Krishnamoorthy Iyer, J.
1. This is a reference under Section 64(1) of Estate Duty Act, 1953, at the instance of the accountable person by the Income-tax Appellate Tribunal, Cochin Bench. The questions of law referred are:
'(1) Whether, on the facts and in the circumstances of the case, the properties (other than the residential house) gifted by the deceased to his children under the gift deed dated April 9, 1956, can be deemed to pass on the death of the deceased by virtue of Section 10 of the Estate Duty Act, 1953. and if so, to what extent
(2) Whether, on the facts and in the circumstances of the case, the nursing home building gifted by the deceased to his son under the deed dated April 9, 1956, can be deemed to pass on the death of the deceased by virtue of Section 10 of the Estate Duty Act, 1953, and if so, to what extent '
2. The reference relates to the estate duty assessment relating to the estate of Dr. A. K. Kunhalu who died on August 12, 1963. The deceased by the deed of gift dated April 9, 1956, produced as annexure ' A ', gifted four items of properties jointly, to his 5 sons and 3 daughters. Item 1 therein is the residential building over which the deceased had reserved to himself a right of residence. We are concerned in this reference only with items 2 to 4 in annexure ' A '. The gift provided for payment of Rs. 125 per mensem towards maintenance to the deceased and a like amount to his wife charged on items 1 to 4 therein from the 1st April, 1966.
3. The deceased was a doctor and was conducting a nursing home. On the same day, viz., April 9, 1956, the deceased had executed another gift, annexure ' B ', in respect of the building where he was running a nursing home in favour of his son, Abdul Majeed. Thereafter, the deceased took the building on lease for the purpose of the nursing home agreeing to pay rent of Rs. 75 per month. On April 1, 1960, the deceased entered into a partnership with his son, Dr. K. P. Mohamed Babu, regarding the nursing home and the lease arrangement was transferred to the partnership. The deceased had a 2/3rd share in the partnership on and from October 1, 1962. The donee in annexure ' B ', who had by that time become a qualified doctor, also joined the partnership. In the new partnership the deceased had l/3rd share. The lease deed in respect of the nursing home building was transferred to the benefit of the new partnership.
4. In respect of annexure ' A ' the accountable person contended before the Assistant Controller of Estate Duty that the application of Section 10 of the Estate Duty Act should be confined to that portion of the property which would be sufficient for the maintenance stipulated in the gift. The Assistant Controller of Estate Duty rejected this contention and he held that items 2 to 4 in annexure ' A ' shall be deemed to pass on the donor's death for the purpose of the Estate Duty Act. This view was confirmed by the Appellate Controller of Estate Duty and also by the Income-tax Tribunal. In respect of the properties comprised in annexure ' B ' the Assistant Controller held that the deceased had not been excluded from possession of the property and Section 10 would apply and included the value of the property comprised in annexure ' B ' as part of the estate of the deceased. This view was confirmed both by the Appellate Controller as well as the Income-tax Tribunal. Since the answers to the reference depend oh the interpretation of Section 10 of the Estate Duty Act, 1953, we shall start our discussion by extracting the said provision :
' 10. Gifts whenever made where donor not entirely excluded.--Property taken under any gift, whenever made, shall be deemed to pass on the donor's death to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contractor otherwise ;
Provided that the property shall not be deemed to pass by reason only that it was not, as from the date of the gift, exclusively retained as aforesaid, if, by means of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the donor or of any benefit to him for at least two years before the death:
Provided further that a house or part thereof taken under any gift made to the spouse, son, daughter, brother or sister, shall not be deemed to pass on the donor's death by reason only of the residence therein of the donor except where a right of residence therein is reserved or secured directly or indirectly to the donor under the relevant disposition or under any collateral disposition. '
5. Their Lordships of the Supreme Court in George Da Costa v. Controller of Estate Duty,  63 I.T.E. 497, 501;  1 S.C.R. 1004 (S.C.), interpreted Section 10 in the following manner :
' The crux of the section lies in two parts : (1) the donee must bona fide have assumed possession and enjoyment of the property, which is the subject-matter of the gift, to the exclusion of the donor, immediately upon the gift, and (2) the donee must have retained such possession and enjoyment of the property to the entire exclusion of the donor or any benefit to him, by contract or otherwise. As a matter of construction we are of opinion that both these conditions are cumulative. Unless each of these conditions is satisfied, the property would be liable to estate duty under Section 10 of the Act. This view is borne out by the decision of the Court of Appeal in Attorney-General v. Earl Grey,  2 Q.B. 534. 541; 1 E.D.C. 160 (C.A.), with regard to an analogous provisions under Section 38(2) of the Customs and Inland Revenue Act, 1881, as amended by Section 11 of the Customs and Inland Revenue Act, 1889.
