P. B. MUKHARJI, J.

( 1 ) THIS is a problem in Estate Duty, under the Estates Duty Act. The reference is made under Section 64 (1) of the Estate Duty Act by the Central Board of Direct Taxes and raises the following question to be answered by the Court:--"whether on the facts and in the circumstances of the case, the value of the house property No. 33 Apcar Garden, was correctly included in the principal value of the estate of the deceased, as property passing or deemed to pass on his death?"

( 2 ) THE property is a house property No. 33 Apcar Garden, Asansol. The title deed of this property, a copy of which has been produced by the Revenue Authorities and which is directed to be kept as part of the records of this proceeding, is an Indenture of Conveyance dated the 21st February, 1947. At the outset it must be said, this is not at all or by any means or by the remotest suggestion a Deed of Gift by the husband to the wife. This is a document of sale where the vendor Henry Earnest Cecil Grant of Asansol was selling this property to Begum Shamsun Nehar Mansur, This Deed of sale recites the consideration to be Rs. 20,000/ -. It also states clearly that the whole of this money or consideration of Rs. 20,000/- was paid "with her own money and for her own benefit and enjoyment" The husband Abul Mansur had nothing to do with this document, either its purchase or its execution or as an attesting witness or even as any confirming or other party to this deed.

( 3 ) THE whole question or controversy in this case is, did this property form part of the estate of the deceased Abul Mansur, the husband of the wife. Abul Mansur, the husband died on the 11th April, 1959, that is a period of twelve years after this conveyance.

( 4 ) THE accountable person in these proceedings was this wife Mrs. Shamsun Nehar Mansur, widow of Abul Mansur.

( 5 ) LOOKING at this Deed of conveyance the only material document for this purpose, one should have thought that the simple answer to the question asked would be in the negative because such a property could not be regarded as property passing or deemed to pass on the death of Abul Mansur on a plain reference to Section 6 of the Estate Duty Act which provides, "property which the deceased was at the time of his death competent to dispose of shall be deemed to pass on his death". Obviously the property under this Deed of sale by Henry Earnest Cecil Grant to Mrs. Shamsun Nehar could not pass on the death of Abul Mansur because he could not dispose of this property as such, the registered title deed being in favour of Mrs. Shamsun Nehar.

( 6 ) BUT this simple question has been beset with many circumstances of difficulty, both factual and legal in this case. We therefore will have to consider these problems. The Assistant Controller of Estate Duty makes the following observations in his assessment order dated the 7th March, 1960:--"the title deed of the property wag produced. It is seen that the property was purchased on 21-2-47 for Rs. 20,000/-in the name of the deceased's wife. On enquiry, it is found that the property was used as his dwelling house by the deceased till the date of death. I am, therefore, unable to accept the accountable person's contention that the deceased had no beneficial interest in the property. It is also not denied that the deceased provided the purchase consideration. Thus, it is clear that the deceased was the real owner and the only conveyance was taken in the name of his wife. Even though it is assumed that the deceased made a gift of purchase consideration, it is evident that he was not entirely excluded from bona fide possession and enjoyment of the property or benefit therefrom. Hence, I include this property within the estate of the deceased. "

( 7 ) TWO points are clear from this order. One is that the title deed did not show that the purchase was "in the name of the deceased's wife". The title deed does not show that it was a name lend-big transaction at all. It is, therefo

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