Pathak, J. - (1.)THE Board constituted under Section 4, Estate Duty Act, 1953, has referred the following question under Section 64(1) of that Act (as it stood prior to its amendment in 1958) for the opinion of this court:
" Whether, on the facts and in the circumstances of the case, the value of the haveli was correctly included in the principal value of the estate of the deceased, as the value of property deemed to pass on his death under Section 10 of the Act ? "

(2.)MOHD. Obedulla Khan died on March 7, 1958. On his death his widow, Bibi Ahmadi Begum, as the accountable person under Section 53 of the Act, filed an account of the properties comprised in the estate of the deceased. The net value of the estate was assessed at Rs. 40,025. The Assistant Controller of Estate Duty, Meerut, determined the principal value of the estate passing on the death of the deceased at Rs. 7,99,474 and the estate duty payable thereon at Rs. 1,11,144.80. Among other properties it included the value of a haveli in village Udaipur Kalan at Rs. one lakh. He found that the property had been gifted by the deceased to the accountable person in 1918, but the deceased continued to live there till the time of his death in the same manner after the gift as he was living before the gift. He held that the provisions of Section 10 of the Act were attracted and that, therefore, the property must be deemed to have passed on the death of the deceased. The accountable person appealed to the Board under Section 63 of the Act. Before the Board it was pointed out that while the property was gifted by the deceased to the accountable person in the year 1918, it was later transferred by the accountable person to a wakf-ul-aulad on July 10, 1922. It was admitted that the deceased continued to stay in the house but, it was urged, his residence there was as a mere licensee and it could not be said that the deceased was enjoying any benefit from the property. It was also pointed out that the donee had parted with the gifted property in favour of the wakf. Upon these considerations it was said that the provisions of Section 10 were not attracted.
The Board found that the deceased continued to live in the house even after the gift and at no time was he completely excluded from the gifted property. It accordingly confirmed the inclusion of the property in the estate of the deceased. At the instance of the accountable person this reference has been made now.

Three contentions have been raised before us on behalf of the accountable person. The first contention is that property taken under a gift cannot be deemed to pass on the donor's death where the donor continues in possession merely by reason of the circumstance that he is the husband of the donee. It is urged that the continued residence of the donor is referable not to any proprietary right in the property but merely to the relationship of husband and wife between the donor and the donee.

(3.)SECTION 10 of the Act, as it stood at the relevant time, provided:
" 10. Gifts whenever made where donor not entirely excluded. Property taken under any gift, whenever made, shall be deemed to pass on the donor's 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 :

Provided that the property shall not be deemed to pass by reason only that it was not, as from the date of the gift, exclusively retained as aforesaid, if, by means of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the donor or of any benefit to him for at least two years before the death. "

There is no dispute that the proviso to Section 10 does not come into play in this case. The question is whether upon a proper construction of the parent provision in Section 10 it is possible to say that inasmuch as the donor and the donee were related to each other as husband and wife the entire exclusion of the donor from the property gifted is contemplated by the terms of Section 10.