OAK, C.J. - (1.) THIS is a reference under section 64 of the Estate Duty Act, 1953. Chiranjilal Khetan died on June 4, 1956, leaving considerable property. He was survived by his widow, Smt. Rami Bai, and adopted son, Shri Deokinandan. Smt. Rami Bai and Deokinandan were the accountable persons under section 53 of the Act. The Assistant Controller proceeded to levy estate duty. In fixing estate duty, he included 1/5th share in certain immovable property situated at Hardwar and Jhunjhnu as property of Chiranjilal Khetan deceased. The valuation of that share was fixed at Rs. 54,720.00. Deokinandan appealed against the order of assessment. The appeal was apartly allowed by the Central Board of Revenue. But the Central Board of Revenue did not accept the appeallants contention that the property at Hardwar and Jhunjhnu was endowed property. Being dissatisfied with the appellate decision, Deokinandan applied for a reference to this court. Accordingly, the Central Board of Revenue has referred the following question of law to this court : Whether, on the facts and in the circumstances of the case the inclusion in principal value of the estate of the deceased, of the sum of Rs. 54,720 as representing 1/5th share of the deceased in the immovable properties at Hardwar and Jhunjhnu, was justified in law ?
(2.) THE broad facts giving rise to this reference are these : Chiranjilal Khetan was the son of Seth Ram Bilas Rai. A deed of endowment was executed in the year 1919. THE property now in dispute was not included in the deed of endowment. For a number of years the property was recorded in the name of Seth Ram Bilas Rai. He died in the year 1936. In the year 1954, Chiranjilal applied to the municipal board that the property be registered in the name of the manager of Shri Lakhsmi Nathji Temple, Jhunjhnu, because his father Seth Ram Bilas Rai, had dedicated the property to the temple. Mutation was accordingly made in the year 1956, in favour of the trust. As already mentioned, Chiranjilal Khetan died on June 4, 1956. Mr. Gopal Behari, appearing for the Controller of Estate Duty, raised a preliminary objection that the present case does not raise any question of law, and that the reference is incompetent. In Sree Meenakshi Mills Ltd. v. Commissioner of Income-tax their Lordships of the Supreme Court explained the distinction between questions of fact and question of law. Their Lord-ships observed on page 40 : In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of fats on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site, that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive ? Is it as of right or permissive in character ? Thus, for deciding whether the defendant has acquired title by adverse possession, the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law. In the present case, the question in whether the property in dispute was endowed property, or belonged to the Hindu undivided family of which Chiranjilal Khetan was a member. There is no instrument of dedication covering the property in dispute. The Central Board of Revenue has enumerated several facts having a bearing on this controversy. The question is whether the facts found by the Central Board of Revenue will lead to the inference that the property is endowed. That is a question of law. We thus find that the case does rise a question of law. We overrule the preliminary objection, and hold that the reference is competent. The Central Board of Revenue permitted the appellant to file an affidavit before it. The appellant filed before the Central Board of Revenue a lengthy affidavit covering several matters. The question has been raised whether we should use the affidavit for disposal of the present reference. It appears from the appellate order that the Central Board of Revenue permitted the filing of an affidavit on a limited question, and that the affidavit actually filed went a good deal beyond the limited question. We may not, therefore, make use of the lengthy affidavit filed before the Central Board of Revenue. In statement of the case we find the following observation by the Central Board of Revenue :
(3.) THE Assistant Controller observed that in the vase of Commissioner of Income-tax v. Shri Thakurji Lakshmi Nathji in which the Allahabad High Court held that the endowment created by Seth Ram Bilas Rai and others in 1919, was public religious charitable trust, no reference had been made to the properties now in dispute as belonging to the trust. That observation in the statement of the case in somewhat misleading. THE report in Commissioner of Income-tax v. Thakurji Lakshmi Nathji starts with the statement of the case on page 215. THE statement of the case continues up to page 218. THE judgment of the court is reported on pages 218 and 219. It is true that the judgment of the court did not mention that the property at Hardwar or Jhunjhnu was endowed property. But we find some reference to this question in the statement of the case on page 216 : The dharam karta had to make all arrangements to maintain the wordship and to perform the requisite ceremonies in the temple and whatever remained out of the income was to be spent on, (i) charity to be given at Rishi Kesh, Hardwar and Badrinath..... He found the net income to be Rs. 9,180, out of which he made allowances to the extent of Rs. 2,925, in respect of annual expenses of Chetra at Hardwar, Badrinath and Benares and of Rs. 1,200 for Hospital and other charitable expenditure at Jhunjhnu. It is true that even that recital in the statement of the case did not clearly indicate whether the property now in dispute was endowed property or not. But it is of some significance that the Appellate Tribunal found in that case that a part of the income of the endowed property was being spent at Hardwar and Jhunjhnu. It is legitimate to read the statement of the case along with the judgment in that case. ;