Judgment-

SABYASACHI MUKHARJI

( 1 ) LN this appeal by certificate granted by the High Court under Article 133 (1) of the Constitution against the judgment and order of the High Court of Gujarat dated 19/ 20/12/1973 in Estate Duty Reference No 2 of 1972 (reported in 1975 Tax LR 342), the question involved is regarding exemption from estate duty under section 29 of the Estate Duty Act 1953 (hereinafter called the act), which contemplates exemption from duty in case where estate duty has been paid on settled property on the death of one of the parties to a marriage.

( 2 ) THE appellant is the accountable person and he is related to the deceased Shri Kamlashankar Gopalshankar Bhachech as on of his grandsons. Deceased Kamlashanka Gopalshankar died on 25/10/1964 The deceased had a wife named Mahendraba Kamlashankar Bhachech. The deceased an his wife each possessed certain properties which were of their own individual ownership. They were also jointly possessed of certain properties including a bungalow known as dilhar Dwar - situated in the Ellisbridge area of Ahmedabad. The dispute in the reference out of which this appeal arose was with regard to estate duty leviable on 1/2 share of the wife of the deceased in the said bungalow and the land appertaining thereto.

( 3 ) ON 24th December, 1950, the decease and his wife had made a joint will in respect of the said bungalow. They also made separate wills with regard to their individually owned properties on the same date with which this appeal is not concerned.

( 4 ) THE aforesaid bungalow is situated on Plot No. 825 and appertaining to its main structure there are blocks bearing Nos. 48/2 to 48/6. In addition to the blocks, there is a garage, a bath room and two latrines as also some open compound land appertaining to the main structure. All these properties were disposed of by the joint will executed by the deceased and his wife. The relevant portion of the joint will is as under :-

"during our lifetime we shall continue to be joint owners of the land, bungalow and blocks with their common bath room and two prives including the garage bearing No. 48/1 and shall be jointly entitled to the rents and income of the said land and blocks and the user and rent of the bungalow. After the death of one of us, the survivor shall become the owner of the said land, bungalow and blocks including the garage No. 48/1 with the said bath room and privies and shall become entitled to the rents and income and user of the said land, bungalow and blocks including garage No. 48/1 and the bath room and privies. The provisions hereinafter contained shall become effective after the death of the survivor of us. After the death of the survivor of us, we hereby devise and bequeath our said furnished Bungalow including all things, articles, furniture, utensils, fixtures etc. together with the portion of the land and compound walls delineated on the plan hereto annexed and Coloured red and marked b to our grandson Dilharshankar Chintanvanshankar Bhachech. We hereby devise and bequeath our block Nos. , 48/2 to 48/6 including garage bearing No. 48/1 with the said bath room and privies together with the portion of the land and compound walls delineated on the plan hereto annexed and Coloured blue and marked c to our grandson Snehitshankar Chintavanshankar Bhachech. We hereby devise and bequeath the portion of the open land and the compound walls delineated on the plan hereto annexed and Coloured green and marked a to our grandson Hasitshankar Drupadshankar Bhachech. "

( 5 ) MAHENDRABA Kamlashankar Bhachech one of the executants of the joint will died on 3/01/1954. On the death of Mahendraba, estate duty on her share of the property which passed on her death to Kamlashankar Gopalshankar has been duly paid. This is an admitted position. Kamlashankar Gopalshankar died, thereafter, on 25/10/1964. Upon his death, the appellant cum accountable person cum sole executor and trustee paid estate duty to the remaining extent of 50