right of the deceased and creation of a
right in favour of another, in these of throw-
ing the self-acquired properties into the
common stock. The decision in Valliammal
Achi v. Controller of Estate Duty, (1969) 73
I.T.R. 806 (Mad) relied on by the learned
counsel for the revenue, and the decision in
Kantilal Trikamlalv. Controller of Estate
Duty, (1969) 74 I.T.R. 353 (Guj.), relied on
by the learned counsel for the accountable
person,related to what we may term as "unequal
partitions". They do not deal with cases of
throwing the self-acquired properties into the
common stock. We are not concerned with the
case as to whether an unequal partition would
amount to an extinguishment of a right and
creation of a benefit within the meaning- of
Explanation 2 to section 2(15), which was the
point that was considered in those cases."
The above decision is clearly against the
Revenue. The Revenue, however, strongly relies
upon a later decision of the same High Court
in Ranganayaki Ammal & Ors. v. Controller of
Estate Duty, (1972) 88 I.T.R. 96. It is sub-
mitted that Ranganayaki Ammal has been af-
firmed by this Court in CED v. Kantilal Tri-
kamlal, (1976) 105 ITR 92 - a common judgment
reversing Kantilal Trikamlal v. CE.D., (1969)
74 I.T.R. 353 (Guj) and affirming Ranganayaki
Ammal (Mad) - and, therefore, Rajmani is no
longer good law. It is therefore, necessary to
refer to these cases though the question
involved there was somewhat different.
In Ranganayaki Ammal, the deceased Bheema
Naidu and his widow and children constituted a
Hindu undivided family. A little within the
period of two years prior to the death of the
deceased, a partition was effected of the
joint family properties and in that partition
he took a smaller share instead of his legal
half benefiting the other to the extent of the
difference. The same thing had happened in the
case of Kantilal Trikamlal also. Trikamlal
Vadilal and his son Kantilal constituted a
Hindu undivided family. On 16th November,
1953, and instrument styled a "release deed"
was executed between the two persons. Under
this instrument, a sum of rupees one lakh out
of the joint family properties was taken by
178
the deceased m lieu of his share in the joint
family properties and he relinquished his
interest in the remaining properties of the
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joint family which were declared to belong to
Kantilal as his sole and absolute properties
and Kantilal also relinquished his interest in
the amount of rupees one lakh given to the
deceased and declared that the deceased was
the sole and absolute owner of the said
amount. Trikamlal Vadilal died on 3rd June,
1955, that is within two years of the release
deed. The Assistant Controller found that, as
on November 16, 1953, the deceased was enti-
tled to a one-half share in the joint family
properties, the value of which was Rs.
3,44,058, but had relinquished his interest in
the joint family properties by receiving only
a sum of rupees one lakh. The officer, there-
fore, held that the difference between
Rs.3,44,058 and Rs, 1,06,724 (being the amount
received by the deceased together with inter-
est) was includible in the principal value of
the estate of the deceased, being the value of
a disposition by the deceased in favour of a
relative for partial consideration. This
assessment was upheld eventually by the Su-
preme Court. Both these decisions, thus,
raised the question whether there was "gift"
within the meaning of S.9 read with S.27 read
with the Explanations to S.2(15) of the Estate
Duty Act where a coparcener in a HUF, at the
family parti-tion, voluntarily agrees to
accept properties of a value less than what
he is entitled to claim, as a matter of right,
at such partition. This Court--as did the
Madras High Court in Ranganayaki Ammal, the
Andhra Pradesh decision in Cherukuru Eswaramma
v. C.ED., (1968) 69 I.T.R. 109 and the Punjab
& Haryana High Court judgment in C.E.D.v. Jai
Gopal Mehra, (1972) 85 I.T.R. 175 (F.B.) -
answered the question in the affirmative. This
Court distinguished Go[i Eswariah, (1970) 76
I.TR. 675, S.C. and Getti Chettiar, (1971) 82
I.T.R. 599, S.C. on the ground that the defi-
nition of ’disposition’ in Explanation 2 Sec-
tion 2(15) of the Estate Duty Act is much
wider than the scope of that expression used
in the Gift Tax Act.We do not consider it
necessary to set out here the full and de-
tailed reasoning of this Court in Kantilal
Trikamlal’s case.
