NATHMAL SUKHLECHA Vs. CONTROLLER OF ESTATE DUTY DELHI AND RAJASTHAN
LAWS(RAJ)-1968-12-11
HIGH COURT OF RAJASTHAN
Decided on December 13,1968

NATHMAL SUKHLECHA Appellant
VERSUS
CONTROLLER OF ESTATE DUTY DELHI AND RAJASTHAN Respondents




JUDGEMENT

BHANDARI, (Actg.) C. J. - (1.)THE Central Board of Direct Taxes, New Delhi, has referred the following four questions to this, court under sec. 64 of the Estate Duty Act, 1953, (as it stood prior to the amended Act, 1958) for opinion of this court - (1) Whether on the facts and in the circumstances of the case, there was material to support the finding of the Board that the various properties included in the estate duty assessment with the exception of the residential house valued at Rs. 8,000/- belonged to the deceased in the status of an individual ? (2) Whether on the facts and in the circumstances of the case, the sum of Rs. 70,019/- withdrawn by Smt. Mehtab from her account in the books of the deceased within a period of two years before the date of death was correctly included in this estate as property deemed to pass on the death under sec. 9 of the Estate Duty Act, 1953? (3) Whether on the facts and in the circumstances of the case, the claim for deduction of the following amounts as debts due by the deceased was correctly disallowed under sec. 46 (1) of the Act determining the chargeable value of his estate for purposes of estate duty - (i) Rs. 1,48,054/- and Rs. 3,182/- being respectively the aggregate amount of the balance standing to the credit of accounts of Smt. Makhoo, Smt. Mehtab and Smt. Vimla Kumari in the books of the deceased at the date of his death and the interest accrued thereon; (ii) Rs. 39,972/- standing to the credit of the Upkar Fund Account in the books of the deceased at the date of his death? (4) Whether, on the facts and in the circumstances of the case, the sum of Rs. 2,113/- paid by the deceased to charity by debit to the Upkar Fund Account in his books within a period of six months before the date of his death was correctly included in his estate as property deemed to pass on the death under sec. 9 of the Act?
(2.)SHRI Nemchand Sukhlecha (hereinafter referred to as the deceased) died on 26-6-1956, leaving behind his widow Smt. Makhoo, his son Nathmal Sukhlecha, Nathmal's wife Smt. Mehtab & Smt. Vimla Kumari, daughter of Nathmal. Nathmal, being the accountable person, filed the Estate Duty return of the deceased before the Assistant Controller of Estate Duty, Jaipur. The Assistant Controller determined the principal value of the estate at Rs. 3,66,673/- taking the status of the deceased as an individual. The accountable person filed an appeal before the Central Board of Revenue and took the following objection before the Board - (i) The correct status of the deceased was that of a member of an undivided Hindu family and not of an individual. (ii) The Assistant Controller was not justified in adding a sum of Rs. 1,24,124/- to the estate of the deceased on the ground that these were gifts made by the deceased within the two years of his death under sec. 9 of the Act, (iii) The Assistant Controller was not justified in disallowing the debts aggregating to Rs. 1,48,054/- and interest thereon amounting to Rs. 3,182/ -. (iv) The Assistant Controller was not justified in including the sum of Rs. 39,972/-and Rs. 2,113/-in the estate as these amounts had been debited to charity by the deceased. With regard to the first objection the Central Board of Revenue found that the claim that all the property belonged to the joint family had not made either at the time of the filing of the return or during the assessment proceedings before the Assistant Controller and the matter was raised for the first time in appeal, The Board further found that the deceased had been submitting his income-tax returns showing his status as individual. The Board, therefore, came to the con-clusion that this contention of the accountable party was not established. Question No. 1 referred to this court relates to this contention of the accountable person.
The following facts are necessary to be mentioned for properly apprecia-ting the second question. On Divali day of St. 2003 (Kartik Vadi 30) the deceased credited in his account books a total amount of Rs. 2,85,513/- in favour of Nathmal Sukhlecha, his wife Smt. Makhoo and his son's wife Smt. Mehtab, the details whereof are as under - In the account of Smt. Makhoo . . . Rs. 86,727. 00 In the account of Smt. Mehtab . . . Rs. 1,00,000. 00 In the account of Shri Nathmal . . . Rs. 98,786. 00 Total . . . Rs. 2,85,513. 00 According to the accountable person these amounts were given as gifts by the deceased to his above named three near relatives. The deceased debited these amounts in his books against capital account. These accounts were later on operated. The account of Smt. Makhoo showed a credit balance of Rs. 82,189,00 on Asadh Vadi 12 Svt. 2011 corresponding to 26th June, 1954 and the account of Smt. Mahtab also showed a credit balance of Rs. 44,181/- on that day, but the account of Nathmal was squared up and did not show any credit or debit balance on that day. The account of Mst. Mehtab further revealed that Rs. 21,001. 00 were transferred from her account to the accountant of her daughter Vimla Kumari on Kartik Vadi 30 Smt. 2009 corresponding to 18th Oct. , 1952 and she had withdrawn Rs. 70,019/- within two years before the death of the deceased. It was contended by the accountable person that the entire amount of Rs. 2,85,513. 00 should be treated as gifts to Smt. Makhoo, Smt. Mehtab and Shri Nathmal, which the deceased made to them on the Divali day of Smt. year 2003. The finding of the Assistant Controller is not clear on the Point, but he seems to have taken a view that there were no gifts made on the Divali day of Svt. 2003 as no delivery of the money was made and the money remained with the deceased and that as a matter of fact no delivery could at all be made as the cash in hand on that date on which the transfer entries were made was to the extent of Rs. 38,721/- only, and further the gifts were not accepted by any of the donees as these entries in the books of account of the donor did not bear the signatures of the donees signifying their acceptance of the gifts. However, he appears to have taken the view that the gifts were valid to the extent of the moneys withdrawn by the various donees from their respective accounts out of the sums donated by the deceased. Then the Assistant Controller took into consideration as to how much money had been withdrawn within two years before the death of the deceased. He held that Smt. Mehtab had withdrawn Rs. 70,019/- and Shri Nathmal had withdrawn Rs. 54,105/- within two years before the death of the deceased. Thus in his view though the gifts were valid for these amounts, yet as these gifts must be taken to have been made on various dates when these amounts were withdrawn within two years before the death of the deceased, they must be deemed to pass on as the estate of the deceased under sec. 9 (1) of the Act. Thus he included a sum of Rs. 1,24,124/- in the principal value of the estate of the deceased. The Central Board of Revenue reduced this addition by a sum of Rs. 51,105/- with the following observations : "after having considered the arguments advanced by the accountable person and the submission of the Assistant Controller, I am of the view that while the Assistant Controller was justified in adding the sum of Rs. 70,019/- withdrawn in the account of Smt. Mehtab, the addition of the entire amount of Rs 54,105/withdrawn from the account of Shri Nathmal was not justified. A perusal of the account of Shri Nathmal shows that he had withdrawn all the amounts gifted to him more than two years prior to the death of the deceased and the credit of Rs. 51,001/- had been made to his account not by a gift made by the deceased but by the gift made by Smt. Makhoo and as such the provisions of sec. 9 (1) cannot be said to apply to this account. The balance of Rs. 3,104/- can also be said to have come out of the interest payable to Shri Nathmal. The addition would therefore be reduced by a sum of Rs 51,105/ -. " Under question No. 2 the point for determination by this court is whether the amount of Rs. 70,019/- was correctly included in the estate of the deceased as property deemed to have passed on the death under sec. 9 of the Act.

