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TMI Blog1969 (8) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... to the accountable person to produce necessary documents in support of the claim of the person concerned, but nothing was brought on record and, accordingly, assessment was finalised by the Assistant Controllor ex parte on the 19th of June, 1958. He held that the deceased Mahanth was not a mere trustee of the properties of the math as was alleged before him but was the sole proprietor thereof. He passed the order of assessment accordingly. The accountable person, Mahanth Umesh Narain Puri, preferred an appeal from the order of assessment before the Central Board of Revenue in which it was contended that Mahanth Surendra Nath Puri was merely a trustee of the properties of the math, hence no estate duty could be levied on the properties of the math ; or which the deceased was in charge. At the time of the hearing of the appeal, however, no document was produced in support of this contention. He applied for adjournment but that prayer was refused. From the materials on record, the Board came to the conclusion that the status of the mahanth was already declared by the District Judge of Gaya in Title Suit No. 1 of 1932. In that suit it was held that, according to the terms of the gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that estate duty is not chargeable in this case if it can be shown that the properties held by the deceased mahanth were trust properties, whether it was a public trust or a private trust. The finding of the Assistant Controller as also the Central Board of Revenue that the properties under consideration were the personal properties of the mahanth cannot be sustained even with reference to the document on which reliance was placed by them. His first contention is that the properties appertaining to Madra Math must be construed as public trust. All the relevant considerations with regard to the character of the math and the properties belonging to it were discussed in the judgment of the District Judge of Gaya in Title Suit No. 1 of 1932, under section 92 of the Code of Civil Procedure. That was a case in which the suit was brought by the plaintiff under section 92 of the Code of Civil Procedure for a declaration that neither of the two persons who claimed to act as mahanth of this math after the death of Mahanth Tokh Narain Puri, viz., Prem Narain Puri or Raghunath Puri, who was accepted to be a mahanth as a result of litigation between Prem Narain Puri and Raghunath Puri and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dealing with the properties by some of the holders of the office of the mahanth by way of alienation, different considerations might arise. As it is, however, the Board has proceeded upon the ground that the finding of the learned District Judge of Gaya could be taken to be conclusive for the purpose of determining the nature of the properties. That document, however, goes against the view that these properties were personal properties of the mahanth. If anything, while negativing the case of the plaintiff in that litigation that Madra Math was a public trust and while also negativing the case of the defendant that the properties were the personal properties of the mahanth, the learned District Judge also came to the following conclusion at page 17 of the paper book : "Even if I accept the translation of the plaintiffs, however, it does not help their case. All it means is that the property granted is to be inalienable. This condition is quite consistent with a grant creating a private trust in favour of the Math. It is not a necessary inference that the grant was intended to constitute a public trust." At page 19, it is further observed : "This agreement, however, is qui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to refer to several other decisions such as, Dwarkadas Bhimji v. Commissioner of Income-tax , Earl Cowley v. Commissioners of Inland Revenue and Suraj Mall Mohta Co. v. A. V. Viswanatha Sastri, in support of the contention that if no object of the trust was set out in the farman and no compellable duty were set out for performance by the donee that could not amount to a trust in the sense in which exemption could be demanded on behalf of the accountable person who would succeed to the office. Mr. Tarkeshwar Prasad has contended that if the properties were not personal properties of the mahanth as held by the learned District Judge, then in any case the Madra Math must be taken to be a private trust and even then, after the death of Mahanth Surendra Puri, or for the matter of that after the death of any mahanth, the question of the application of the Estate Duty Act cannot arise because there is no property that passes on the death of the mahanth to his successor. The present math is not even a mouroosi math where the seniormost chela of the deceased mahanth succeeds as a matter of course to the office of the mahanth, but it is a math where the electing system prevails and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice does his interest come into existence. Hence, it is clearly a case governed by section 23. Reliance has also been placed in support of it on the decision of the Madras High Court in S. C. Sreemanavikraman Raja v. Controller of Estate Duty, paragraph 44 of which lays down that in the case of a private trust the principles of estate duty cannot arise. In my opinion, the argument of Mr. Prasad is well founded. Apart from these two sections, attention may also be drawn to section 2 which defines "property passing on the death which alone would be excisable to estate duty under this Act and section 6. Section 6 stands thus : "6. Property within disposing capacity.-Property which the deceased was at the time of his death competent to dispose of shall he deemed to pass on his death." It is clear, therefore, that where the property in not within the disposing capacity of the deceased holder of an estate, no estate duty can be levied upon such property in the hands of any one who succeeds to such property. The learned District Judge of Gaya himself held that the properties belonging to Madra Madh were properties of a private trust and as such vested in the math and no mahanth had ..... 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