A document, though styled as a gift deed, which is not inter vivos in favor of the alleged donee so in whose favor a future vesting of the vested remainder is sought to take effect on a future date after the gift of life interest in favor of the present donee is created, the document can only be a will and not a gift deed.

Fakkir Mohammed, J.

1. The reference has been made by the Income-tax Tribunal, Madras, at the instance of the assessee under s. 26 of the G.T.Act, 1958. The question that is referred is as follows :

"Whether the assessee had made a gift of the properties in favour of his daughter and grandchildren under the deed February 11, 1969 ?"

2. The assessee executed a registered document on February 11, 1969, in favour of his wife, styling it as a settlement deed in respect of 18 items of properties, which belonged to him. In the said document, he has granted a life estate without any power of alienation in favour of his wife jointly with himself, and the latter shall enjoy the properties described therein, in the event of he pre-deceasing his wife. He has further provided in the document that his grand-daughter, Priavathi, grandson, Jayaprakasan, and his daughter, Seethalakshmi Ammal, should take their respective items of properties marked for them as their absolute properties after the lifetime of himself and his wife. Earlier to that, he had executed two gift deeds on January 29, 1969 four gift deeds on January 30, 1969, two gift deeds on February 1, 1969, and two gift deeds on February 2, 1969, in respect of his other immovable properties in favour of Bhavani Subbulakshmi, Janardhanan, Selvarani, Seethalakshmi and Devagi Ammal, who are the grandchildren and daughters of the assessee.

3. Coming to know of the above gifts, the GTO issued a notice to the assessee requiring him to file a return of all the gift made by him during the previous year relevant to the assessment year 1969-70. While filing the return disclosing the value of the gifts as Rs. 1,50,000, the assessee claimed that the settlement deed dated February 11, 1969, in favour of his wife was exempt under s. 5(1)(viii) of the G.T. Act. The impugned question relates to the interpretation of that registered document dated February 11, 1969. The GTO was of the view that the document is a gift deed and not a will. The appeal filed by the assessee before the AAC challenging both the value of the properties and the interpretation of the document dated February 11, 1969, when taken up for consideration, a report from an approved valuer dated January 8, 1972, valuing all the properties at Rs. 2,49,865 was filed before the AAC. The AAC accepting the contention of the assessee that the document dated February 11, 1969 is not a gift deed, has struck down the assessment made by the GTO on the value of the properties comprised in the document dated February 11, 1969. The AAC held that the vested interest created in favour of the daughters and grandchildren was of the value of Rs. 33,832 whereas the total value of the properties gifted under various documents was Rs. 2,31,337. Thereupon, the Tribunal took the view that there were words in the document indicating the vesting of the present interest in the immovable properties in favour of the assessee's daughters and grandchildren and that the assessee had undertaken not to either revoke or modify the disposition made in the document and hence the document is a gift deed. On the said view, the Tribunal remanded the matter to the AAC to rehear the appeal on the question of valuation of the properties alone. It is as against the said decision of the Tribunal, the present reference has been sought for to his court.

4. The contention of the Revenue with reference to the recitals contained in the document dated February 11, 1969, is that because the assessee had declared in the document that he executed the settlement deed with the intention of avoiding future misunderstandings amongst his hires and creating good feelings amongst them and, because, the assessee has undertaken not to make any change or revoke the document, the document must be deemed to be settlement deed, as specifically mentioned in the title of the document. On the other hand, it is contended on the side of the assessee that there are no recitals with reference to the ve