The question No. 3 relates to various amounts which were payable by the deceased to Smt. Makhoo, Smt. Mehtab and Smt. Vimla Kumari in the account-books of the deceased and also a sum of Rs. 19,972/- standing to the credit of Upkar Fund Account in the account-books of the deceased on the day of his death. These sums were disallowed as debts under sec. 46 (1) of the Act by the Central Board of Revenue. The question in whether this was not in accordance with law.

Question No. 4 relates to the sum of Rs. 2,113/- which were shown on the debit side in his account-books in the Upkar Fund and which may be taken to have been spent by the deceased within a period of six months before the date of his death.

We first take up the question No. 1. This question has not been correctly formulated. The contention of the accountable person before Central Board of Revenue was that the deceased was the member of the Joint Hindu family and the entire estate of the deceased was not individual property, but was the property of the joint Hindu family. So far as the residential house valued at Rs. 8,000/- was concerned it was held to be the joint-family property by the Central Board of Revenue, but the rest of the estate was held to be of the deceased in the status of an individual. It was for the accountable person to show that the estate was a joint family property. He failed to even assert this before the Assistant Collector. This point was taken for the first time before the Central Board of Revenue and the attention of the Central Board of Revenue was drawn to the fact that there was evidence in the shape of 'pattas' of immovable property to show that the deceased did form a joint family which owned some property and as early as in Smt. 1961 this joint family had money lending business with the capital, which stood at Rs. 2,250/10/5 at that time in the name of Dhansukh Das Nemchand (father of the deceased ). It is not clear from the order of the Central Board of Revenue whether this fact was accepted as correct. This allegation was held proved by it, but the contention of the accountable parson was rejected on the ground that neither at the time of the filing of the return nor during the assess-ment proceedings this matter was raised and that the deceased has been submitting his income-tax returns showing his status as individual. The reference has been made at the instance of the accountable person and the proper question, which the Central Board of Direct Taxes meant to refer was whether this conclusion of the Central Board of Revenue was incorrect. In this light we redraft (question No. 1) in the following form : "whether on the facts and in the circumstances of the finding of the Board that the various properties included in the estate duty assessment, with the exception of the residential house valued at Rs. 8,000/-, belonged to the deceased in the status of an individual, was correct ?"

