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TMI Blog1961 (4) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... encing this fact. This adoption was challenged by rever may also be stated that the petitioner was a minor at the time of his adoption and the deceased, Lakshmi Devamma, adoptive mother, as guardian of the minor was looking after the petitioner and his properties till he became a major in 1953, in which year she made over the proper- ties to him and also transferred the houses which were in the name of her late husband. She has thus given charge of the estate of her late husband to her adopted son and demanded and obtained a maintenance of ₹ 200 per mensem which was paid by the petitioner till the date of her death on April 17, 1959. The Estate Duty Officer, Kurnool, issued a notice to the petitioner on November 4, 1959, under section 55 of the Estate Duty Act treating the petitioner as a person accountable for the estate duty of the deceased, Lakshmi Devamma. This notice is presumably under section 53 of the said Act. In answer to this notice, the petitioner submitted an application setting out the history of the family and his adoption sub- sequent to the death of Ramaiah Chetty and averred that the joint family property had vested in him from the date of the death ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration or other- wise. The deceased is the one person in the world with whom the donee may not have any association whatever. (c) There should be no benefit to the donor by contract or other- wise of whatsoever kind. The section looks not to the question of legal right but to the factual position. The sole question is one of fact--was the donor excluded? If she was not excluded, it is not relevant to ask why she was not excluded. The section permits: (a) the donee to retain the possession and enjoyment to the exclu- sion of possession and enjoyment of, or benefit to, any one, including the donor; (b) he may relinquish the possession and enjoyment but not to the donor; (c) he may retain the possession and enjoyment but may confer benefit but not on the donor. The legal position has been finally decided in Chick v. Commissioner of Stamp Duties [1958] A.C. 435; 37 I.T.R. (E.D.) 89, by the Judicial Committee of the Privy Council. In the instant case, Lakshmi Devamma who was the donor had enjoyed benefit from the property till her end. Therefore, even if you prove condition (a) above, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions in the light of the recent judgment of the Supreme Court in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta [1961] 41 I.T.R. 191 (S.C.)., where the majority and minority views were uniform on this matter. Das Gupta J., during the course of the majority judgment observed at page 207 as follows: Mr. Sastri next pointed out that at the stage when the Income-tax Officer issued the notices he was not acting judicially or quasi-judicially and so a writ of certiorari or prohibition cannot issue. It is well settled however that though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority autho- rity acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences. Shah J., who in a minority took a similar view, observed at page 217 as follows: If the conditions precedent do not exist, the jurisdiction of the High Court to issue h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on his death. 3. (1)(a) a person shall be deemed competent to dispose of property if he has such an estate or interest therein or such general power as would, if he were sui juris, enable him to dispose of the property. The taxing section attracts properties which pass on the death of a person. Apart from the property actually passing that property also is deemed to pass on his death, according to section 6 of the Act, which the deceased at the time of his death was competent to dispose of in accord- ance with the definition under section 3(1)(a), i.e., property in which he has an interest or such general power as would, if he were sui juris, have enabled him to dispose of it. The question, therefore, is whether Lakshmi Devamma had an estate or interest in the property which is sought to be made liable and which could be disposed of in her lifetime if she wanted. The competence of Lakshmi Devamma to deal with the subject-matter of this writ petition would have to be deter- mined according to principles of the Hindu law which are applicable to the parties. It is a well accepted principle of that law, whether in respect of coparcenary property or separate prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had restricted rights of transfer even apart from any adoption, the transfer would be valid only when they are supported by legal necessity. In my view it is unnecessary to consider any authorities on this point as the propositions are clear. It is equally well established that a widow, once she has adopted, has no right to alienate property of her deceased husband as under the law that property vests in the adopted son. In view of these clear principles of Hindu law, there is absolutely no doubt that after the adoption of the petitioner, the property has vested in him after the death of Ramaiah Chetty and the widow has no disposing power over the property on and from the date of adoption. The petitioner's statement that his mother was looking after cash and property during his minority is consistent with her looking after the property during the minority of the petitioner. She in fact handed over that property and also mutated her name in favour of the petitioner on the petitioner becoming a major. In so far as the estate of Ramaiah Chetty is concerned, which vested in the petitioner, it could not be said that this property is one which the widow was competent to d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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