Sudhindra Mohan Guha, J. - (1.) This is a reference by the Controller of Estate Duty, West Bengal, Calcutta, which arises out of the estate duty proceedings consequent on the demise of Smt. Charushila Dassi, widow of Aukshoy Kumar Ghosh, on November 13, 1959. Aukshoy Kumar Ghosh died on November 23, 1909 and before his death he disposed of his properties by a testament dated May 11, 1907. Letters of administration with a copy of the will annexed were granted to Smt. Charushila Dassi as the Administrative by the High Court on April 4, 1910. The estate was worth about Rs. 17.64 lakhs at that time.
(2.) Under the said will the testator gave Smt. Charushila Dassi, for her life, a right of residence in the family dwelling house. She had to be maintained out of the estate in the same way as she was being maintained during his lifetime. While being so maintained, she was to receive Rs. 25 per month out of the estate for personal expenses and religious ceremonies. If she desired to have her maintenance separately, she was to be paid Rs. 80. per month. If she desired to live in a separate house, then she was to be paid Rs. 100 per month. Aukshoy Kumar Ghosh died without any issue. So his wife was given the power to adopt. She wanted to adopt Sambhu Nath Ghosh, son of Rajendra Krishna Ghosh, the first cousin of her deceased husband. An agreement was entered into between Rajendra Krishna Ghosh who had also been appointed guardian of Sambhu Nath Ghosh by the Calcutta High Court and Smt. Charushila Dassi. This agreement was dated July 3, 1913, and the terms were sanctioned by the High Court by an order dated June 30, 1913. The substance of the agreement was as follows : (1) to take the affidavit of assets in her inventory filed by Charushila Dassi in the testamentary proceedings as correct and without question; (2) to deem the accumulations of income of the estate (up to that time) as her personal property ; (3) to declare that Charushila Dassi was to be entitled to the whole of the income of the estate subject to her maintaining the adopted son and defraying his marriage expenses; (4) to give her separate and suitable accommodation for residence in the family dwelling house ; (5) after Sambhu Nath attained majority, in case she desired to live separately, to pay her Rs. 30,000 for her residence, she having thereafter no further claim on the family for residence ; (6) Charushila Dassi to hand over the entire estate excluding her personal and stridhan property and the accumulation of the income during minority to Sambhu Nath on his attaining majority ; and (7) Charushila being entitled thereafter to a sum monthly of Rs. 2,000 for recovery of which she could get a receiver appointed in case it fell in arrears for three months.
(3.) On November 25, 1935, Charushila Dassi and the adopted son who was then known as Debi Prassanna Ghosh entered into an agreement so as to transfer the entire properties to Debi Prasanna. It will be necessary to mention some of the clauses of agreement. They are as follows: "19. And Whereas the said Debi Prasanna has requested the said Smt. Charushila Dassi as such administratrix as aforesaid to transfer unto him all the properties of the said estate now in her hands which are set out in Schedule 'A' hereunder after retaining in her hands such properties as could be sufficient to yield her a net income of the said monthly sum of Rs. 2,000 to be appropriated by her to her own absolute use and benefit in terms of the said agreement." "20. And Whereas it has been agreed by and between the parties that the said Smt, Charushila Dassi should retain in her hands during her lifetime the parcels of property set out in Part II of Schedule 'A' hereunder and should pay the municipal taxes and all other outgoings and also bear all costs of repairs of the said properties and should realise and receive the income thereof in full satisfaction of her monthly allowance of rupees two thousand without being accountable to the said Debi Prasanna Ghosh in respect of the income and expenditure in respect of these presents in any manner whatsoever and should transfer to the said Debi Prasanna Ghosh all other properties of the estate of Aukshoy Kumar Ghosh (deceased) which are set out in Part I of the said Schedule hereunder." "22. And it is hereby agreed and declared by and between the parties to these presents that the said Smt. Charushila Dassi shall during the term of her natural life retain in her hands and seize and possess all the parcels of property set out in Part III of Schedule 'A' hereunder and hold the said and will only be responsible for keeping the same in the same condition and the same state of repairs as the same now are subject to reasonable wear and tear and realise the rents, issues and profits thereof paying thereout the outgoings and expenses of management to be incurred by her and of necessary repairs and retain the surplus rents, issues and profits and appropriate the same to her own personal use and benefit absolutely and in full discharge of her right and claim to the said monthly sum of Rs. 2,000 without being accountable in any manner whatsoever to the said Debi Prasanna Ghosh in respect of the income and expenditure in respect of these properties. 23. And it is further declared by and between the parties hereto that the said Smt. Charushila Dassi shall have such right of residence as is provided for in Clauses 4, 5 and 6 of the said agreement and that the other clauses of the said agreement as and in so far as the same may still be applicable between the parties herein shall remain in full force and effect.";