Income Tax Appellate Tribunal - Madras
Assistant Controller Of Estate Duty vs Estate Of Late A. Ramanarayan Patro on 23 March, 1988
Equivalent citations: [1988]27ITD338(MAD)
ORDER
K.A. Thanikkachalam, Accountant Member
1. This estate duty appeal filed by the department is directed against the order of the Appellate Controller of Estate Duty passed in E.D.A. No. 52/56-87/ MDS, dated 18-12-1986. According to the facts appearing in this case the deceased Sri Ramanarayan Patro died on 17-12-1980. An estate duty account was filed on 22-1-1985 declaring a net estate of Rs. 4,55,374. The principal value was determined at Rs. 22,56,972 in the order under Section 58(3) dated 27-6-1986 of the Assistant Controller of Estate Duty (2) Madras. The only point that arises in this appeal before us relates to the passing of the property on the death of Sri Ramanarayan Patro situated at No. 38, Whites Road, Madras known as "Kesava Bagh".
2. The deceased was the son of late Vasudeva Patro who was the Commissioner of Police, Madras for some time. Sri Vasudeva Patro died on 5-1-1952. Sri Vasudeva Patro executed a Will on 23-7-1951 whereby he bequeathed the properties he inherited from his father to his son Sri Ramanarayan Patro. These properties are (i) Kesava Bagh, Whites Road, Madras-14, and (ii) House at Jarijangi Village, Narasannapetta Taluk, Srikakulam District and certain stocks and shares. Smt. Shyamala Devi, wife of late Sri Vasudeva Patro was appointed as the executrix of the Will. The deceased was a minor at that time. Up to and inclusive of the assessment year 1972-73 the income from the property 'Kesava Bagh' had been assessed in the hands of the deceased. For the first time during the proceedings for the assessment year 1973-74 a claim was advanced that the property was belonging to him and his mother in equal proportion and they should be treated as co-owners. This claim was accepted and confirmed by the AAC in his order in ITA No. 7/76-77, dated 15-2-1978. On appeal, the Tribunal set aside the order of the AAC vide its order in IT Appeal No. 279/Mds/78-79, dated 12-3-1979 and restored the matter to the AAC to examine whether the claim that the property Kesava Bagh should be treated as co-ownership property with the assessee and his mother having equal shares.
3. The AAC in his order held that Smt. Shyamala Devi the widow of the late Vasudeva Patro had a limited half share in the property 'Kesava Bagh' by virtue of the provisions of the Hindu Women's Right to Property Act, 1937. According to the AAC, she got half undivided interest and this has become her full ownership in accordance with Section 14(1) of the Hindu Succession Act, 1956. It was further held that the half share belonging to Sri Ramanarayan Patro was held by him in his status as HUP as he was married during the periods relevant to the assessment years 1973-74 to 1977-78. Sri Ramanarayan Patro obtained a decree for divorce from his wife by an order of t he Bombay High Court in July 1977. Accordingly he held the property thereafter from the assessment year 1978-79 onwards was his in his individual status.
4. Before the Assistant Controller of Estate Duty it was submitted that the executrix did not obtain any probate for the said Will. In the absence of the said Will it was submitted that Sri Vasudeva Patro should be deemed to have died intestate in 1952. Since the properties were inherited from his grandfather it was stated that the properties were HUF properties and since Vasudeva Patro died in 1952 his wife Smt. Shyamala Devi acquired a limited interest and that interest got enlarged and became absolute interest after coming into forca of the Hindu Succession Act, 1956. By the time the appellate order was passed, Sri Ramanarayan Patro had already passed away. His mother Smt. Shyamala Devi had also passed away and the present accountable persons would seem to have conducted the further proceedings and obtained the final decision from the AAC. On the strength of these facts, the accountable persons offered only 50% of the market value of the property 'Kesava Bagh' for estate duty purpose. It was submitted before the Assistant Controller, that the finding given by the Appellate Controller, following the decision of the Supreme Court |n Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Base AIR 1962 SC 1471, must be accepted in an estate duty assessment also and only 50 % of the property 'Kesava Bagh' must be brought to tax and nothing more.
