JUDGMENT 1. This is a petition under Art. 227 of the Constitution against an order passed by the Asstt. CED- cum-Income- tax Circle, Calcutta, dt. the 24th Jan., 1960, wherein he informed the petitioner that the proposed assessment of estate duty would be completed taking valuation as stated therein. 2. One Nagendra Nath Banerjee died on the 3rd Nov., 1930, leaving a will. By the said will Sudhir Bala, the widow of the testator, was appointed executrix to the said will and probate was taken. By the said will, with regard to items 4, 6 and 7 of the said will, a life estate was created in favour of his widow, Sudhir Bala Devi, and an absolute bequest thereafter to the petitioner and his brothers. Sudhir Bala thereafter died on the 5th Sept., 1960. The question is whether the petitioner is liable to pay estate duty with reference to the properties which vested absolutely in them by the will of Nagendra Nath Banerjee who died on 3rd Nov., 1930. 3. It is urged by Mr. Mukherjee on behalf of the petitioner that no estate duty can be charged so far as the petitioner is concerned. Mr. Mukherjee has referred to ss. 4, 5, 6 and 7 of the ED Act of 1953. Sec. 5 is as follows : "In the case of every person dying after the commencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided of all property, settled or not settled . . . . . which passes on the death of such person, a duty called ' estate duty' . . . . .". 4. According to Mr. Mukherjee, s. 5 has no application for the reason that the property vested in the petitioner on the death of Nagendra Nath which event occurred in 1930 long before the ED Act came into force and the property passed to the petitioner on the death of Nagendra Nath and nothing passed by the death of Sudhir Bala. Sudhir Bala had merely a life estate which ended with her death. Therefore, the property could not have "passed" by the death of Sudhir Bala. Mr. Mukherjee has referred to the definition of the word "property" which includes an interest in the property and, therefore, not land or any immovable property apart from the rights thereto. Sudhir Bala had merely a life estate which ended with her death. Therefore, the property could not have "passed" by the death of Sudhir Bala. Mr. Mukherjee has referred to the definition of the word "property" which includes an interest in the property and, therefore, not land or any immovable property apart from the rights thereto. As the title passed in 1930, for purposes of s. 5, the property must be deemed to have passed in 1930 on the death of Nagendra Nath. Therefore, s. 5 would not apply. With regard to s. 6, it is said that Sudhir Bala was not competent to dispose of the property nor did she dispose of the property. Therefore, s. 6 has no application. With regard to s. 7, Mr. Mukherjee says that, as the title to the property passed by the death of Nagendra Nath, there is no question of any interest being deemed to pass on the death of Sudhir Bala. According to Mr. Mukherjee, nothing passed and nothing could pass because of the death of Sudhir Bala and, therefore, nothing can be deemed to have passed on the death of Sudhir Bala. The result, therefore, is that no estate duty is payable with regard to this property. Mr. Mukherjee has referred to a decision in In re Thomas Townsend (1901) 2 KB 331 : 1 EDC 336. Mr. Mukherjee says that there is absolutely no doubt that title passed on the death of Nagendra Nath. At worst it may be said that only possession passed after the death of Sudhir Bala. Therefore, the property that passed may at worst be considered to be the value of possession apart from the value of title and, as no value can be levied with regard to possession apart from title, he was not liable to pay any duty whatsoever. This argument is based on the aforesaid decision. Mr. Mukherjee further referred to a case in Earl Cowley vs. IRCs (1899) AC 198 : 1 EDC 193. In that case the property was mortgaged and further there was an annuity in favour of the father and the son had the remainder over. It was held that the settled property, which passed to the son on the father's death, was only equity of redemption, and that estate duty was, therefore, payable only on the equity of redemption and not on the value of the property. It was held that the settled property, which passed to the son on the father's death, was only equity of redemption, and that estate duty was, therefore, payable only on the equity of redemption and not on the value of the property. It is urged therefore that, as title passed on the death of Nagendra Nath and as mere possession at most passed at the death of Sudhir Bala, nothing more than the value of possession should be the value of the property which passed on the death. But as that value cannot be determined, nothing could possibly pass. 5. Mr. Pal on behalf of the Department referred me to the definition of the words "settled property". "Settled property" means property which stands limited to or in trust of any person, natural or juridical, by way of succession. He also referred to s. 3(3), which is as follows : "For the avoidance of doubt, it is hereby declared that references in this Act to property passing on the death of a person shall be construed as including references to property deemed to pass on the death of such person." 