CONTROLLER OF ESTATE DUTY Vs. PARMJIT SINGH

JUDGEMENT

(1.) THIS order will dispose of ED References No. 2 and 3 of 1978. The said cross-references arise out of the application of CED, Julundur and that of the accountable person.

(2.) THE brief giving rise to these references are that Gurgopal Singh died on 21st Sept., 1971. Gurgopal Singh had three sons, namely, Parmijit Singh, Tejinderpal Singh and Amritpal Singh. He also left a widow Amarjit Kaur. On 5th April, 1971, Parmijit Singh, Tejinderpal Singh and Amritpal Singh filed a suit for declaration that the plaintiffs are the owners in possestion of land described in the plaint in village Chak Hussaina Lamba Pind and residential quarter and farm houses in Tehsil and District Jullundur, as entered in the Jamabandi of the relevant year. The plaintiffs claim that they are sons of defendant Gurgopal Singh and were members of the Jointt Hindu Family wa admitted by Gurgopal Singh. It was averred that the joint family was allotted land in lieu of the land left in Pakistan, in village Chak Hussaina Lamba Pind, the subject matter of the suit and also land in Basti Shah Semi, Tehsil and District Jullundur. As the land stood in the name of the head of the family, Gurgopal Singh, the same was allotted in his name. Any how, in recognition of the rights of the plaintiffs the defendant Gurgopal Singh had retained all the land excepting the suit land and the suit land was given in possession and exclusive ownership of the three sons. But since in the revenue records the land stood in the name of the defendant who threatened the plaintiffs that he would transfer the suit land, therefore, the plaintiffs filed the suit. Gurgopal Singh admitted the averments made in the plaint and consequently Sub Judge 1st Class. Jullunder passed a decree on 27th April, 1971, declaring the plaintiffs as owners in possession of the land described in the plaint. it may be noticed that this decree was passed before the death of Gurgopal Singh. On the basis of the above mentioned facts, it was pleaded by the accountable person that the land in village Chak Hussaina Lamba Pind which stood transferred to the sons of Gurgopal Singh by way of partition, could not be made subject matter of estate duty. However, the Asstt. Contr. did not accept this contention and held that the deceased was an agriculturist who was governed by customary laws and the concept of coparcenary property was alien. However, on an appeal filed by the accountable person the Appl. CED remanded the case to Asst. Contr. and directed that enquiry be made whether the property in question constituted ancestral property in the hand of Gurgopal Singh. On remand, the Asst. Contr. held that the property was ancestral but the fact of partition of the HUF was unsustainable and that the status of the family was HUF. This view was upheld by the Appl. Contr. and consequently revenue and the accountable person filed cross appeals to the Tribunal. The Tribunal dismissed the contention of the revenue on the question of status of the family as HUF following the decision of the Full Bench of this Court in Pritam Singh vs. Asstt. CED (1976) CTR (P&H) 201 : 103 ITR 661. As regards the contention of the accountable person, the Tribunal rejected the contention and held as follows :

(3.) AS regards the second question, we are unable to sustain the findings of the Tribunal that by reading the plaint, the judgment and decree reference to which has earlier been made, it cannot be construed that there was partition between coparceners. The Tribunal itself recorded a finding that since the deceased had three sons and a living widow, therefore, on his death share to the extent of 1/5th in the property passed to the heirs of the deceased. It is, therefore, found as a fact, that the deceased had only 1/5th share in the coparcenary property. It cannot be disputed that the judgment and decree of the Civil Court is binding on the parties inter-se However, if the said judgment and decree results into disposition of property which includes any interest in the property of the deceased and if the said disposition is within two years of the death of the deceased, in that case the prop death of the deceased, in that case the property which is the subject matter of disposition will be liable for estate duty. This is the effect of the combined reading of the provisions of ss. 2(15), 9 and 27 of the ED Act, 1953. With a view to appreciate the legal position, it has to be first found out whether the three sons of the deceased and the deceased partitioned the property, as has been contended by the ld. counsel for the accountable person. It is well settled that true meaning of the contents of a document can only be given if the document is read as a whole. A reading of the plaint would clearly suggest that according to the averments made in the plaint, which averments were admitted to be correct in the written statement filed by Gurgopal Singh, that the property which was ancestral stood in the name of Gurgopal Singh and that the defendant in recognition of the rights of the plaintiffs gave the whole land and residential quarters and farm houses in Chak Hussaina Lamba Pind to the plaintiffs whereas he had retained all other land with himself. It cannot be disputed that the three sons who were coparceners were entitled to get share in the coparcenary property on partition. It is no doubt true that the word 'partition' has not been used in the plaint but the reading of the plaint as a whole leaves no doubt in our mind that the arrangement regarding which averments have been made in the plaint, was the consequence of a partition in which the three sons of Gurgopal Singh were given land, quarters and farm houses at Chak Hussaina Lamba Pind whereas Gurgopal Singh retained the other property with him.