5. However, the Assistant Controller of Estate Duty was unable to agree with this line of argument. He was of the following view:
It is essential to consider the validity of the Will before the other contentions of the accountable person are considered. It must be stated at once that the Supreme Court did not nullify by its decision quoted above the provisions in the Indian Succession Act. The very purpose of the Act as would be seen from the preamble was to consolidate the law applicable to intestate and testamentary succession. The said Supreme Court judgment did not render the Succession Act ineffective in cases of testamentary succession on the sole ground that the Will was not probated. As for the decision quoted by the Advocate in this regard it must be stated that it has not been properly cited before the authority. The accountable person has not placed before me the full copy of the judgment of the Supreme Court to enable me to appreciate the contentions now raised by them. In the Supreme Court's decision cited, the point at issue was different.
Thereupon considering Sections 187, 188, 192 and 213 of the Indian Succession Act, the Assistant Controller came to the conclusion that the claim made by the accountable persons is based on false presumptions in order to avoid the element of estate duty on the property passing on the death of late Ramanarayan Patro. Ultimately, he held that according to the Will all the movable properties were allotted to Mrs. Shyamala Devi Patro and in view of that the son Ramanarayan Patro was allotted the entire house property. Accordingly, he held that the entire value of the property 'Kesava Bagh' passed on the death of the deceased and no part of it was attributable to anybody else. Consequently, the entire value of the property was brought to duty.
6. As against this order, the accountable person filed appeal before the Appellate Controller of Estate Duty. Before the Appellate Controller it was pointed out that the order of the AAC had been accepted by the department and thus the nature and extent of the share which the deceased had in Kesava Bagh was no more open to question in the estate duty proceedings. It was further pointed out that in view of the Will not being probated, the law of inheritance came into operation by which process, Smt. Shyamala Devi had life interest in the property 'Kesava Bagh' by virtue of Hindu Women's Right to Property Act, 1937 which right was enlarged after passing the Hindu Succession Act, 1956, Therefore, according to the accountable person on Sri Ramanarayan Patro's death only half share passed on and became dutiable. The Appellate Controller accepted this line of argument advanced by the accountable persons. According to him, in view of the decision of the AAC referred to above, wherein it was held that Smt. Shyamala Devi, the mother of the deceased had the absolute full ownership in 50 % of the property 'Kesava Bagh' and the balance was the individual property of the deceased and, therefore, the Appellate Controller directed the Assistant Controller to include in the dutiable estate only 50%, i.e., half of the value of the property 'Kesava Bagh'.
