C.S.P. Singh, J. - (1.) THE Income-tax Appellate Tribunal, Allahabad, has referred the following question of law for the opinion of this court: " Whether, on the facts and circumstances of the case and a true and correct interpretation of the deed of partition and relevant provisions of the Estate Duty Act, the finding of the Tribunal that the deceased had an interest in the property which terminated on her death and benefit accrued/ arose and passed by the termination of such interest within the meaning of section 7 of the Estate Duty Act is correct ? "
(2.) THE assessee, the accountable person, is the son of one Raja Lalta Prasad, who died in the year 1924, leaving behind his widow, Rani Kalawati, and five sons, one of whom is the accountable person, and his brother, Rai Bahadur Sahu Har Prasad, and his son, Sahu Jagdish Prasad. THE family was joint at the time of the death of Raja Lalta Prasad. On April 10, 1933, a partial partition took place, which was followed by a final partition on December 18, 1941. In that, Rani Kalawati relinquished all her claim to the property in consideration of a monthly payment of Rs. 125 to her during her lifetime by each of her four sons. THE sons undertook personal liability to pay the amount, and, further, under the terms of the deed, the properties held by them were expressly charged for the payment of the amount. We will refer to the relevant clause of the deed a little later. Rani Kalawati died on December 16, 1955, and Kr. Harish Chandra filed a return. In the return filed, the value of the annuity of Rs. 6,000, which the deceased was receiving, was omitted. THE Asst. CED, taking the view that the deceased had an interest in the properties to the extent of Rs. 6,000, added the like amount to the value of the estate of the deceased assessable under Sections 7 and 40 of the Act. THE order was confirmed in appeal both by the Zonal Appellate Controller and the Tribunal. Counsel for the assessee contended that Section 7 was not attracted as the deceased did not have any interest in any property, and further that no benefit accrued or arose by cessation of her interest. It was further urged that the interest of the deceased was not capable of valuation under Section 40 of the Act, and so even in case Section 7 was attracted, the addition could not be made. To begin with, it will be convenient to dispose of the contentions based on Section 40 of the Act. The question referred has already been set out earlier. It is apparent from the frame of the question that it does not include within its ambit the question relating to Section 40 of the Act. Further, from the order of the Tribunal, it is clear that no contention based on Section 40 of the Act was either raised or canvassed before it. This being so, it is not possible to allow counsel to raise a plea based on Section 40 of the Act. Turning now to the dispute regarding the applicability of Section 7. The relevant part of the provision may be extracted : " 7. (1) Subject to the provisions of this section, property in which the deceased, or any other person had an interest ceasing on the death of the deceased, shall be deemed to pass on the deceased's death to the extent to which a benefit accrues or arises by the cesser of such interest, including, in particular, a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara, Marumakkattayam or Aliyasantana law."
(3.) IN order that Section 7(1) should be attracted, it is necessary that the deceased should have had an interest in some property, and as a result of the interest ceasing or coming to an end on account of the death, some benefit should have accrued or arisen to some other person. Before discussing the applicability of this provision, it will be useful to refer to the partition deed under which Rani Kalawati became entitled to this annuity. Paragraph 18 of the preamble recites : "(18) AND WHEREAS the said RANI KALAWATI the party hereto of the SEVENTH part, has, out of love and affection for her sons, namely, the parties hereto of the THIRD, FOURTH, FIFTH and the SIXTH parts, agreed to waive and release all her claims, demands and rights in and unto the said entire estate which is the subject matter of these presents whether by way of maintenance, residence, or on account of her share on partition of the said estate by her sons and in consideration thereof EACH of the said parties hereto of the THIRD, FOURTH, FIFTH and the SIXTH parts agree and undertakes, jointly and severally to pay to her, the said RANI KALAWATI, their mother, a sum of Rs. 125 (Rupees one Hundred and Twenty-Five) per month during her lifetime. PROVIDED that the right to receive the said sum of Rs. 125 (Rupees one Hundred and Twenty-Five) per month from EACH of her sons, namely, the parties hereto of the THIRD, FOURTH, FIFTH and the SIXTH parts is personal to the said Rani Kalawati, the party hereto of the SEVENTH part, and is not transferable and upon her death the said right to receive the said amount from the aforesaid parties would terminate. " This is followed by Clause 3 of the substantive part of the agreement, which is to the following effect: " Clause 3.--THAT IN CONSIDERATION OF THE AGREEMENT AFORESAID and in consideration of monthly payment of a sum of Rs. 125 (Rupees one hundred and twenty-five only) to the said Rani Kalawati the party hereto of the SEVENTH part, during her lifetime by EACH of her four sons, namely, the parties hereto of the THIRD, FOURTH, FIFTH and the SIXTH parts, the said Rani Kalawati the party hereto of the SEVENTH part doth hereby relinquish all her claims whether by way of maintenance or residence and all her right to claim a share in the said joint family estate on partition among her sons, IT BEING DISTINCTLY PROVIDED that the parties hereto of the THIRD, FOURTH, FIFTH and the SIXTH parts shall be jointly and severally responsible for the payment of the full sum of Rs. 6,000 (Rupees six thousand) per annum which shall be paid by each of her sons at the rate of Rs. 125 (Rupees one Hundred and Twenty-five only) per month and all the properties and estate held by the parties hereto from the THIRD to the SIXTH part, namely, the said Raja Radha Raman, the said Kr. Harish Chandra the said Kr. Krishna Chandra, the said Kr. Jyoti Swaroop, are hereby charged and shall remain charged with the payment of the full sum of Rs. 6,000 (Rupees Six Thousand) at the end of any year, i.e., by Dasehra or Asouj Sudi 10 (Dasmi) of each year, it shall be open to the said Rani Kalawati to realise the sum or sums due to her, jointly or severally, from any or all the parties hereto of the THIRD, FOURTH, FIFTH and the SIXTH parts and from the properties charged hereunder, namely, those mentioned in the respective lots detailed in the SCHEDULES numbered SECOND, THIRD, FOURTH and FIFTH appended hereto and also from other properties belonging to the said parties, namely, the parties hereto of the THIRD, FOURTH, FIFTH and the SIXTH parts." ;