We answer this question in the affirmative for the simple reason that the accountable person did not agitate before the Assistant Controller that the Estate duty assessment should be done by treating the deceased as a member of an undivided Hindu joint family. Further the material which was sought to be placed before the Central Board of Revenue did not show that the estate which was being assessed had been acquired out of the joint family assets. There was also admission of the deceased as he always submitted his income-tax returns in the status of an individual. In our opinion the order of Central Board of Revenue on this point was correct,

Now we come to question No. 2.

This question relates to the validity of the gift of Rs. 1,00,00/-said to have been made to Smt. Mehtab on the 'divali' day of Smt. 2003. As already mentioned, in the account-books of the deceased, he made entries, which shows that he had withdrawn Rs. 1,00,000/- from his capital account and transferred it to the account of Smt, Mehtab on that day. It is not the case that the deceased delivered Rs. 1,00,000/- to Smt. Mehtab on that day. In fact he had not so much money in cash to be delivered to the various donees. The question, therefore, arises whether in these circumstances it can be held that there was a valid gift of 1,00,000/- on that day. It is contended by Mr. Sumerchand, appearing on behalf of the accountable person that it is not necessary in law that there must have been an actual delivery of Rs. 1,00,000/- to Smt. Mehtab by the deceased in order to effectuate the gift, The act of the donor in the withdrawing of Rs. 1,00,000/-from the capital account and crediting to the account of Smt. Mehtab, must been taken to be sufficient to constitute the delivery of Rs. 1,00,000/-to Smt. Mehtab by the donor. For this he has relied on a number of authorities including K. P. Brothers vs. Commissioner of Income Tax, New Delhi (l) to which one of us was a party. 9. Before we take the authorities cited by Mr. Sumerchand into consideration we think it proper to discuss the relevant law on the subject. The deceased belonged to the erstwhile Bikaner State and it is conceded by Mr. Sumerchand that in the year 1946 the Transfer of Property Act or law analogous to that was not in force in that State. The question of the validity of the gifts is, therefore to be examined in the light of pure Hindu Law on this subject.

In the general procedure of making gifts it has been stated in the History of Dharmasastra Vol. II part II by Shri P. V. Kane that, - "the general procedure of making gifts may be stated here once for all. The donor and the donee should have taken their bath and should wear two white garments each, the donor should wear a pavitra, perform acamana, should face the east, should wear the sacred thread in the upavita form, be seated on a pure seat (of kusa &c.) and seat the donee on a seat and make him face the north, then the donor should utter the name of the subject of gifts, its presiding deity and the purpose for which he makes the gifts, and say 'i make a gift to you of such and such an article, pour water on the donee's hand, and when the donee says 'give' the donor should sprinkle water on the subject of gift and place it into the hand of the donee, who utters the syllable 'om' and 'says 'svasti'. Then daksina is given to the donee. The detailed formula is set out below. Necessary changes have to be made as to the statement of the occasion, the receipt of the subject of gift &c. (if it is land or a house, it cannot be received in the hand; the donee simply walks round it or on it or enters it ). "

Under the provisions of sec. 123 of the Transfer of Property Act also it has been laid down that for the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered. Thus when there is no registered instrument signed by or on behalf of the donor and attested by atleast two witnesses, the gift of moveable property can only be effected by delivery. The point that arises for consideration is whether mere entries made by the deceased in his account-books withdrawing Rs. 1,00,000/-from the capital account and crediting it in the account of his daughter-in-law Smt. Mehtab can be deemed sufficient to complete a gift without there being actual delivery of Rs. 1,00,000/- to Smt. Mehtab.

A donor may make certain entries in his account-books in favour of a person and may change his mind the next day and cancel those entries. Thus, he can retrace his step at any moment. There is nothing to stop him in doing so. At one time a donor may manifest his intention to make gift of Rs. 1,00,000/- to his near relative and make entries in his account-books on the credit side in the name of his relative, but the next day he may change his mind. The Hindu Law requires that there must be an act on the part of the donor showing that he had made a gift which cannot be revoked and if a thing is actually delivered by the donor to the donees, it is clear that there can be no revocation. When the thing has not been actually delivered the question arises as to under what circumstances such a delivery should be presumed that there can be no revocation of the gift. Mr. Sumerchand has contended that if an entry had been made by the donor in his account books in favour of the donee and the donee had also accepted the making of such entry the transaction amounts to a gift as it is not revocable on the part of the donor to cancel the entries made. He urged that in the circumstances of the case, it may be presumed that Smt. Mehtab had consented to the making of the entry in her favour in the account-books of the donor.

Assuming that this is so still it was open to the donor to refuse to give Rs. 1,00,000/- to Smt. Mehtab and she could not have enforced her claim to it in a court of law against the deceased. The deceased could have very well pleaded that the agreement to make a gift of Rs. 1,00,000/- was without consideration and in the absence of any registered instrument, as required under sec. 25 (1) of the Indian Contract Act, the donor could not be held liable to pay Rs. 1,00,000/- to Smt. Mehtab. Hindu Law contemplates such complete divestment of the property gifted by the donor that it must not be left open to him to say in future that it still belonged to him. In our opinion under Hindu Law any mode of delivery of the thing gifted may be adopted as is consistent with the nature of the property and the circumstances of the case, but it must be such that the donor may not revoke his act in future and claim in law the thing donated to be his own.

(3.)HAVING clarified our views on this point we proceed to discuss the case law on this subject.
In K. P. Brothers vs. Commissioner of Income-Tax (supra) the facts were that one Kishan Chand was a partner of the registered partnership firm M/s. K. P. Brothers Jaipur. Kishan Chand had an account in the firm. On 31st September, 1953, on the instructions of Kishan Chand the assessee firm debited Kishanchand's account with a sum of Rs. 1 lakh and credited Rs. 60,000/- in the account of his father, Maya Ram, and Rs, 40,000/- in the account of his mother, Shrimati Jasoda Bai. It was held that where cross entries were made in his banker's account-books debiting his account and crediting the accounts of donees with the amounts gifted, it can be inferred that the amounts of the gift were credited to the donees' accounts with his consent. The delivery of the amounts gifted were duly effected and the gift was a valid gift. In that case this court referred to Chambers vs. Chambers (2); Muthappa Chettiar vs. Commissioner of Income-tax (3); and Hanmantram Ramnath vs. Commissioner of Income-tax (4 ). These cases were distinguished on the ground that in these cases the donees made entries in their own books of account in pursuance of their intention to make gifts without allocation of specific assets or funds corresponding to such entries. In this authority the case of Chimanbhai Lalbhai vs. Commissioner of Income-tax (4) was also referred and relied on. The point of distinction, which may be noticed in the instant case and the case M/s. K. P. Brothers vs. Commissioner of Income-tax (supra) is that in the latter case the donor had instructed the joint family firm, in which he was a partner, to debit Rs. 1,00,000/- in his account and credit Rs. 60,000/- in the account of his father and Rs. 40,000/- in the account of his mother, to whom he had made the gifts of these amounts. The matter had passed out of the hands of the donor and at his instructions the third party had made entries in the account-books and that third party had incurred liability on itself. The donor in such circumstances could not have retraced his steps and say that he would keep Rs. 1,00,000/- to himself. Such an irrevocable act on behalf of the donor was considered sufficient to construe delivery of Rs. 1,00,000/- to the donees. In Chimanbhai Lalbhai vs. Commissioner of Income-tax (supra), which was relied upon by the court, the donor had made gifts to his son and his daughter. He instructed his joint family firm, which acted as his bankers and with which he had account, to debit him with a sum of Rs. 5,00,000/- and Rs. 2,00,000/- and credit these amounts to the accounts of his son and daughter. It was held that there were valid gifts by the donor to his son and daughter. There is yet another case of Bombay High Court in Commissioner of Income-tax, Ahmedabad vs. New Digvijay Singhji Tin Factory 6 ). In that case the donor executed a writing on February 2, 1946, stating that he would give out of his share in the business as computed at the end of the year l/4th amount to his daughter-in-law and his grand-son. In this firm the donor and his son were partners. On November 12, 1947, entries were made in the account books debiting the donor with the sum of Rs. 8,83,070/-, which was the sum representing his share of capital and accumulated profits entering on his credit one item of Rs. 2,25,000/ -. Out of the balance various amounts were credited in the names of donor's daughter-in-law and the minor children of his son. Then on April 15, 1948, the donor executed another writing affirming the transfer that was made in he firm's books. Yet another writing was executed two days after the second writing, which was addressed to his daughter-in law, in which he affirmed the various gifts he had made. It was held that mere book entries could not result in a valid gift or trust, yet in that case the gifts were accepted by donees, and the firm accepted the transaction, paid interest on the amounts of the gifts and allowed the donees to withdraw moneys. It was held that there was ample material to satisfy the legal requirements of a completed and valid gift. It was further held that the delivery could be symbolical, and actual physical delivery was not essential.