7. As against this order, the Department is in appeal before us.
8. According to the learned Departmental Representative, the Appellate Controller erred in holding that the property situated at 38, Whites Road, Madras-14 known as 'Kesava Bagh' belonged to the deceased and his mother in equal proportion. It was submitted that the Appellate Controller erred in holding that the issue was concluded by the decision of the AAC in IT Appeal No. 1286/80-81, dated 8-7-1984 in favour of the deceased and the Assistant Controller had no jurisdiction or power or competency to reconsider the issue. According to the learned Departmental Representative, the AAC ought to be have held that the proceedings in income-tax and estate duty are different and the Assistant Controller has got powers to re-consider the issues and take a different stand from that already concluded in other tax proceedings having regard to the ratio of the decision of the Delhi High Court in the case of Jag Mohan v. CED [1972] 85 ITR 1. Another submission made by the learned Departmental Representative is that the Appellate Controller erred in not giving due credence to the fact that Sri Ramanarayan Patro enjoyed the income of the property for two decades and the question regarding co-ownership of the property was raised only in 1973-74. He further pointed out that the Appellate Controller erred in coming to the abovesaid conclusion solely on AAC's finding without going into the merits of the case himself afresh. The Departmental Representative further submitted that the Appellate Controller failed to appreciate that Smt. Shyamala Devi, mother of the deceased did not make any claim for half share in the said property before any court of law. According to the learned Departmental Representative, the deceased obtained the property absolutely by the Will left by his father and the Will was a valid one. He further argued that it is not correct to state that the deceased's mother had limited interest in the said property till 1956 and she became the full owner consequent to the passing of Hindu Succession Act, 1956. Another line of argument advanced by him was that the deceased's mother was also provided funds, etc., by the deceased's father under the Will and the provisions of the Hildu Women's Bights to Property Act and the Hindu Succession Act would apply only in cases of intestate succession, and not where the property was bequeathed under a Will. According to the learned Departmental Representative, the A AC crred in relying on the Gujarat High Court decision in the case of Sarabhai Tribhovandas v. CED [1981] 130 ITR 326 since the same would not apply to the facts of the case. According to the facts appearing in the Gujarat High Court case, it was a case of inheriting husband's share in the joint family property whereas in the present case it is a case of separate property for which the deceased left a Will providing for all his legal heirs. It was therefore submitted that the Appellate Controller ought to have upheld the action of the Assistant Controller in including the full value of the property under reference in the principal value of the estate.
9. At the time of hearing before us the learned Departmental Representative also advanced a new line of argument. According to him even if the Will is not operative since it was not probated and even if it is stated that late Sri Vasudeva Patro could not have bequeathed 'Kesava Bagh' since he inherited the same from his grandfather and even assuming that the property 'Kesava Bagh' devolved by way of inheritance on Smt. Shyamala Devi and her son, Sri Ramanarayan Patro, by her conduct Smt. Shyamala Devi never acted as the owner of half share of the property. Since she has not exercised her right as the owner of the half of the property and always acting as the executrix and guardian of her minor son, her conduct would amount to self-effacing her right in the property in favour of the nearest reversioner Sri Ramanarayan Patro.
10. In order to establish her conduct on the question of self-effacement, the learned Dapartmental Representative pointed out two circumstances, viz. (z) in the Will executed by her husband, she was appointed as the executrix and she was always acting as an executrix in all the subsequent proceedings and also as a guardian to the minor and she never asserted her right as the owner of half of the property, and (ii) in the returns filed for the assessment year 1952-53 and onwards she claimed the status of HUF. Thus in the assessment years 1953-54, 1954-55 and 1955-56 she claimed her status as that of HUF. In the assessment year 1956-57 she was shown as the guardian of her son, wherein the status was taken as an 'individual'. Thus, according to the learned Departmental Representative from the years 1952 to 1956 she acted as a guardian and not as the sharer of the property. He pointed out that up to the assessment year 1958-59 the status was claimed to be that of HUF of mother, son and three unmarried daughters. According to the learned Departmental Representative thus her consistent conduct would go to show that she does not want to claim her right as a sharer in the property. In such an event, it is Ramanarayan Patro who is the full owner of the entire property known as 'Kesava Bagh' which passed on his death in entirety to his legal heirs.
11. On the other hand, the learned counsel appearing for the accountable persons while supporting the order passed by the Appellate Controller contended that the order passed by the AAC in the income-tax proceedings, cited supra, is binding on the Assistant Controller of Estate Duty. He further argued that since the Will is not probated on the death of Sri Vasudeva Patro his wife had a limited estate in Kesava Bagh and his son was having half share in the property. After coming into force of the Hindu Succession Act, 1956 her limited estate enlarged into an absolute estate. Thereafter, according to the learned counsel, she was always conscious of the right in the property. All the returns filed by her would go to show that she treated this property as HUF property consisting of herself, her son and her daughters. She never treated this property as absolutely belonging to her son. He also pointed out that she along with her son created several mortgages on the security of the property in question. She also advanced certain amounts by way of loan to her son. The learned counsel further pointed out that she was always having possession of the property in question. The property was let out jointly by the mother and son from the beginning. According to the learned counsel, the letter written by tenant dated 3-2-1956 would show that she was exercising her right as the full owner of half of the property in question. According to him, she was enjoying her half share in the rent. Lastly it was pointed out that even when the property was sold ultimately in the sale deed it was narrated how this property was devolved upon the mother and son. Accordingly, it was stated that she never self-effaced her right in the property as alleged. Therefore, according to the learned counsel, the department had no concrete evidence to support its version that Smt. Shyamala Devi lost her right in the property because of self-effacement of her ownership right.
