CONTROLLER OF ESTATE DUTY Vs. RADHAKRISHNAN K

JUDGEMENT

(1.) This Income Tax Reference Case is coming up for decision before us at the instance of the Controller of Estate Duty, Kerala. The respondent herein is the accountable person. The question referred to us for decision is as follows "Whether, on the facts and in the circumstances of the cas3, the property which passed on the death of the deceased belonged to the joint family or whether it belonged to the individual.

(2.) The short facts leading to the present reference are as follows: Deceased S. Kumaraswamy Reddiar had left a Will dated 22nd September 1967, original of which was framed in Tamil. Till the execution of the Will the properties were treated as self acquisitions of the deceased. In the said Will deceased seated that he with his two sons were members of Joint Hindu Undivided Family and the properties were being treated as the properties of the H.U.F. The Will further provides that the deceased would be the Manager of the joint properties, that his daughters would not have any share over those assets and that he was giving certain bequests to his daughters inlaw and grand daughter. After the execution of the Will, Kumaraswamy Reddiar died on 10th June 1968. Subsequently the Will was probated. The respondent claimed that by virtue of the declaration contained in the Will properties belonged to H.U.F. and therefore one - third of the properties alone would pass on the death. However, the above claim was rejected by the Assistant Controller of Estate Duty. According to him, till the death of Kumaraswami Reddiar, he was treating his properties as his individual properties. On appeal the Appellate Controller of Estate Duty placing reliance on the decision of the Madras High Court in Commissioner of Income Tax v. A.R. Sahasranaman. 97 ITR 511 accepted the claim of the accountable person. He held that a declaration that the individual property belonged to H.U.F. and impressed the property with the H.U.F. character could be made in a Will. As against this order both the Department and the accountable person filed appeals before the Tribunal. After detailed consideration, both the appeals were dismissed by the Tribunal. In the appeal filed by the Department the Tribunal confirmed the order of the Appellate Controller and thus agreed with the claim of the accountable person. At the instance of the Department the question of law now raised came up for consideration before this court in I.T.R. No. 203 of 1987. However, at that stage this court refused to answer the question and directed the Tribunal to forward proper statement of the case annexing a copy of the original Will (Tamil) and also a true translation thereof in English. In compliance of the direction the Tribunal forwarded fresh statement of case on 30th May 1991. Along with the present statement of the case though the copy of the Will dated 22nd September 1967 executed in Tamil is shown as Annexure - A it is not seen annexed with it. Therefore this court by order dated 14th July 1997 directed the Tribunal to forward the original file along with the original of Annexure A in Tamil. Accordingly the original case file is made available before this court for our examination.

(3.) Annexure B produced along with the statement of facts is the copy of the Will translated, in English. The relevant portion of the said Will is extracted below: