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Issues: Whether the value of the property at 38, Southern Avenue, Calcutta, was includible in the estate under section 10 of the Estate Duty Act, 1953, on the ground that the donor was not entirely excluded from possession and enjoyment of the property.
Analysis: Section 10 applies only where, after a gift, the donee has not bona fide assumed possession and enjoyment immediately and retained it to the entire exclusion of the donor or of any benefit to him by contract or otherwise. The controlling principle is that both conditions are cumulative. On the facts found, the trustees/donee had assumed possession after the trust deed, the donor had moved out soon after execution of the deed, and there was no legally enforceable benefit reserved to him. Mere temporary presence of the donor shortly before death did not, in the circumstances, amount to a failure of the donee's possession and enjoyment so as to attract the statutory deeming provision.
Conclusion: The property was not liable to be brought back into the estate under section 10, and the question was answered in the negative, in favour of the assessee.
Ratio Decidendi: For section 10 of the Estate Duty Act, 1953 to apply, the donee must bona fide assume and retain possession and enjoyment to the donor's entire exclusion; mere temporary residence or presence of the donor, without a reserved contractual or other enforceable benefit, does not by itself attract the deeming provision.
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