12. We have heard the rival submissions made by both sides.
13. The fact remains that Sri Vasudeva Patro who was the Commissioner of Police, Madras and later became the Inspector General of Police, Andlira Pradesh, executed a Will on 23-7-1951 and registered it as document No. 4 of 1952. He died on 5-1-1952. In the Will he appointed his wife, Smt. Shyamala Devi as the executrix. By the said Will he bequeathed the property inherited from his father upon his son, Ramanarayan Patro. Such property is known as 'Kesava Bagh'. The Will was not probated by the executrix.
14. Section 213(1) of the Indian Succession Act states as under, while dealing with the unprobated will:
213. (1) No right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
What Section 213 really does, is that it lays down a rule of procedure, that rule being that a person seeking to establish his right in any court of justice as executor or legatee under a Will must have obtained the probate of the Will under certain circumstances mentioned in the section. Again the section precludes the "establishment" of a right as executor or legatee in a court of justice but does not affect the right as such for which one must indeed look elsewhere. It is thus seen that where such a right may not come up for being established in a court of law the want of a probate need not and would not affect the right of a legatee under the Will.
15. The real difficulty that arises in this case is that what is the right of the testator herein to bequeath the property known as 'Kesava Bagh' to his son absolutely. The property was stated to be inherited by Vasudeva Patro from his father and his father inherited the same from his father. In such a case the question arose whether Sri Vasudeva Patro has got any right to will away the entire joint family property absolutely in favour of his son. The law on this point is explained as under:
16. A father cannot turn joint-family property into absolute property of his son by merely making a will thus depriving sons of the son who might be born thereafter of their right in the joint-family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently. (Mulla's Hindu Law, 13th Edn., page 249, para 223). If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, their Lordships failed to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappa's father could not make the will disposing of the entire joint-family property, though he gave the residue to his son. Their Lordships' opinion was that merely because Pallaniappa's father made the will and Pallaniappa probably as a dutiful son-took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint-family property in the handa of Pallaniappa so far as his male issues are concerned. Further it is equally well settled that "under the Mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of Ms father. He does not claim through the father. ..." (Mulla's Hindu Law, 13th Edn., p. 251, para 224). It follows, therefore, that the character of the property did not change in this case because of the will of Pallaniappa's father and it would still be joint-family property in the hands of Pallaniappa so far as his male issue was concerned. Valliammai Achi v. Nagappa Chettiar AIR 1967 SC 1153 at 1155 (see Mantha Ram Murty's Law of Wills, 3rd Edn., p. 556). Therefore, it is quite clear that Sri Vasudeva Patro had no right to will away the joint family property in favour of Ms son absolutely. Thus the will executed by him on 27-3-1951 is not valid in law as far as the joint-family property "Kesava Bagh" is concerned. If that is so the law of inheritance will come into operation (i.e., of intestate succession vis-a-vis such property). After his death on 5-1-1952 Vasudeva Patro left Ms widow, Smt. Shyamala Devi and his minor son, Ramanarayan Patro as his legal heirs. According to the Hindu Women's Right to Property Act, 1937 his widow, Smt. Shyamala Devi will get widow's estate or life estate in a joint-family property left by her husband and his son will get his half share absolutely in the said property. Thereafter, Smt. Shyamala Devi and her minor son were in possession of this property by letting it out to the tenants and enjoying the rental income. Smt. Shyamala Devi was also acting as the guardian to her minor son. In the meanwhile, the Hindu Succession Act, 1956 came into force on 17-6-1956. Section 14(1) of the Hindu Succession Act states that "Any property possessed by a female Hindu, whether acquired, before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner." Thus Smt. Shyamala Devi and her minor son Ramanarayan Patro became the co-owners of the property known as 'Kesava Bagh' with equal shares. Now the contention of the department is that the widow of Sri Vasudeva Patro, viz. Smt. Shyamala Devi surrendered her right In the property by self-effacement of her right in favour of the nearest reversioner, her son and, therefore, he was the full owner of the property by excluding- his mother. The conduct of self-effacement can be established only through cogent evidence.