In Balimal Nawal Kishore vs. Commissioner (7) the learned Judges of the Punjab High Court, after referring to several authorities on the point observed that - "the principles deducible from a study of these decisions appear to be that the validity of a gift made by way of debit and credit entries in the account books of a firm of which the donor is a partner must depend entirely on whether, in the circumstances, this is a natural method of transfer, and it is certainly not necessary for the donor to withdraw sums in cash from the firm to be reinves ted by the donee or donees in the firm. " The gift in that case was held to be valid. In this case also debit and credit entries were made in the account books of the third party.

Mr. Sumerchand has further cited decisions of the Madras High Court in which validity of gifts by a Mohammodan was under consideration and has argued that under Mohammedan Law the delivery of physical possession is necessary to effect a gift, yet it was held that such gifts were valid inspite of the fact that there was no actual delivery.

In A. M. Abdul Rahman Rawther Co. vs. Commissioner of Income-tax (8) a Mohammedan purported to make gifts by incorporating certain entries in his accounts on 8th June, 1954. He debited himself to the extent of Rs. 50,000/- and credited his two daughters with Rs. 25,000/- each. On 9th June, 1954, a partnership deed was executed between the father and the daughters. Thereafter, there was a division of the profits of the business in accordance with the terms of the partnership. The income-tax officer rejected the application of the registration of the firm under sec. 26-A of the Income-tax Act. It was held by the Income-tax Tribunal that no fresh capital had been brought into the business, that there was only an artificial division of the capital and that some book entries without anything more by way of collateral evidence were not sufficient to complete the gifts. The High Court of Madras took the view that the principle that the possession of the thing gifted must be given physically to the donee must depend on the nature of the subject-matter of the gift, and in such circumstances where the subject-matter of the gift consisted of the assets of the firm, the entries in the accounts, followed by such acts as would effectuate a divestment on the part of the donor would be sufficient. In this connection it was pointed out that after making the necessary entries, a partnership document was executed, in which the assessee expressly admitted that of the capital of the partnership, the two daughters were entitled to Rs. 25,000/- each and further that following the formation of this partnership, the partnership was registered with the Registrar of the Firms, and the formation of the firm that also notified to them. These circumstances were deemed sufficient to hold that there was divestment of the money donated to the donee. Reliance was placed in this case on the earlier decisions of the Madras High Court reported in Hajee Abdul Karim and Sons vs. Commissioner of Income-tax (9) Ratnaswamy Nadar and Sons vs. Commissioner of Income-tax (lo ).

In this case there were circumstances which would have clearly defeated any claim of the donor if he ever made such claim to the sum of Rs. 50,000/-, which he had donated to his two daughters. As such it was laid down that if the circumstances show that a donor had acted in a manner so as to estop him from making any claim to the amount donated by him to the donees it may be held that he had divested himself irrevocably from the money donated and there was sufficient delivery of the money to the donees though in fact such money was not actually delivered in cash. Similar is the view taken in Qamarunnissa Begum vs. Fathima Begum (ll ). In K. A. Mohammed Kassim vs. The Controller of Estate Duty (12), which was also a case of gift under Muhammadan law, it was held that the share of the donor in the assets of the partnership on the date of the gift was not insufficient to support the gift of the donated amount, the debit entry in the account of the donor-partner and the credit entries in the accounts of the donee-partners were a sufficient declaration of the gift made by the donor, a sufficient acceptance of the gift by the donees and a delivery of such possession as the subject of the gift was susceptible of. In this case there was a partnership consisting of father and his three sons. On 31st December, 1954 a sum of Rs. 2,25,000/- was debited in the account of the father in the partnership firm and a sum of Rs 75,000/- each was credited in the accounts of his three sons who were partners in the firm. This is also a case, in which the entries about the gift were made in the account-books of the third party that is the partnership firm and as a result of these entries made in the account books of the firm, rights and interests of this partnership were also affected. In these circumstances the conclusion arrived at by the Kerala High Court may be justified.

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