The second part of the section has two limbs : the deceased must be entirely excluded, (i) from the property, and (ii) from any benefit by contract or otherwise. It was argued for the appellant that the expression ' by contract or otherwise should be construed ejusdem generis and reference was made to the decision of Hamilton J. in Attorney-General v. Seccombe,  2 K.B. 688 ; 1 E.D.C. 589 (K.B.). On this aspect of the case, we think that the argument of the appellant is justified. In the context of the section, the word ' otherwise' should, in our opinion, be construed ejusdem generis and it must be interpreted to mean some kind of legal obligation or some transaction enforceable at law or in equity which, though not in the form of a contract, may confer a benefit on the donor. '
6. Counsel for the accountable person had a faint contention that the subject-matter of the gift in annexure 'A ' are the properties, subject to the right of maintenance in favour of the deceased and his wife, or to put it in the words of Munro's case,  A.C. 61, 66 ; 2 E.D.C. 462 (P.C.), the gift is shorn of the rights in favour of the deceased and his wife and, therefore, Section 10 has no application. We are afraid that this contention is devoid of any merit. The deed of gift, annexure ' A ', is a conveyance of all the rights of the donor in the properties included therein and the provision for maintenance is on the basis of the contract in the gift deed and is, therefore, referable to the gift. This contention has only to be overruled.
7. Counsel for the accountable person then contended before us that the extent of the property to be included as that of the deceased for the purposes of estate duty must be only that portion sufficient to yield the maintenance for the deceased and his wife stipulated in the gift. According to counsel for the accountable person this is because of the words ' to the extent' in Section 10 of the Estate Duty Act. Counsel cited before us the decision in Rash Mohan Chatterjee v. Controller of Estate Duty,  52 I.T.R. (F.D.) I. 15, 16 (Cal.). In this case the deceased was the absolute owner of some house properties one of which was house No. 1, Queen's Park, Calcutta. On the 1st of July, 1954, he gifted this property by way of trust for the absolute use and benefit of the two sons in equal shares during their lives and upon the death of one or both the sons to be held for the use of the wife or wives of such son or sons with remainder to the male children of the two sons. The upper portion of the premises at No. 1, Queen's Park, Calcutta, was leased to the deceased himself on a monthly rent of Rs. 150 for five years. Even after the expiry of the lease the deceased continued to occupy that part of the premises until his death on July 11, 1959. The question was whether and to what extent estate duty was chargeable in regard to the premises included in the gift under Section 10 of the Estate Duty Act. The learned judges of the Calcutta High Court held that estate duty was payable by the accountable persons only on that portion of the premises which was in the occupation of the deceased as a lessee and observed thus :
' The expression ' to the extent' introduced into the Indian statute is a departure from the provisions in the British and Australian Acts. So far as this aspect of the question is, therefore, concerned no assistance can be derived from decisions in other countries. Mr. Balai Pal, learned counsel for the Controller, says that this expression does not indicate any quantum or degree of curtailment of interest. It is merely descriptive of the nature of the property given to the donee. I am not inclined to accept this argument. That is not the plain meaning of the expression at all and there is no reason why the meaning should be strained in the manner suggested by. Mr. Pal. In any event the doubt, if any, has been resolved by the statement of objects and reasons with respect to Section 10 of the Estate Duty Act, 1953, circulated to the members of Parliament. The statement runs thus:
' This clause brings under charge property given in gift, but in which the donor retains some interests by contract or otherwise. Where the donor retains such interests in a part of the property only, estate duty is payable on that part only......' It is abundantly clear, therefore, that in this case estate duty is payable by the accountable persons only on that portion of premises No. 1 Queen's Park, Calcutta, which was in the occupation of the deceased as a lessee.'
8. In Mohammed Bhai v. Controller of Estate Duty,  69 I.T.R. 770, 777 (A.P.), a case decided by the Andhra Pradesh High Court, the deceased had made gifts of his business in stationery goods and house properties to his sons. Since the date of the gift the donees were making payments to the deceased almost regularly at the rate of Rs. 200 per month. The Assistant Controller included in the estate of the deceased the properties comprised in the gift on the ground that the deceased was deriving benefits from the properties comprised in the gift. It was contended on behalf of the accountable person that only a sufficient extent of the property which will be necessary to provide the maintenance should be included. Alter referring to the decision of the Supreme Court in George Da Costa v. Controller of Estate Duty the learned judges of the Andhra Pradesh High Court observed:
' In view of the observations of their Lordships of the Supreme Court, the enjoyment of part of the income by the donor who was content to rely on the filial affections of the sons, would have the effect of making the gift of the shop to the extent of the enjoyment which the donor derived by receiving regularly Rs. 200 per month (or Rs. 2,400 per year), deemed to pass to the estate of the deceased. The value of the gift of the stationery shop is said to be Rs. 2,40,571. Even an income at 6% on the value of the property would amount to Rs. 14,400 per year, but the exclusion is only in respect of the value of that asset which will earn an income of Rs. 2,400 or say of the value of about Rs. 40,000. This is the value of the property which will be deemed to pass to the estate. The facts of the Supreme Court case cannot be a guide in deciding that the whole of the stationery business will pass to the estate, as in that case it was held that the donor was not excluded from possession and benefit of the entire house. We are, therefore, of the view that so much of the value of the stationery business from which the deceased was not excluded will pass to the estate of the deceased.'