17. What is self-effacement is explained in the judgment of the Supreme Court in the casa of Natvarlal Punjabhai v. Dadubhai Manubhai [1954] SCR 339 and in a number of decisions of the Privy Council it has been reiterated that "the whole doctrine of surrender is based upon the analogy or legal fiction of the widow's death. The widow'sestate is an interposed limitation or obstruction which prevents or impedes the course of succession in favour of the heir of her husband. It is open to the widow by a voluntary act of her own to remove this obstruction and efface herself from the husband's estate altogether. If she does that the consequence is the same as if she died a natural death and the next heir of her husband then living step in at once under the ordinary law of inheritance." It was also pointed out by the Supreme Court in that case that "surrender: is not really an act of alienation of the widow of her rights in favour of the reversioner. The reversioner does not occupy the position of a grantee or transferee, and does not derive his title from her. It is the self-effacement by the widow that forms the basis of surrender and not the ex facie transfer by which such effacement is brought about." (See Mulla's Hindu Law, 15th Edn., page 264).
18. The following are the essential requisites of a valid surrender:
(1) It must, be in favour of the nearest reversioner, if only one, or the whole body of such reversioners, if more than one, whether male or female.
(2) The surrender must be total, not partial and a partial surrender is invalid even if it is to the nearest reversioaer and absolute as to that part.
(3) The surrender must be a bona fide surrender and not a device to divide the estate with the reversioners.
(4) A surrender effected by a widow in ignorance of her rights and without realising the true position of affairs is not valid in law.
19. A surrender by a widow of her husband's estate, if otherwise valid, is not invalidated by the circumstance that the surrender stipulates or provides for a reasonable provision being made for the maintenance of the widow.
20. Now the question is whether the Department has established all the conditions enumerated above as having been satisfied for the purpose of proving that there is valid surrender or self-effacement by the widow in favour of her minor son. In order to examine this issue, we have to ascertain the facts relating to this question.
21. The fact remains that Sri Vasudeva Patro was assessed as HUF for the assessment year 1950-51. For the asst. year 1951-52, the assessment was made on the estate of Vasudeva Patro as HUF. For the assessment year 1952-53 Mrs. Shyamala Devi was assessed as HUF. There is an assessment order for 1950-51 but there are no assessment orders for 1951-52 and 1952-53. There is only Form IT-30 because apparently returns were accepted. For the assessment year 1954-55, there is an order. Mrs. Shyamala Devi and her son were held to be members of the HUF and assessment is made in the status of HUF and there is clear mention that she derived income from property known as "Kesava Bagh". In 1955-56 again, Smt. Shyamala Devi was assessed as HUF and property income assessed in her hands. In 1956-57, the ITO held that though the assessee filed the return in the status of HUF, the property 'Kesava Bagh' belonged solely to Shri Ramanarayan Patro. According to the will of Ramanarayan's father, Smt. Shyamala Devi is only an executrix to the will of Shri Vasudeva Patro and guardian of minor Ramanarayan Patro. The assessment made in the status of individual was not contested for the assessment year 1956-57. Again for the assessment years 1957-58 and 1958-59, assessments were made in the status of HUF. From 1959-60 to 1972-73 assessments were made as individual. Returns are not available for 1959-60 to 1965-66 but from 1966-67 onwards when returns are on record, status shown by the assessee was also individual.
22. The fact also remains to be seen that Smt. Shyamala Devi was exercising her right as owner of half share in the property. There is a copy of the letter dated 2-3-1956 addressed to the Manager, Industrial Finance Corporation of India, Madras and the reply given by the Madras Industrial Investment Corporation Ltd., Madras. These letters deal with the leasing of the property in question in which Smt. Shyamala Devi (Mrs. A. V. Patro) was a party. There is also a copy of the letter dated 9-3-1956 addressed to Smt. A. Shyamala Devi Patro by the Madras Industrial Investment Corpn. Ltd. regarding the tenancy of the premises. Another letter dt. 2-4-1956 addressed to Madras Industrial Investment Corporation Ltd. by Smt. Shyamala Devi Patro also related to the tenancy agreement of this property. There is also a copy of the appeal dated 4-9-1959 filed before the Taxation Appeals Committee, Corporation of Madras by Mrs. A. Shyamala Devi Patro. A copy of the Special Notice dt. 4-9-1960 issued by the Revenue Department, Corporation of Madras in the name of Smt. Shyamala Devi is also shown to us. There is also a copy of the supplementary bill issued by the Corporation of Madras for levy of property tax for the period 2/62-63 in the name of Smt. Shyamala Devi Patro. A letter dated 11-7-1962 addressed to the Commissioner, Corporation of Madras, by Mrs. Shyamala Devi Patro was also shown to us. Smt. Shyamala Devi Patro and Sari A. Ramariarayana Patro also made a written representation on 31-1-1973 to the Chief Minister of Tamil Nadu regarding the building at No. 38, Whites Road, Madras. Lastly, a copy of the mortgage deed dt. 22-2-1973 was also produced before us. According to the said deed a mortgage loan was obtained by offering the property in question as security for the mortgaged loan and the mortgage deed was executed by Ramanarayan Patro and Smt. Shyamala Devi Patro in favour of the Egmore Benefit Society Ltd. The said deed shows that there are prior mortgages in favour of the said society created on 18-1-1968, 21-2-1988, 23-3-1968, 17-6-1968, 29-7-1968, 17-9-1968, 13-11-1969, 4-1-1969, 2-12-1969, 12-1-1970, 2-7-1970 and 23-10-197.1. These facts would go to show that Smt. Shyamala Devi Patro after the death of her husband from 1952 tin her death was exercising her right as full owner of the half share in the property in question. She was in possession of her share by leasing this property to the tenants. She also filed income-tax returns in the status of HUF consisting of herself, her minor son and daughters. Therefore, she was always conscious of her right in the property Kesava Bagh'. At no point of time she ever attempted to surrender her right in favour of any one. There is absolutely no evidence on the side of the department to show that she attempted to efface herself of the right in the property in favour of Ramanarayan Patro. Added to this, subsequently the property itself was sold in two stages. The first sale was executed on 19-4-1975 under document No. 351 of 1970. The vendors were Smt. Shyamala Devi Patro and Mr. Ramanarayan Patro. Regarding the manner in which they came into possession of the said property, there is mention in the document as under:
Whereas Mr. A. V. Patro became the absolute owner of premises No. 38, Whites Road, Madras-14, described in detail in the schedule hereunder he having succeeded to the same along with other properties as the son and heir of his father Shri A.V. Patro.
