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TMI Blog1974 (11) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... o her female descendants and in default of such heirs also, to her husband, Sethu Chetty, and his descendants. Sethu Chetty died on October 28, 1919, and Seshammal died in the year 1938. The writ-petitioner, who is the respondent herein, was adopted by Ramathilakam on October 10, 1953. On the death of Ramathilakam on November 4, 1962, the respondent as the accountable person filed a return under the Estate Duty Act, 1953, in which he had disclosed that the principal value of the estate of Ramathilakam was Rs. 44,560 but contended that that was not liable for any estate duty on the ground that on his adoption on September 10, 1953, the properties had been vested in him and there was no passing of any property consequent upon the death of Ramathilakam. Apart from filing the return and producing the judgment of this court in A.S. No. 80 of 1960, the respondent did not appear before the Assistant Controller of Estate Duty in order to substantiate his legal contention. After considering the objections raised by the accountable person, the assessing officer was of the view that the estate duty was leviable under section 7. He further considered that the principal value given by the accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iar under the provisions of the will. In the appeal against the decree in O. S. No. 13 of 1958 a Division Bench of this court in A.S. No. 80 of 1960 held that the adoption was legally and validly made by Ramathilakam. It was argued before the Bench that even if the adoption was valid, it should be declared that the adopted son could not be a legatee under the will of Gopalasami Chettiar. This court considered that the adopted son occupied a two-fold position with reference to Gopalasami Chettiar, one as the adopted son of Ramathilakam, the daughter of Gopalasami Chettiar, and the other is the adopted son of Sethu Chetty. Under the will the estate was directed to be taken after the lifetime of Ramathilakam by the 'putra pouthrathi santhathi' and failing that by her female children and failing that also it would go to Sethu Chetty and his descendants. The Division Bench held that this expression, putra Pouthrathi santhathi, in the context in which it was used would not include the adopted son and that, therefore, as the adopted son of Ramathilakam he could not take the bequest under the will. They then went on to consider the question as to whether the adopted son would take the esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been entitled to take possession of the estate and enjoy the income therefrom. Though Sethu Shetty died during the lifetime of Ramathilakam, by reason of the adoption and the adoption taking effect under the Hindu Law from the date of death of Sethu Chetty, the adopted son becomes entitled to take possession of the estate on the death of Ramathilakam. There was, therefore, clearly a passing of the property on the death of Ramathilakam which would attract the provisions of section 5 of the Estate Duty Act. A similar view was taken in Baidyanath Banerjee v. Assistant Controller of Estate Duty. The facts of that case, as summarised in the head note, are as follows: One Narendra Nath Banerjee died in 1930, leaving a will by which he bequeathed a life estate in respect of certain items of property to his wife, Sudhir Bala, and an absolute estate in such property on her death to the accountable person and his brothers. Sudhir Bala died in 1960 and in proceedings for the recovery of estate duty on her death the accountable person contended that there was only a change of possession and no passing of property on the death of Sudhir Bala and no estate duty was payable. It was held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of death of Sethu Chetty and the adoption; but it will have no effect on any interest which was not vested in Sethu Chetty or that had to devolve subsequent to his death. Bearing these principles in mind, let us consider the decisions cited by the learned counsel for the respondent. Erram Reddy Chenchu Krishnamma v. Maram Reddy Lakshminarayana was a case where a Hindu by his will left his properties to his widow absolutely and also gave her authority to adopt and the widow in pursuance of such authority made an adoption subsequent to the death of the Hindu. It was held that since the adoption dates back to the date of the death of the Hindu, the widow could not have derived any interest in the properties under the will. This was for the reason that an adopted son becomes a coparcener with the deceased and since the adoption dates back to the date of death, the deceased becomes incompetent to dispose of the property by will. It may be seen from this case that the decision related to the property of the deceased who is an adoptive father and not any property which belonged to a third party. In Sukhdevdoss Ramprasad v. Mt. Choti Bai it was held that the adoption would have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the adopted son was a coparcener. We do not find, therefore, any relevance of this decision on the facts of this case. The decision in Yelukuru Satyanarayana v. Assistant Controller of Estate Duty also related to a case where the estate was that of the adoptive father and the question for consideration was the applicability of section 6 which related to the competence of the deceased to dispose of the property. That question does not arise for consideration here as the revenue did not rely on section 6. Dwaraka Prasad v. Controller of Estate Duty was a case similar to Yelukuru Satyanarayana v. Assistant Controller of Estate Duty and has no application to the present case. We must observe that the decision of the learned judge under appeal proceeded on the assumption that the adopted son was not a legatee under the will and that Sethu Chetty, the adoptive father, had already inherited the entire estate of Gopalasami Chettiar even before the death of Ramathilakam. But we have already pointed out that the Division Bench of this court held in A.S. No. 80 of 1960 that the adopted son could inherit the estate of Gopalasami Chettiar under his will though he might not have come unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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