CONTROLLER OF ESTATE DUTY Vs. ABDUL SATTAR SAIT

JUDGEMENT

(1.) THE following common question of law has been referred to this Court for opinion at the instance of the Revenue under S. 64(1) of the E. D. Act:

(2.) ON appeal before the Appellate CED it was contended by the accountable person that Abdul Sattar Sait had 50per cent interest in the joint family estate as soon as he was born and that, therefore, only the value of the remaining half of the properties should have been subjected to estate duty.

(3.) AGAINST the order of the Appellate CED, both the Revenue and the accountable person filed appeals before the Tribunal. On behalf of the Revenue it was contended that the accountable person was governed by the Mahomedan law under the provisions of the Cutchi Memons Act, 1938, that though the first son, Adbul Sattar Sait, had a right by birth in respect of half share of the estate, yet so long as a partition had not taken place before the commencement of the Act, his right by birth vanished after the introduction of the Shariat Act of 1937, that thereafter the accountable persons were governed only by the Mahomedan law and not by the Hindu law of succession and inheritance, that Abdul Sattar Sait could not have claimed even 1/6th share in the deceased's property at the time of the latter's death, that there could not be a notional partition when four of the sons of the deceased were born after the introduction of the Cutchi Memons Act as they had no right by birth and that the deceased could not have willed away his properties to the exclusion of his four sons as it was opposed to the Mahomedan law, that the right by birth of Abdul Sattar Sait became useless consequent upon the absence of partition before the Act came into force and by reason of the subsequent birth of male issues in the family, that though Abdul Sattar Sait was governed by the Hindu law at the time of his birth, the Muslim personal law became applicable to him after the coming into force of the Cutchi Memons Act, 1938, that under the provisions of the Act the Muslim personal law was applicable at the time when the deceased died and that, therefore, the entire estate passed on the death of the deceased in this case. It was further contended by the Revenue that under the Shariat Act of 1937, Abdul Sattar Sait succeeded to the property of the deceased only in accordance with the Mahomedan law and that the right that was preserved under S. 3 of the Cutchi Memons Act, 1938, was only the right to partition.