And whereas the said property bearing Door No. 38, Whites Road, Madras~14, and on the death of the said Mr. A. V. Patro in the year 1952 the Vendors herein succeeded -- (to) the same as the only heirs of late Mr. A.V. Patro and the vendors have thus become the absolute owners of the said property No. 38, Whites Road, Madras-14. -- A. Shyamala Devi Patro, A. R. Patro and have since been in absolute, possession and enjoyment of the said property in their own right and, The second sale took place on 19th June, 1985 vide Document No. 481 of 1985. In that sale deed, the manner in which the vendors, i.e., the three daughters of the late Shri A. V. Patro, narrated how they came into possession of the property, is as under;
Whereas the Vendors jointly represented to the purchasers that they are the sole and absolute owners of a piece and parcel of land measuring 14 grounds 1020 sq. ft. and the main storeyed building thereon and other constructions on the eastern side, out house, garages bearing Corporation Door Nos. 38 and 39, Whites Road, Madras-600014 comprised in R. S. No. 323/3 more particularly described in the Schedule hereunder, the said property along with 2 grounds 780 sq. ft. on the West was purchased by Shri A. V. Patro on 15-2-1940 from Shri Raja Ravu Janardhana Krishnaranga Ravu Bahadur and Shri Raja Ravu Venkata Raya Krishnaranga Ravu Bahadur by a deed of sale dated 15-2-1940 registered as document No. 336 of 1940 in the books of the Registrar of Assurances, Madras-1 and after the death of A.P. Patro in 1946 the said property devolved on his only son A.V. Patro in, I.P.S. as his sole heir who was in sole and absolute possession thereof till his death on 5-1-1952 and whereas Shri A.V. Patro died intestate leaving behind him his wife Smt. Shyamala Devi, son Ramnarain Patro and the three Vendors abovenamed being his daughters and whereas Smt. Shyamala Devi, Ramnarain Patro sold on 19-4-1975 2 grounds 780 sq. ft. along with the building thereon bearing door No. 38-B to Shri Manoramull Nahar by a Sale Deed registered as Document No. 351 of 75 in the books of the Sub-Registrar, Triplicane leaving a balance of 14 grounds 1020 sq. ft., the storied building which is lying on eastern side, out houses, garages etc., Whereas Ramnarain Patro, son of Shri A.V. Patro died intestate on 17-12-1980 leaving no issues and before his death there were divorce proceedings between Ramnarain Patro and his wife whereby they got divorce in N.J. 15 of 1977 on the file of the City Civil Court of Bombay and divorce was granted on 29-7-1977 and in the said proceedings Smt. Uma wife of Ramnarain Patro relinquished all her right, title and interest in the properties of Ramnarain Patro and also relinquished maintenance and being divorced lost her rights in. her husband's property and whereas Smt. Shyamala Devi Patro, mother of the Vendors died intestate on 16-12-1983, and thus the three Vendors abovenamed being the only surviving heirs to late A. V. Patro became jointly and absolutely entitled to the 14 grounds 1020 sq. ft. and the building thereon.
And whereas the Vendors represented to the Purchasers that they are the only sole and absolute owners of the property described in the Schedule hereunder and no other member of their family has any manner of right title and interest in the property described in the Schedule hereunder.
From all these facts, the conduct of Smb. Shyamala Devi was always to be a sharer of the property known as 'Kesava Bagh'. The Vendors also gave the go bye to the will for establishing the title. Thus the department was unable to substantiate the plea that she surrendered her right in favour of her son. Even in the order passed by the AAC in IT Appeal No. 1286/80-81/1(4), dated 9-7-1984 for the assessment year 1973-74 after analysing the facts in detail in the light of certain judicial pronouncements he clearly came to the conclusion that the property 'Kesava Bagh' was In the possession and enjoyment of both the mother and the son jointly and, therefore, he held that they are the co-owners of this property having half share each. Thus, considering the facts appearing in this case in the light of the above discussion, we hold that the order passed by the Appellate Controller of Estate Duty on this point is quite correct and reasonable. In that view of the matter, we are unable to interfere with the same.
23. In the result, the appeal filed by the department is dismissed.