6. Mr. Pal therefore asks us to construe s. 5 as if the word " pass" includes the words "deemed to have passed". According to Mr. Pal, s. 5 would apply, whether the property was settled or not settled and it must be deemed to have passed and, therefore, it must be deemed to have passed when Sudhir Bala died. According to Mr. Pal, title to the property really passed on the death of Nagendra Nath and possession passed on the death of Sudhir Bala. Mr. Pal has further referred to s. 40, which is as follows : "The value of the benefit accruing or arising from the cesser of an interest ceasing on the death of the deceased shall-- (a) if the interest extended to the whole income of the property, be the principal value of that property. . . . ." Mr. Pal, therefore, urges that after the death of Sudhir Bala, the petitioner will get the entire income. The argument of Mr. Mukherjee that the value of possession to the property would be the value on which estate duty is to be paid, is not correct, whatever might have passed-whether title or possession. . . . ." Mr. Pal, therefore, urges that after the death of Sudhir Bala, the petitioner will get the entire income. The argument of Mr. Mukherjee that the value of possession to the property would be the value on which estate duty is to be paid, is not correct, whatever might have passed-whether title or possession. If the person to whom the property passes or the person to whom possession passes receives the entire income or is entitled to receive the entire income, he has to pay the entire value not because of the general principles of law but because of the provision of the Indian statute and, therefore, he is liable to pay the entire duty on the property which passes to him. 7. We have now to interpret the phrase "passes on the death" in the context of s. 5 of the ED Act. The phrase "passes on the death" has been referred to in the definition section, s. 2, and s. 2(16) explains what are included in that phrase, but does not explain what is defined by that phrase. It includes " property passing either immediately on the death or after any interval, either certainly or contingently and either originally or by way of substitutive limitation." The phrase "on the death" has been stated to include "at a period ascertainable only by reference to the death". According to Mr. Mukherjee, at the time of the death of Nagendra Nath, the property passed to the widow for life as absolutely to the petitioner and his brothers. Therefore, by the same will there cannot be a second passing of the property and he referred to the decisions aforesaid in support of his proposition. Mr. Mukherjee also refers to s. 6 and says that at the time of the death of Sudhir Bala no property can be deemed to have passed as she was not competent to dispose of the property. The property, according to Mr. Mukherjee, passed to the present petitioner and his brothers on the death of Nagendra Nath alone and the death had taken place before the ED Act came into force. By the passing of the property on the death of Nagendra Nath no tax is payable. 8. The whole reasoning under this argument is, "property passes" means " title to the property passed" and, according to the argument of Mr. By the passing of the property on the death of Nagendra Nath no tax is payable. 8. The whole reasoning under this argument is, "property passes" means " title to the property passed" and, according to the argument of Mr. Pal, "property passes" means " possession of property passed". The question therefore is what is the true meaning of the word "passes" in s. 5. Mr. Mukherjee has referred to Earl Cowley vs. IRCs (supra). Lord Macnaghten observed as follows : "The principle on which the Finance Act, 1894, was founded is that whenever property changes hands on death the State is entitled to step in and take toll of the property as it passed without regard to its destination or to the degree of relationship, if any, that may have subsisted between the deceased and the person or persons succeeding." The word "passes" has no technical meaning and that it really means changing of hands was accepted by the House of Lords (Lord Haldane) in Nevill vs. IRCs (1924) AC 385 : 2 EDC 219. In Attorney-General vs. Milne (1914) AC 765 : 2 EDC 8, Lord Parker of Waddington observed as follows : "The expression 'passing on the death' is not further defined, but is evidently used to denote some actual change in the title or possession of the property as a whole which takes place at the death." 9. Hence, it is clear that in interpreting s. 1 of the Finance Act of 1894, i.e., 57-58 Vict., Chapter XXX, which is practically the same as s. 5 of our Act, Lord Parker of Waddington has accepted the interpretation and come to the same conclusion that when property "passes", it means "when property changes hands." It is no doubt in this case that the property changed hands. Therefore, I come to the conclusion that the "property passed". The aforesaid decision further proved that what the English Act contemplated was the "changing of hands" of property. It does not refer to devolution of interest. Mr. Mukherjee is perfectly right when he says that no title devolved to the petitioner on the death of Sudhir Bala. But the Act does not speak of devolution of title from one person to another. In fact, reference to persons is not to be found in the Act itself. What it refers to is the property which goes from one hand to another. But the Act does not speak of devolution of title from one person to another. In fact, reference to persons is not to be found in the Act itself. What it refers to is the property which goes from one hand to another. The only question we are to decide is, whether the property went from one hand to the other. The aforesaid decisions are sufficient authority to show that the property passed from one hand to another. 10. In that view of the matter, the rule must be discharged. Mr. Pal took an objection at a late stage that no rule might have been issued as the petitioner will have complete remedy in appeals if and when occasion arises. It was not taken as a preliminary but was taken as a part of the argument of Mr. Pal who supported the order on its own merits. As the matter was argued by the advocates of both sides, I thought it desirable to express my views over the matter. Mr. Mukherjee argued that all the properties referred to in the order did not come into the hands of the petitioner. These are questions of fact which the petitioner will have ample opportunity to agitate before the trial authority. The rule is, therefore, discharged and the interim order vacated. 11. There will be no order as to costs.