Satish Chandra, J. - (1.) THE Appellate Tribunal has submitted this statement of the case and has referred the following question of law for the opinion of this court: " Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the value of the Kanpur property was not includible in the estate of the deceased ? "
(2.) THE dispute relates to the estate of Shri T.D. Kochhar who died on August 24, 1961. THE property in dispute was built between 1931 and 1937, and was registered in the name of the wife of the deceased, namely, Smt. Tulsa Devi. THE source of money spent on this property was the husband, Shri T. D. Kochhar. Shri Kochhar continued to reside in the house till his death. On these facts the Assistant Controller of Estate Duty included the same in the estate of the deceased. THE accountable person filed an appeal. The Zonal Appellate Controller held that in view of Section 6 of the Estate Duty Act the deceased had no disposable interest in the property and hence it could not be included in his estate. The Appellate Controller rejected the alternative submission raised on behalf of the department that the property was includible under Section 10 of the Estate Duty Act. On appeal the Tribunal affirmed the findings of the Appellate Controller and dismissed the appeal in respect of this Kanpur property. The facts are not disputed. The deceased gifted the money to his wife. From this gifted amount the house property in dispute was built and registered in the name of the wife. The husband continued to live in it till bis death.
(3.) SECTION 6 of the Estate Duty Act provides that property which the deceased was at the time of his death competent to dispose of shall be deemed to pass on his death. It is well-settled that the property which stands benami in the name of another is one in respect of which the beneficial owner has no competency to dispose of. Before he can dispose of such a property he has to acquire a declaration from the appropriate court of law releasing the property in his favour. See Alok Mitra v. Controller of Estate Duty, 1971 82 ITR 450 . In the alternative it was urged that the case is covered by Section 10 of the Act which provides : " 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: Provided further that a house or part thereof taken under any gift made to the spouse, son, daughter, brother or sister, shall not be deemed to pass on the donor's death by reason only of the residence therein of the donor except where a right of residence therein is reserved or secured directly or indirectly to the donor under the relevant disposition or under any collateral disposition. " ;