The main legal point established in the judgment is that the intention of the deceased, as reflected in the will, and the recitals contained therein, determined the character of the properties as joint family properties.

P.A. Mohammed, J.

1. This estate duty reference case is coming up for decision before us at the instance of the Controller of Estate Duty, Ker-ala. The respondent herein is the accountable person. The question referred to us for decision is as follows :

"Whether, on the facts and in the circumstances of the case, the property which passed on the death of the deceased belonged to the joint family or whether it belonged to the individual ?"

2. The short facts leading to the present reference are as follows : The deceased, S. Kumaraswamy Reddiar, had left a will dated September 22, 1967, the original of which was framed in Tamil. Till the execution of the will, the properties were treated as self-acquisitions of the deceased. In the said will, the deceased stated that he with his two sons were members of the joint Hindu undivided family and the properties were being treated as the properties of the Hindu undivided family. The will further provides that the deceased would be the manager of the joint properties, that his daughters would not have any share over those assets and that he was giving certain bequests to his daughters-in-law and granddaughter. After the execution of the will, Kumaraswamy Reddiar died on June 10, 1968. Subsequently, the will was probated. The respondent claimed that by virtue of the declaration contained in the will, the properties belonged to the Hindu undivided family and, therefore, one-third of the properties alone would pass on the death. However, the above claim was rejected by the Assistant Controller of Estate Duty. According to him, till the death of Kumaraswamy Reddiar, he was treating his properties as his individual properties. On appeal, the Appellate Controller of Estate Duty placing reliance on the decision of the Madras High Court in CIT v. A R. Sahasmnamam 19741 97 ITR 511 accepted the claim of the accountable person. He held that a declaration that the individual property belonged to the Hindu undivided family and impressing the property with the Hindu undivided family character could be made in a will. As against this order both the Department and the accountable person filed appeals before the Tribunal. After detailed consideration, both the appeals were dismissed by the Tribunal. In the appeal filed by the Department, the Tribunal confirmed the order of the Appellate Controller and thus agreed with the claim of the accountable person. At the instance of the Department, the question of law now raised came up for consideration before this court in I. T. R. No. 203 of 1987. However, at that stage, this court refused to answer the question and directed the Tribunal to for- ward a proper statement of the case annexing a copy of the original will (Tamil) and also a true translation thereof in English. In compliance with the direction, the Tribunal forwarded a fresh statement of case on May 30, 1991. Along with the present statement of the case though the copy of the will dated September 22, 1967, executed in Tamil is shown as annexure-A, it is not seen annexed with it. Therefore, this court by order dated July 14, 1997, directed the Tribunal to forward the original file along with the original of annexure-A in Tamil. Accordingly, the original case file is made available before this court for our examination.

3. Annexure-B produced along with the statement of facts is the copy of the will translated in English. The relevant portion of the said will is extracted below :

"I am writing this will as I am frequently indisposed. With the blessings and help of my elder sister, P. K. Muthammal, I started a piece-goods business at Alleppey and on account of the prosperity and profits and due to my own efforts and industry I had acquired assets including immovable properties, have constructed therein buildings and I am enjoying the income therefrom as well. I have bequeathed by registered document on the 15th day of September One thousand nine hundred and sixty six the building at Alwaye to Kamalam