Sabyasachi Mukharji, J. - (1.) In this reference under Section 64(1) of the E.D. Act, 1953, the following questions have been referred to this court: "1. Whether, on the facts and in the circumstances of the case and on a proper interpretation of the relevant deeds, the Tribunal was justified in holding that the deceased was only a shebait and not also a trustee of the Mukhram property ?
(2.) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the shebaitship is a property, the value of which has to be included in the principal value of the estate left by the deceased ?
(3.) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the residential portion of the Mukhram property occupied by the deceased passed on the death of the deceased and the value thereof was includible in the principal value of the estate left by the deceased ?" 2. In order to appreciate the questions before us, it is necessary to state that the dispute about the assessability under estate duty arose due to the death of one Kumargangadhar Bagla (hereinafter referred to as "the deceased") on September 20, 1964. The father of the deceased, late Raja Shew Bux Bagla, by a deed dated January 11, 1888, dedicated the properties situated at No. 41, Cotton Street, Calcutta, and Bisweswar Phatak, Varanasi, to Sri Sri Satyanarayan Jew and other deities appointing him as the sole shebait and trustee. It is instructive, to appreciate the controversy, to refer to certain parts of the said document. After reciting the necessary facts, the document provides as follows : "Whereas the said Shewbux Bagla is desirous of severing for ever the said houses at Calcutta and Benaras and the said articles and furniture from all secular purposes and concerns and of converting the same into absolute debuttar property and limitation reservation or restraint and whereas the expenses of the said Sheva or worship and for the maintenance of the said Chutter at the scale at which they are now performed and worked being considerably larger than the income derived or derivable from the said house and the said Shewbux Bagla with a view to maintain the said Sheva and the said Chutter or their present scheme and scale is desirous of making such provisions therefor as are hereinafter contained, Now This Indenture witnesseth that in pursuance of the said premises and for effectuating the said intention he the said Shewbux Bagla with the consent and concurrence of the said Ganpat Roy testified by his being party to and executing these presents doth hereby grant convey assure unto the said Shewbux Bagla as Shebait of the said idols Sree Sree Iswar Suttyanarainjee and the auxiliary Deities hereinbefore mentioned and to his successors in the office of Shebait...... " 3. Thereafter, the deed gives the description of the properties in question and the habendum clause reads as follows : " To have and to hold the said temples houses lands hereditaments and other premises hereby granted or expressed or intended so to be unto the said Shewbux Bagla as such shebait as aforesaid and his successors in the office of such shebaits upon trust that the said Shewbux Bagla as such shebait as aforesaid and his successors in the office of such shebait shall stand seized and possessed of the said temple houses lands hereditaments and premises and place keep locate and put up the said idols in that portion of the said houses and premises No. 51, Cotton Street, Calcutta, namely, in the same set of rooms where the said idols are at present kept located and put up and to use the said hereditaments and premises as the consecrated temples or places or worship of the said idols to let out or demise such other portions rooms or set of rooms of the same house and premises namely the house and premises No. 51, Cotton Street, hereby conveyed and consecrated or any parts thereof as to the discretion of the said shebait or shebaits can be conveniently let out and demised for any term or period upon and subject to such rents covenants and conditions as the said shebait or shebaits shall think fit and out of the income arising or to be derived therefrom in the first place to keep the said house hereditaments and premises in due and proper repairs and to pay and spend the balance in the manner hereafter provided set out and appointed modifying and verifying the said expenses according to and in due proportion with the increase or diminution of the said income with full and sufficient power and liberty to the said shebait or shebaits to set apart and accumulate such portion of the said income as the said shebait or shebaits shall in his or their discretion shall think fit in order to create a reserve fund therein against any sudden emergency or unforeseen accident in connection with or concerning or relating to the said house and premises or to keep up and maintain the sheba or worship of the said idols in a regular or systematic mode and manner as hereinafter prescribed...... ";