- (1.) THIS reference, under section 94 (l) of the Estate Duty Act 1953,relates to two immovable properties settled in trust for pious purposes by sri Chimanlal Bhartia, since deceased. The deed of trust dated 22nd January, 1949, executed by him, reads, inter alia, as follows :- "whereas the settler is absolutely seized and possessed of or otherwise well and sufficiently entitled to all those messages, tenements. house, land here determents and premises situate, lying at and being premises No. 32 and 32/1, Upper circular Road, in the town of Calcutta fully described in the Schedule hereunder as estate of inheritance in fee simple in possession or an estate equivalent thereto free from encumbrances. . . . . . . . . . . . . . . . Now this Indenture witnessed as follows:-1. "that in effectuating his said desire the Settler as beneficial owner hereby grants, transfers and conveys unto the trustee all that; the messuage, tenements and houses situate, lying at and being premises Nos. 32 and 32/1, circular Road (7/1, 7/2, Hyat Khan lane) in the town of Calcutta fully described in the schedule here under written (hereinafter referred to as the trust properties) together with all buildings, outhouses, erections, fixture, courtyard, drain, ways, passage light, liberties easements and appurtenances to the same belonging or appertaining and all the estate right title interest claim and demand of the settler therein or thereto. . . . . . . . . . 10. It shall always be lawful for the Settler at any time or times or from time to time during his life time, and he hereby reserves to himself its absolute power by any deed or deeds under the hands and seal of the Settlor absolutely to revoke make void or alter or vary the trust declared by these presents of and concerning the said trust properties. " Though Chimanlal was the karta of a Mitakshara joint family consisting of himself and his adopted son Baijnath at the time of execution of this deed, it is nowhere stated in this deed nor does it show that it was executed by him as the karta of the said family. The said joint family came to an end on March 26, 1950 by partition between chimanlal and Baijnath. The settled properties were not included in the said partition, for the trust was not revoked by Chimanlal during his life time. On June 27, 1958, Chimanlal varied certain objects of the trust with which we are not concerned in this reference.
(2.) PRIOR to its disruption the joint family was assessed to income-tax in the status of a Hindu Undivided Family. From the assessment year 1952-53 and until his death, which took please on january 24, 1961, Chimanlal was assessed to income-tax as an individual. On his death, his half share in the settled properties has been included in his estate for the purpose of assessment under the Act by the Assistant controller of Estate Duties. The Appellate authorities have dismissed the appeals filed by the accountable person. The appellate Tribunal has rejected the contentions of the accountable person in the following terms :- "it was also urged that Section 12 would not have any application with reference to a document executed by the karta of a joint family which is the settler and not Sri chimanlal, the deceased. The language of Section 12 appears to us to make no difference between the settlement made by the karta in his capacity as such or as an individual. An H. U. F. has to act through the human agency which is the karta. In such a case, the settlement has to be taken as have been made by Sri Chimanlal himself. Chimanlal could not have disclaimed the authorship. Though he executed the document in his capacity as a karta, still as far Section 12 is concerned, the settlement has been made by him. This is a case where the property has passed under a settlement made by the deceased by a deed. The capacity in which he made the. deed does not appear to - be relevant. The language of section 12 is apt to cover a case like this. " Thereafter, the Tribunal has referred the following question to this court : "whether, on the facts and in the circumstances of the case and on a proper interpretation of Annexure A and B and of section 12 of the Estate Duty Act, the half share of the value of the premises nos. 32 and 32/1, Upper Circular road, Calcutta was liable to be included in the estate of the deceased for the purpose of assessment under the Estate Duty?"
(3.) THE learned Counsel Mr. Pranab pal, appearing for the accountable person, has made the following submissions before us: the settled properties were the coparcenary properties alt the time of their settlement and therefore Chimanlal was not the full owner of these properties ; this trust was made by the joint family through its karta chimanlal; section 12 (1) of the Act contemplates a settlement made by the full owner of the settled property; such owner must be a natural person. and not an artificial person in view of the word "deceased" used in this section ; a karta of a joint family is an artificial person ; and therefore for all these reasons the second limb of section 12 (1) of the Act does not apply in the present case.;