1. The following question has been referred to this court for its opinion by the Income-tax Appellate Tribunal at the instance of the accountable person with reference to the estate duty proceedings arising on the death of his father, one Menghraj Thakurdas :
'Whether, on the facts and in the circumstances of the case, the deceased had the beneficial title to the site, viz., Plot No. 4, Avadi Road, Kilpauk, Madras, of the extent of 4 grounds and 610 sq. ft. and whether such beneficial title passed in his death under section 5 of the E.D. Act ?'
2. A building site measuring 4 grounds and 610 sq. ft. in Plot No. 4, Avadi Road, Kilpauk, Madras, was purchased under a registered sale deed dated May 25, 1963, in the name of Smt. Hemibai Mangharam, wife of Menghraj Thakurdas. The said Menghraj Thakurdas died on November 17, 1969. On the ground that the said deceased had provided funds for the purchase of the property in the name of his wife, Hemibai Mangharam, the deceased was taken to be a beneficial owner of the said property in the estate duty assessment. The Assistant Controller added the market value of the said vacant site to the principal value of the estate as furnished by the accountable person on the ground that the said house site belonged to the deceased at the time of his death and, therefore, the property in question should be taken to have passed on his death. The accountable person objected to this addition and contended that though the deceased provided funds necessary for his wife for the purchase of the house site, that will not make him the owner of the house site; that the deceased had intended to confer on his wife the benefit of the house site and, therefore, the value of the site cannot be added to the estate of the deceased. This objection was overruled by the Assistant Controller of Estate Duty. On appeal by the accountable person, the appellate authority upheld the contention of the accountable person. There was a further appeal by the Revenue before the Tribunal contending that since the consideration had proceeded from the deceased, he should be taken to be the beneficial owner and that as per section 82 of the Trusts Act, the person who provided the consideration for the purchase should be taken to be the true owner, notwithstanding the fact that the sale deed stood in the name of the wife of the deceased. The Tribunal held that section 82 of the Trusts Act stands attracted on the facts of this case and the onus of showing the intention of the person who provided funds for the purchase of the property to benefit the person in whose name the property has been purchased is on the purchaser and that so long the transferee does not prove the intention, the person who provided funds should be taken to be the owner of the property. Aggrieved by the decision of the Tribunal, the accountable person has come to this court by way of this reference.
3. There is no dispute on the facts. The building site measuring four grounds and 610 s. ft. being Plot No. 4, Avadi Road, Kilpauk, Madras, had been purchased in the name of deceased's wife on May 25, 1963. The funds for the purchase of the said site had been provided by the deceased, the husband of the transferee. The controversy between the parties in this case on these admitted facts is as to whether the deceased provided funds with an intention to benefit the wife or whether he intended to treat the property as his as he had provided funds for the purchase. The Tribunal, as already stated, has proceeded on the basis that the onus of proving the intention referred to in section 82 of the Trusts Act has not been discharged in this case. The learned counsel for the assessee makes a twofold contention. Firstly, even if section 82 of the Trusts Act is applied to the facts of this case, the onus of showing the intention referred to in that section is on the Revenue and the Tribunal has wrongly thrown the onus on the accountable person. Secondly, it is contended that, in any event, on the materials on record, the Tribunal should have held that the onus of showing the intention of proving should be taken to be discharged. It is stated that the building site purchased on May 25, 1963, while the deceased was alive, has not been put to any use and it continued to be a vacant site till the deceased died. Therefore, there is no material to find out, from the enjoyment of the property as to what the deceased intended when the property was purchased in the name of his wife, or as to who enjoyed the property. However, the accountable person in this case has proved by some documents as to what was the intention of the deceased at the time of purchase of the property. After the purchase of the house site on May 25, 1963, the deceased himself has been submitting the returns under the Wealth-tax Act, wherein he has not included the property in question in his wealth. After purchase, at least for the two years, such returns had been filed for the assessment years 1968-69 and 1969-70. If really the deceased had not intended to benefit his wife by way of purchase of the house site in question, he would have shown the same as his own in the wealth-tax return. This in a way indicates that the deceased did not intend to have any beneficial interest in the property in question. On the other hand, the wife, after purchase of this property, has been submitting a return under the Wealth-tax Act, showing the property as hers. This conduct on the part of the wife will also indicate that the husband intended to benefit her by providing funds for the purchase of the property. The conduct of both the deceased and his wife after the purchase of the property in question is quite material to find out the intention on the part of the deceased while providing funds for the purchase of the property. Therefore, it cannot be said that in this case, there is no material at all to prove the intention of the deceased at the time of providing funds for the purchase of the property and hence the onus of proving the intention has not been discharged in this case as has been held by the Tribunal.
4. On a due consideration of the matter, we are of the view that the materials in this case clearly disprove any intention on the part of the deceased to have the beneficial interest in the property purchased in the name of his wife. When the parties have adduced evidence in support of their respective claims, the court has to consider the intention, if any, on the materials on record and it cannot, notwithstanding those materials from which the intention could be gathered, reject the claim of the accountable person on the ground that the onus of proof has not been duly discharged. Since on the facts, we have found that the onus as to the intention on the part of the deceased at the time of purchase had been duly discharged, it is unnecessary to go into the question on whom the onus of proving the intention lies. In this case, the Tribunal mainly proceeded on the basis that the onus is on the transferee, that the only piece of evidence is the wealth-tax returns filed by the deceased for the assessment year 1968-69 and 1969-70 and that merely on the basis of such returns, the accountable person cannot have the property excluded from the estate of the deceased. We are not in a position to agree with the view taken by the Tribunal. The filing of the return by the deceased himself while he was alive clearly shows his conduct in treating the property as not his. We are not in a position to say that the conduct of the deceased after the purchase of the property in treating the property in treating the property not as his own is either immaterial or irrelevant. Therefore, we are not in a position to eschew the wealth-tax returns filed by the deceased for the assessment years 1968-69 and 1969-70 on the ground that they are not relevant or insufficient to prove the claim of the accountable person that the property in question did not belong to the deceased. In this view of the matter, we have to hold that the deceased had no beneficial title to Plot No. 4, Avadi Road, Kilpauk, Madras.
5. We answer the question in the negative and in favour of the accountable person. The accountable person will get costs from the Revenue. Counsel's fee Rs. 500.