Before proceeding further, we may refer to
a few later decisions of High Court relevant
to the issue before ns. The Allahabad High
Court, in C.E.D.v. Laxmi Bai, (1980) 1.26,
I.T.R. 73, a decision rendered after Kantilal
Trikamlal, thought that the act of blending
would not be a ’disposition’ within fie mean-
ing of:the Estate Duty Act. In C.E.D v. Babub-
hai T. Panchal, (1982) 133 I.T.R.455, the
Gujarat High Court had occasion to consider
the question whether a transaction of release
by a member of a Hindu Undivided family,
within a period of two years of his death, of
his interest in the family properties would
amount to a ’disposition’ within the’ meaning
of Explanation 2 to Section 2(15) of the
Estate Duty Act. The
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question was answered in the negative. In CE.D
v. Satyanarayan Babulal Chaurasia, (1983) 140
I.T.R. 158, the Bombay High Court, without
touching the issue in detail, merely held,
applying Goli Eswarian v. C G.T., (1970)76
I.T.R. 675 S.C, that the act of blending does
not involve a transfer.
The question that falls for our considera-
tion now is whether, despite the extended
definition in S.2(15) of the Act, as explained
in Kantilal Trikamlal, the act of blending,
unlike the voluntary acceptance of an unequal
partition, fails outside the purview of the
deeming part of the definition contained in
the explanations. We think the answer to this
question has to be in the affirmative, Revert-
ing once again to the contentions of the
Revenue in Rajamani (which are also the con-
tentions reiterated before us for the
Revenue), it will be remembered that Rajamani
specifically dealt with the language of the
two explanations 10 S.2(15) and that its
decision rested on three grounds:
(i) a ’disposition’, as held on Goli
Eswariah, (1970) 76 I.T.R. 675 S.C., has to be
a ’bilateral’ or ’multilateral’ act or trans-
action, not a unilateral act;
(ii) the act of blending does not
create any right enforceable against the
blender or his property but only brings to the
surface rights already latent and inherent in
the others; and
(iii) the act of blending does not
result in the extinguishment of any right of
the blender with a correlative conferral of
benefit on others.
our view. Kantilal Trikamlal does not
affect the validity of any of the three
grounds set out above. So far as the first
ground is concerned, it does not touch upon
the reasoning of Goli Eswariah, not to say
doubt or dissent from it. It refers to C.E.D.
v. Kancherla Kesava Rao, (1973) 89 I.T.R. 261,
S.C.---hinting at possible distinction--and to
Getti Chettiar (but without any hint of dis-
sent) and points out that the conventional
construction of disposition’ has to submit to
the larger sweep of hypothetical extension by
definition" and that, unlike under the Gift
Tax Act, "there is no limitation, environmen-
tal or by the society of words, warranting the
whittling down of the unusually wide range of
Explanation 2 to S.2 (15)". In other words,
the cumulative effect of Goli Eswariah, Getti
Chettiar and Kantilal Trikamlal is that
’blending’ or ’partition’ will not be a
’disposition’ within the ordinary connotation
of the expression but will be one if either of
the Explanations to S.2(15) are attracted.
This takes us to the other two contentions
dealt with in Rajamani as to the scope of the
two explanations. On this aspect, Rajamani has
held that, unlike an
180
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equal partition, the act of blending will not
amount to a ’disposition’ attracting Ss.9 and
27 of the Act. It distinguishes cases of
unequal partition dealt’with in Valliammal
Achi, v.C.E.D., (1969) 73 I.T.R, 806 (Mad) and
the High Court’s decision in Kantilal Trikam-
lal (1969) 74 I.T.R. 353 (Guj.) cited before
it which have now received the imprimatur of
this Court in Kantilal Trikamlal. We are
inclined to think that the distinction has
been made on sound lines. We do not consider
it necessary to repeat or elaborate the rea-
soning in Rajamani on these two points as it
succinctly epitomises well-settled principles
of Hindu Law. Suffice it to say that we en-
dorse this reasoning and think that the High
Court was right in holding, in the present
cases, that the acts of blending did not
result in the ’gift’ of immovable properties
within the meaning of the statute and that
Rajamani required no reconsideration because
of Ranganayaki Ammal/Trikamlal.
This disposes of the question sought to be
referred in these cases. We should however
like to advert to another aspect which may
arise for consideration at some future date.
It may, perhaps, be possible to contend that,
though a declaration of blending does not
amount to a ’gift’, where the act of blending
is followed up by a subsequent partition, the
two transactions taken together do result in
the extinguishment, at the expense of the
deceased, of his rights in the properties
which go to the share of other coparceners at
the subsequent partition and that, if the two
can be treated as parts of the same transac-
tion, Explanation 2 to S.2(15) may be attract-
ed. But this, apart from being a totally new
question of law not raised at any stage and
not debated before us, would also require not
only a closer look from the legal angle but
also investigation into facts, particularly as
to whether the act of blending and the subse-
quent partition can be treated, in law and on
facts, as parts of a single transaction. We,
therefore, express no opinion on this issue.
For the reasons discussed above, these
appeals fail and are dismissed. But we make no
order regarding costs.
Y.L.
Appeals dismissed.
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