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It will be appropriate here to keep the actual language of the statute in front of us. The language of section 10 of the Estate Duty Act is in these words :

"Property taken under any gift, whenever made, shall be deemed to pass on the donors death to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise."

It is followed by a proviso with which we are not concerned. A plain look at the section indicates that what will be deemed to pass would be (1) property whose bona fide possession and enjoyment were not immediately assumed by the donee, and (2) whose retention thenceforward was not to the entire exclusion of the donor or of any benefit to him by contract or otherwise. We shall avoid using the word "limb" in case it crates any confusion. That is the main structure of this section. The idea is plain. First, the bona fide possession and enjoyment must be immediately assumed by the donee; the second is that the retention of the possession and enjoyment of the property must be to the entire exclusion of the donor or of any benefit to him by contract or otherwise. But the significant point for decision in the present reference before us is, does this involve or affect the marital right of a husband for coverture and consortium with the wife of a house where she lives ? The plain contention of the counsel for the revenue is that once a husband has made a gift of a house to his wire, he cannot go to hat house any more for any purpose. We feel it a little difficult to accept such an unqualified submission. The language and the words of section 10 of the Estate Duty Act quoted above indicate that it is the possession and enjoyment of the property which are the target. If they are not immediately assumed by the donee and if the donor is not entirely excluded from them, it is then that the property will be deemed to pass on the death of the donor within the meaning of section 10 of the Estate Duty Act. But then it is the proprietary right. We have already stated as a fact in this case that the title deed or the deed of conveyance reserves no right for the husband and not even mentions his name. There is in fact no contractual or other right in law or in equity in respect of the property, or its use and enjoyment in favour of the husband. When a husband does to his wife for coverture or consortium, he does not go to the property but goes to the wife. In such a case the husbands going to the house is not making use of or enjoying the property in question. It is this proprietary element in respect of the house gifted which must be emphasised and borne in mind in applying the principles laid down by the Supreme Court in Da Costas case. These considerations are more vitally germane to the case of a husband and wife than normally to a case of parents and their sons.

This leads to a major difference between the Supreme Court decision in George Da Costas case and the present reference. The gift in the Supreme Court case was a gift of the house itself. The gift in the present case is not of the house. Mr. Balai Pal for the revenue realized this difficulty and, therefore, he tried to meet this objection by drawing our attention to section 2(15) of the Estate Duty Act which provides :

"Unless the context otherwise requires, property includes any interest in property, movable or immovable, the proceeds of sale thereof and any money of investment for the time being representing the proceeds of sale and also includes any property converted from one species into another by any method."

The next part of the Supreme Court decision in George Da Costas case to which attention has too be drawn is where it dealt with the case of Attorney-General v. Seccombe and Clifford John Chick v. Commissioner of Stamp Duties a decision of the Privy Council. The Supreme Court observed at page 502 of the report already quoted that the view taken by Hamilton J. in Attorney-General v. Seccombe was not consistent with the opinion of the Judicial Committee in Chick v. Commissioner of Stamp Duties. It will be, therefore, essential to have a look at these two decisions.

Lastly, this case is different from the case decided by the Supreme Court in George Da Costa v. Controller of Estate Duty on one more significant point. All these cases which we have been considering were cases where there was some kind of previous right, possessory or otherwise, of the donor in respect of the property gifted. In Da Costas case, for instance, the property had already been purchased by the father both in his name and in the wifes name and the parents ultimately making gift of the house to the sons. Again, in Attorney-General v. Seccombes case the grand-uncle was formerly living in the very house which he made a gift of to his grand-nephew. Also in Clifford John Chicks case, the father was making a gift of the house where he had possessory and legal rights too his son before he made a gift of it. It is in such a context, a meaning has to be given to the expression, "entire exclusion of the donee". Normally, therefore, it means to exclude a pre-existing right which was otherwise included or would have been included but for the gift. But here in respect of this property, No. 33 Apcar Garden, the Asansol husband had no pre-existing right at all. At the moment when title begins in this case in 33 Apcar Garden, it is a sole title by Mrs. Shamsun Nehar Mansur. The whole context of such expressions as "bona fide possession and enjoyment of it was not immediately assumed by the donee" and "thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise" under section 10 of the Estate Duty Act appears to exclude a person whose right is already there to the use and enjoyment of the property but here there is no such right of the husband either to the use or enjoyment of the property, No. 33 Apcar Garden, in the present reference. Therefore, we are unable to hold that the doctrine of "exclusion" as laid down in section 10 of the Estate duty Act and as interpreted by the Supreme Court has any application to the facts of this reference.