9. In V. S. Mani v. Controller of Estate Duty,  GO I.T.R. 810, 81! (Mad.), a Bench of the Madras High Court observed:
' The words ' to the extent' employed in Section 10 are not to be found either in the English or Australian Acts relating to estate duty. Though the phraseology of Section 10 in the Indian Act would appear to have been substantially borrowed from the English Act, we fail to understand why the Indian legislature introduced those words in the section unless its intention was to bring to tax only that value of property gifted which is still retained by the donor. The section, in case of partial gift, so to state, in the context of Section 10, charges only the part covered by the non-exclusion and non-retention clauses in the section. To the extent to which the donor retains an interest in the entirety of the property given away by him as gift, there will be pro tanto liability to estate duty. '
10. To a similar effect are the decisions of the same High Court in Smt. Parvati Ammal v. Controller of Estate Duty,  74 I.T.R. 200 (Mad.), R. Kanakasabai v. Controller of Estate Duly,  74 I.T.R. 429 (Mad.) and Controller of Estate Duty v. N. R. Ramarathanam,  74 I.T.R. 434 (Mad.). Counsel for the assessee invoked the above decisions to support his contention.
11. On the other hand, counsel for the revenue relied on the decision in Kikabhai Samsuddin v. Controller of Estate Duty,  73 I.T.R. 241 254 (Guj.). In that case, the deceased had executed five deeds of gift bequeathing properties to each of his five sons. The document contained provision for the maintenance of the wife and the deceased and also for the maintenance, education and marriage expenses of the daughters of the deceased. There was also a provision which provided that the eldest son of the deceased should allow the deceased to carry on his business in one of the buildings gifted to the eldest son. The estate duty authorities included the entire value of the properties comprised in the gift deed as properties of the deceased. In considering the correctness of that decision the learned judges of the Gujarat High Court, disagreeing with the decision of the Andhra Pradesh High Court cited by us, observed thus :
' We must make it clear that in the instant case we are only concerned with the second limb of the second part of Section 10 and we have to consider in the instant case whether any of the properties included in the relevant gift deeds has been indicated with precision or specification for providing maintenance for the wife or the unmarried daughters. It is only if there is any such specification or setting apart of any of the properties in respect of which the donor has not been excluded that one can apply the words ' to the extent', in the concept of non-exclusion of the donor from any benefit, under the second limb of the second part of Section 10. The gift deeds make it clear that all the properties covered by the relevant gift deeds are subject to this obligation to provide maintenance for the beneficiary concerned, viz., the wife or the unmarried daughter for whom the provision is made in the relevant gift deed and it cannot be predicated in the case of any of the five gift deeds that any particular extent or portion of the property is subject to this obligation for maintenance, the rest of the properties being free from such obligation. Since it cannot be so predicated, it is clear that all the properties covered by each gift deed are subject to the condition for providing maintenance to the person concerned and, therefore, it is clear that in the case of each of the five trust deeds, the donee has not retained possession and enjoyment of the property to the entire exclusion of any benefit to the donor. Since there is non-exclusion of the benefit to the donor with reference to the entire property, it is clear that the words ' to the extent' occurring in Section 10 cannot help any of the donees in the instant case '.
12. Let us now look into the recitals in the deed before us. It is necessary to remember that all the four items in annexure A ' were charged for the maintenance payable to the deceased and his wife. The effect of this provision is that benefit in favour of the deceased is on all the properties comprised therein. The intention of the deceased, therefore, was that a portion of the income of the properties has to be diverted to him and his wife towards maintenance though no doubt to the extent mentioned in the document. This is even a case where the first clause of the second limb of Section 10 can apply, in that it can be held that the donor has not been entirely excluded from possession of the properties comprised in annexure 'A'. Be that as it may, we have no doubt that the properties in annexure ' A ', were not retained by the donee to the entire exclusion of any benefit in favour of the donor in respect of the properties comprised in annexure 'A'. When the retention of the benefit in favour of the donor was over the entire properties comprised in annexure ' A ' there is no scope for applying the words ' to the extent ' occurring in the section. Before the Andhra Pradesh High Court and the Gujarat High Court there was no specific charge created under the gift deeds in question. We do not think that in view of the terms of annexure ' A ' any such contention as is advanced by the accountable person is possible at all.
13. The question whether the properties in annexure ' B ' are hit by Section 10 of the Estate Duty Act, 1953, is concluded in favour of the department by the decision in Chick's case,  A.C. 435,  37 I.T.R. (E.D.) 89, 3 E.D.C. 915 (P.C.).
14. We, therefore, answer both the questions in the affirmative, that is, infavour of the department and against the accountable person. We makeno order as to costs.
15. A copy of this judgment will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench, under the seal of this court and over the signature of the Registrar.