: Bhopinder Singh Dhillon, J. - This order will dispose of ED References Nos. 2 and 3 of 1978. The said cross-references arise out of the application of CED, Jullundur and that of the accountable person.
2. The brief facts giving rise to these references are that Gurgopal Singh died on 21st September, 1971. Gurgopal Singh had three sons, namely, Parmjit Singh, Tejinderpal Singh and Amritpal Singh. He also left a widow Smt. Amrjit Kaur. On 5th April, 1971, Parmjit Singh, Tejinderpal Singh and Amritpal Singh filed a suit for declaration that the plaintiffs are the owners in possestion of land described in the plaint in village Chak Hussaina Lamba Pind and residential quarter and farm houses in Tehsil and District Jullundur, as entered in the jamabandi of the relevant year. The plaintiffs claim that they are sons of defendant Gurgopal Singh and were members of the Joint Hindu Family was admitted by Gurgopal Singh. It was averred that the joint family was allotted land in lieu of the land left in Pakistan, in village Chak Hussaina Lamba Pind, the subject matter of the suit and also land in Basti Shah Semi, Tehsil and District Jullundur. As the land stood in the name of the head of the family, Gurgopal Singh, the same was allotted in name. Any how, in recognition of the rights of the plaintiffs the defendant Gurgopal Singh had retained all the land excepting the suit land the suit land was given in possession and exclusive ownership of the three sons. But since in the revenue records the land stood in the name of the defendant who threatened the plaintiffs that he would transfer the suit land, therefore, the plaintiffs filed the suit. Gurgopal Singh admitted the averments made in the plaint and consequently Sub Judge 1st Class, Jullunder passed a decree on 27th April, 1971, declaring the plaintiffs as owners in possession of the land described in the plaint. It may be noticed that this decree was passed before the death of Gurgopal Singh. On the basis of the above mentioned facts, it was pleaded by the accountable person that the land in village Chak Hussaina Lamba Pind which stood transferred to the sons of Gurgopal Singh by way of partition, could not be made subject matter of estate duty. However, the Asstt. Contr. did not accept this contention and held that the deceased was an agriculturist who was governed by customary laws and the concept to coparcenary property was alien. However, on an appeal filed by the accountable person the Appl. CED remanded the case to Asstt. Contr. and directed that enquiry be made whether the property in question constituted ancestral property in the hand of Gurgopal Singh. On remand, the Asstt. Contr. held that the property was ancestral but the factum of partition of the HUF was unsustainable and that the status of the family was HUF. This view was upheld by the Appl. Contr. and consequently revenue and the accountable person filed cross appeals to the Tribunal. The Tribunal dismissed the contention of the revenue on the question of status of the family as HUF following the decision of the Full Bench of this Court in Pritam Singh v. Asstt. CED. As regards the contention of the accountable person, the Tribunal rejected the contention and held as follows :
'We find force in the submissions made on behalf of the Revenue. Nothing is stated about any partition amongst the deceased and his three sons in the plaint and what is asserted is merely that the suit lands were given in possession and exclusive ownership of the three sons. The judgment of the Court merely states that the plaintiffs were owners in possession of land situated in village Lamba Pind and due to the admission of the deceased, the court had no occasion to examine the true nature of the ownership of the lands and the concession given by the deceased. The land in Lamba Pind were undisputedly joint family lands and the plaintiffs i.e. the three sons of the deceased could not aver from their possession of the land that they had become exclusive owners. They were merely having possession of the lands as members of the joint family. In view of this position in law, we reject the A.P.s contention that the lands is Lamba Pind should be excluded from the estate of the deceased due to the court decree.'
On reference application made by the Revenue the following questions of law have been referred to this Court for opinion :
'Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the assessee was governed by Hindu Law and that only his share in the HUF property would pass on his death ?
Whether, on the facts and circumstances of the case, the Appl. Tribunal is justified in law in including the value of the agricultural land at village Lamba Pind, Jullundur, for determining the value of the share of the deceased in ancestral property for the purpose of levy of estate duty after considering the court decree dated 27-4-71, whereby S/Shri Paramjit Singh and Amritpal Singh were declared owners in possession of the said land ?'
3. As regards the first question referred to at the instance of the Revenue it is not disputed that the answer has to be in favour of the accountable person and against the Revenue in view of the Full Bench decision of this Court in Pritam Singhs case. It has, therefore, to be held that the deceased was governed by Hindu Law and only his estate in the HUF property would pass on his death. This question is, therefore, answered in affirmative in favour of the accountable person and against the Revenue.
