Banerjee, J. - (1.) THIS reference, under Sec. 64(1) of the Estate Duty Act, has been made in circumstances hereinafter stated.
(2.) ONE Bhupendra Nath Mukherjee died intestate on December 27, 1955. During his life, on June 16, 1916, Bhupendra executed a deed of gift, in the Bengali language, in favour of his eldest son, Panchanan Mukhopadhyaya. The English translation of the material portion of the deed reads as follows : "You are my eldest son and by virtue of succession after my death you are entitled to have a share of all those movable and immovable properties in which I have right, title, and interest and possession. With a view to preventing troubles, quarrels and litigations and also for avoiding various difficulties amongst my sons regarding settlement and preservation of the joint properties after my death, before demarcating to each of my heirs all the movable and immovable properties separately through a will or by deeds of settlement I desire to demarcate and give to you the two of my properties amongst other properties mentioned hereunder. In order, however, to remove any obstacle arising out of unforeseen causes to give the same to you through will or otherwise by or under this deed of gift I give the said two properties to you by this deed of gift subject to the following conditions. In the said two properties none of my sons and heirs shall have any right title or interest and I shall not have any interest right or power to give the same to anyone else. But as you are young in age and are not experienced in property matters and because you are not in need to spending much money I give, in gift, to you the following properties subject to the following conditions, that is to say, that, so long as I shall be alive, the said properties shall be in my possession as your trustee and I shall help you according to my discretion. You shall be able to take possession of the pucca house in property No. 2 occasionally complete possession and right will vest in you with respect to the said two properties.
(3.) PANCHANAN Mukhopadhyaya predeceased his father, sometime in the year 1930, leaving his son Sitanath Mukherjee, who is one of the accountable person before us. On the death of Bhupendra, Provash Chandra Mukherjee, one of the sons of Bhupendra, Mukherjee, the son of late Panchanan Mukherjee, were assessed, under the Estate Duty Act, 1953, as accountable person. The Assistant Controller of Estate Duty included the value of the properties covered by the deed of gift, referred to above, in the principal value of the estate of the deceased, proceeding on the basis of Sec. 10 of the Estate Duty Act. The value of the properties covered by the deed of gift was taken to be Rs. 2,00,000. Sitanath, thereupon, field an appeal before the central board of Revenue, to which the appeal lay under the law as it then stood. He objection to the inclusion of the value of the properties covered by the deed of gift in the principal value of the estate of the deceased, inter alia, on the following grounds. (a) That there was a valid and complete gift made by the deceased more than two years before his death; (b) That the deceased continued to hold the gifted property merely as a trustee and since possession and enjoyment by trustee was possession and enjoyment of the beneficiaries, the properties could not pass or be deemed to pass on the death of the deceased; (c) That was a donor keeps back is not a gift and in this case the fact that the right to enjoyment of the gifted properties was not immediately given over by the deceased to his son, only meant that this was something which the deceased did not then purport to give and which should be ignored for purpose of liability under Sec. 10 of the Act. ;