RAMANUJAM J.

The following common question of law has been referred to this court for opinion at the instance of the Revenue under s. 64(1) of the E.D. Act Whether, on the facts and in the circumstances of the case, only half of the property in question passed on the death of the deceased ?

One H.A.S. Abdul Razack Sait, who was a member of the Cutchi Memon sect of Mohamedans, died on October 10, 1968, leaving behind him five sons, namely, Abdul Sattar Sait, born on June 11, 1938, Khader Sait, Arif Sait, Bashir Sait and Farook Sait all born after 1938. In the estate duty proceedings, the accountable person claimed that the deceased's estate was governed by the Mitakshara law of succession and, therefore, only the cesser of interest of the deceased should be brought to charge, that the cesser of interest would be 1/6th of the value of the entire estate the deceased having five sons at the time of his death. The Asst. Controller: however, rejected the claim of the accountable person and brought to estate duty the value of the entire estate as free estate as he was of the view that as per the provisions of the Cutchi Memons Act, 1938, the privilege of the members of the Cutch