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TMI Blog1971 (7) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of Rs. 80,000 standing in the names of the grand-children of the deceased was correctly included in his estate This reference arises out of proceedings in connection with the estate duty assessment in respect of the estate of late L. Kedar Nath, who died on the 8th of September 1955. Sri Vithal Das, the eldest son of the deceased, filed the estate duty return in respect of the properties left by Kedar Nath, as accountable person under the Act. He showed the value of the estate left by the deceased as Rs. 1,57,764. The Assistant Controller of Estate Duty, however, computed the value of the estate as Rs. 3,09,972 and levied the estate duty accordingly. During the assessment proceedings, it was claimed that the deceased had only half share in certain properties. The other half share in those properties belonged to his wife, Smt. Godawari Devi. According to the accountable person, these properties originally belonged to a joint Hindu family having five branches. The deceased was the head of one of the branches, which consisted of himself, his wife and two sons. A partition in the family took place in the year 1936. At that time, the deceased and his two sons also separated. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roller that the aforesaid gifts were made by the book entries and were accepted on behalf of the minors by their respective fathers. These sums were later on withdrawn from the books of Messrs. Girdhari Lal Kedar Nath Tanda and got credited in the books of Bhawani Prasad Girdhari Lal Hatia, Kanpur, where the deceased was riot a partner. The latter firm paid interest to the minors on the amount standing in their names. The Assistant Controller found that the transfer of accounts from the books of Girdhari Lal Kedar Nath, Tanda, to the books of Messrs. Bhawani Prasad Girdhari Lal, Kanpur, took place on 3rd November, 1953. At that time the amount was transferred only by making book entries and no cash passed from the Tanda firm to the Kanpur firm. It was only on 4th of August, 1955, that for the first time an amount of Rs. 6,000 was remitted from Tanda to Kanpur. This was followed by remittances amounting to Rs. 20,000, Rs. 12,000 and Rs. 25,000 made on 16th of August, 1955, 5th September, 1955, and 6th September, 1955, respectively. According to the Assistant Controller, neither the transfer entries made in the books of the two firms, nor the remittances of cash had the effect of val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to Rs. 52,000 was remitted by the Tanda firm to the Kanpur firm up to the date of the death of the deceased. The Board concluded that the signatures underneath the debit and the credit entries in the books of the Tanda firm were appended afterwards so as to create evidence indicating acceptance of the gift. In the circumstances, even if the deceased wanted to make a gift of the money to his grand-children on 9th of May, 1952, the gift was incomplete and invalid and, therefore, the money credited to the account of the grandchildren must be taken to belong to the deceased and deemed to pass on his death on 8th of September, 1955. The Assistant Controller was, therefore, justified in including this amount in the value of the asset of the deceased liable for payment of estate duty. The accountable person then moved an application to the Board for stating the case in respect of five questions and eventually the Board referred the two questions mentioned above for the opinion of this court. Our answer to the first question will depend upon the fact whether as a result of the partition effected in the family of Sri Kedar Nath in the year 1936, his wife became the owner of any share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s decision, the proposition that the Hindu mother is entitled to a share on partition was not well-known, and, therefore, non-assertion of her right by the mother during the previous partition did not amount to acquiescence or relinquishment of any right. Relying on the aforesaid authorities, learned counsel for the accountable person argued that when the deceased, Kedar Nath, and his two sons divided the family property in the year 1936, Smt. Godawari Devi, wife of L. Kedar Nath, became the owner of the joint family property to the extent of the share equal to that of a son. Even though she did not claim a share in the property at that time it did not mean that she acquiesced in the partition or gave up her rights. She continued to own that share and could enforce it by getting the partition reopened. In the circumstances, the properties allotted to L. Kedar Nath also included the property belonging to Smt. Godawari Devi and to that extent the property did not pass to any one as a result of Sri Kedar Nath's death. Another controversy raised in this connection was about the extent of share which Smt. Godawari Devi had in the property which was allotted to L. Kedar Nath. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tus of the family. She becomes entitled to a share only when the members of a joint family divide the family asset between themselves by metes and bounds. A Division Bench of the Nagpur High Court had an occasion to consider this question in the case of Mst. Bhiwara v. Mst. Renuka . While dealing with this questions the learned judges observed as follows : According to their Lordships of the Privy Council the 'share' which is allotted to the mother on partition is not a share " in the true sense but only a provision for maintenance. (See Debi Mangal Prasad v. Mahadeo Prasad ). Accordingly, she gets no 'ownership' in it till it is actually handed over to her and she is placed in a position to maintain herself out of it, and then her ownership is limited ownership of a Hindu female holding for maintenance: see Pratapmull v. Dhanbati Bibi . Therefore, she cannot question dealings with the estate till she receives actual possession. In our opinion that means that she does riot get a true share. It follows that the 'shares' of the male members of the family are neither diminished nor enlarged by the existence or non-existence of these particular females. Their true share is the on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death under, section 7 of the Act. So far as the second question is concerned, the Case of the accountable person is that the gift of Rs. 80,000 was effected by debiting the account of the deceased in the firm of Girdhari Lal Kedar Nath, opening accounts in the names of grand-children in the books of the firm and crediting them with the sum gifted. This was done under instructions from the deceased. The entry in the account book itself states that it was being made under instructions from the deceased as gift to the grand-children. The debit entry has been signed by the deceased. The amount said to have been gifted to the grand-children was subsequently transferred from the firm, Girdhari'Lal Kedar Nath, to the firm, Bhawani Prasad Girdhari Lal of Kanpur. This transfer was also effected by making corresponding credit and debit entries in the books of the two firms. The Appellate Tribunal came to the conclusion that the signature underrneath the debit entries in the account of the deceased as also those of the guardians of the minors underneath the account of the minors were made subsequently in order to create evidence for showing the acceptance of the gift. There can be no doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transfer of Property Act requires that for transferring an actionable claim there must be an instrument in writing signed by the transferor. Learned counsel for the revenue urges that the entries made in the account books of the firm and signed by the transferor do not constitute an instrument in writing as contemplated by section 130 of the Transfer of Property Act. In the case of Seetharama Ayyar v. Narayanaswami Pillai a Division Bench of the Madras High Court took the view that the words " instrument in writing " in section 130 of the Transfer of Property Act do not mean a document couched in technical language or in any particular form. What is intended is that the transfer should be made in writing and it is sufficient if the intention of the creditor to transfer the debt due to him to the transferee can be gathered from the writing. The fact that an assignment is made in a statement of account by way of any entry would not make any difference. We are, therefore, of opinion that the debit entries made in the account books of the deceased together with the signatures, sufficiently comply with the provisions of section 130 of the Transfer of Property Act and the amount stands ..... X X X X Extracts X X X X X X X X Extracts X X X X
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