4. As regards the second question, we are unable to sustain the findings of the Tribunal that by reading the plaint, the judgment and decree reference to which has earlier been made, it cannot be construed that there was partition between coparceners. The Tribunal itself recorded a finding that since the deceased had three sons and a living widow, therefore, on his death share to the extent of 1/5th in the property passed to the heirs of the deceased. It is, therefore, found as a fact, that the deceased had only 1/5th share in the coparcenary property. It cannot be disputed that the judgment and decree of the Civil Court is binding on the parties inter-se. However, if the said judgment and decree results into disposition of property which includes any interest in the property of the deceased and if the said disposition is within two years of the death of the deceased, in that case the property which is the subject matter of disposition will be liable for estate duty. This is the effect of the combined reading of the provisions of the combined reading of the provisions of ss. 2(15), 9 and 27 of the ED Act, 1953. With a view to appreciate the legal position, it has to be first found out whether the three sons of the deceased and the deceased partitioned the property, as has been contended by the ld. counsel for the accountable person. It is well settled that true meaning of the contents of a document can only be given if the document is read as a whole. A reading of the plaint would clearly suggest that according to the averments made in the plaint, which averments were admitted to be correct in the written statement filed by Gurgopal Singh, that the property which was ancestral stood in the name of Gurgopal Singh and that the defendant in recognition of the rights of the plaintiffs gave the whole land and residential quarters and farm houses in Chak Hussaina Lamba Pind to the plaintiffs whereas he had retained all other land with himself. It cannot be disputed that the three sons who were coparceners were entitled to get share in the coparcenary property on partition. It is no doubt true that the word partition has not been used in the plaint but the reading of the plaint as a whole leaves no doubt in our mind that the arrangement regarding which averments have been made in the plaint, was the consequence of a partition in which the three sons of Gurgopal Singh were given land, quarters and farm houses at Chak Hussaina Lamba Pind whereas Gurgopal Singh retained the other property with him.
5. The ld. counsel for the accountable person has made reference to the contents of the report made by the Asstt. Contr. in consequence of the remand order in which the whole assets of the HUF were valued and hads contended that Gurgopal Singh got in the partition property including residential house at Jullundur value of which was rupees one lac and cash amount of Rs. 77,686/-. It has been contended that this would show that the value of the property in village Chak Hussaina Lamba Pind left to his sons during partition was not more than the value of the property retained by Gurgopal Singh in the partition.
6. As we have already observed, a reading of the plaint shows that Gurgopal Singh had left the other property regarding which clear averment has been made in the plaint to his sons in the partition. We are of the opinion that the accountable persons have been able to show that there was partition of the HUF property and the said partition was given recognition in the decree of the Civil Court. Thus the finding recorded by the Tribunal in paragraph 7 to the effect that the said land was in possession of sons of Gurgopal Singh does not hold the field. As regards the finding of the Tribunal in paragraph 8 that if the claim of partition is accepted, anamalous results would follow as in that if the partition had taken place, the property in question cannot be termed as HUF property, is again liable to be interfered with. If a particular property fell to the share of a coparcener during the partition, that cannot be made the subject matter of estate duty. The property left with the deceased which fell to his share from the HUF would still retain the status of HUF property and would again devolve on the heirs as HUF property. Thus the observation made by the Tribunal in this regard is not sustainable in the eye of law.
7. It is no doubt true that the widow of the deceased was not given any property during partition and she may claim her share from the property but that is a matter inter-se between her and her sons. There will be no question of disposition of his property as she is still alive and thus that would not make any difference. It is well settled that in Hindu Law a coparcener may claim partition of the property and if it is partitioned in that case partition would not be invalid for the purpose of the ED Act.
8. After reading the provisions of ss. 2(15), 9 and 27 of the Act and taking into consideration the decision of the Andhra Pradesh High Court in Smt. Cherukuri Eswaramma v. CED and that of their lordships of Supreme Court in CED v. Kantilal Trikmlal, we are of the opinion that the legal position as it emerges is that if by partition some of the share of the deceased person goes to the other coparcener and it this has taken place two years before the death of the deceased, in that case to the extent of the share of the deceased, his interest will be considered to been disposed of and the provisions of the Act will apply but if in the partition, the deceased got equal or more share than to what he was entitled to, in that case, there will be no disposition and he will be held to be having no interest in the property which passed on by way of partition to the other coparceners. In our opinion if the Tribunal comes to the conclusion as a fact that the value of the property which fell to the share of sons of Gurgopal Singh, deceased, was more than the share which was given to Gurgopal Singh, in that case to the extent Shri Gurgopal Singhs interest was transferred to the sons, that will be considered to be disposition under the Act and the provisions of the Act will be attracted but if Shri Gurgopal Singh got share equal to his 1/5th share or more in that case there will be no disposition and the provision of the Act will not be applicable. Since the matter has not been gone into by the Tribunal, keeping in view the legal position as viewed by us, we deem it proper to sent the case back to the Tribunal with the direction to find out the facts and by applying the principle of law laid down by us, decide whether there is disposition within the meaning of provisions of the Act and if so to what extent. If Gurgopal Singh got worth 1/5th share during the partition or more, in that case there will be no disposition of his interest and the provisions of the Act will not be attracted. However, it goes without saying that estate duty on 1/5th share of the property which Gurgopal Singh had at it is not disputed that the same will be liable to the provisions of the Act.
9. In view of what has been stated above, we are unable to answer the second question referred to us at the instance of the accountable person and direct the Tribunal to decide the appeal of the accountable person keeping in view the direction given by us.
There will be no order as to costs.
S. S. Dewan, J. - I agree.