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TMI Blog1983 (8) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... p his rights therein, those properties should be deemed to have passed on his death under section 9 of the Estate Duty Act ? " The factual backdrop giving rise to this question may now be noticed. One Desika Iyengar (deceased) had two brothers, Krishnaswamy Iyengar and Raghunatha Iyengar. Raghunatha Iyengar died in 1946 leaving behind him two sons. Desika Iyengar was employed in the (Central) Government and retired as an Assistant Commissioner of Excise. On March 7, 1956, Desika Iyengar (deceased), his brother, Krishnaswamy Iyengar, and his nephews, sons of Raghunatha Iyengar, divided their joint family properties under a deed and the properties set out in the A Schedule thereto were allotted to the share of Desika Iyengar. On March 30, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that Desika Iyengar had adopted him as far back as 1922, that the properties belonged to the HUF comprising of the deceased, Desika Iyengar, his wife and himself of which the deceased, Desika Iyengar, was the karta and that the deceased would have been entitled only to a half share which could be deemed to have passed on his death under s. 7 of the E.D. Act. Consistent with this, a revised account was also filed by the accountable person. The Assistant Controller of Estate Duty did not, however, accept the contentions raised by the accountable person. He held that the adoption of the accountable person by the deceased, Desika Iyengar, had not been established. After so holding, the Assistant Controller of Estate Duty determined the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties to the will, and that Desika Iyengar was not entitled to the properties set out in Schedules B, C and D and consequently, there was no question of his having relinquished or released his rights in those properties and, therefore, the inclusion of the value of those properties under s.9 of the E.D. Act was not in order. Accordingly, the Appellate Controller of Estate Duty directed the deletion of the value of B, C and D Schedule properties in the will of Lakshmi Ammal alias Thangammal. The accountable person as well as the Department went on further appeal to the Tribunal. The accountable person, in his appeal, reiterated before the Tribunal his adoption to the deceased, Desika lyengar, while the Department challenged the correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the will executed by Lakshmi Ammal alias Thangammal, a reference has been made to her deteriorating condition and her desire to make a provision with reference to her properties even during her lifetime with a view to avoid misunderstandings in relation to those properties after her death. Therefore, the bequests follow. Firstly, the testatrix had made a provision for her husband, Desika Iyengar, in that in the event of the testatrix predeceasing her husband, Desika Iyengar, Desika Iyengar, her husband, should enjoy during his lifetime the income from all the properties of the testatrix without powers of alienation, Then follows a further provision that Raghava Iyengar, son of Raghunatha Iyengar, the brother of Desika Iyengar, who has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hedule properties would also form part of the value of the estate in his case, the learned counsel for the accountable person would submit that on a construction of all the recitals in the will of Lakshmi Ammal alias Thangammal, the B, C and D Schedule properties were bequeathed absolutely to Chembaka Lakshmi Ammal, Raghunathan and Subramania Iyer, to be taken by them immediately after the death of the testatrix and, therefore, the deceased, Desika Iyengar, did not acquire any interest at all with reference to those properties and, hence, the subsequent execution of a release deed on April 10, 1968, was of no consequence. In the will executed by Lakshmi Ammal alias Thangammal, in the first portion thereof, the testatrix had no doubt state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights of the husband of the testatrix in those properties had been conferred on the legatees even during the lifetime of the husband of the testatrix. In other words, the bequest to the husband of the income from all the properties including B, C and D Schedule properties to be enjoyed by him during his lifetime without powers of alienation and the bequests in favour of other legatees with reference to B, C and D Schedules to take effect immediately after the death of the testatrix cannot stand together and are indeed irreconcilable. In such a situation, in accordance with the principle laid down in s. 88 of the Indian Succession Act, 1925, we hold that the earlier clause in the will of the testatrix by which her husband was given a r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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