SRINIVASA IYENGAR, J. ( 1 ) THE Income-tax Appellate Tribunal, Bangalore Bench, has referred the following question for a decision of this Court:" Whether on the facts and in the circumstances of the case, the value of the residential property known as 'rajatadri' is includible in the principal value of the estate passing on the death of the deceased under section 10 of the Estate Duty Act, 1953. " ( 2 ) ONE B. Rudra alias Rudrashetty was the owner of the house by name 'rajajtadri' and the proceedings relate to the estate duty leviable in regard to his estate, he having died on 2-8-1963. By a registered deed dt. 27th November 1957 he has gifted the residential house to his wife. The gift was more than two years prior to his death. The estate duty authorities, sought to include the value of the said house in determining the principal value of the estate paasang on his death on the ground that the donee had not retained possession and enjoyment to the entire exclusion of the donor in respect of the said house The accountable person prefeired an appeal to the Appellate Controller of Estate Duty, but his contention was no' upheld. The appeal preferred by the accountable person in this behalf to the Tribunal did not meet w'th success. At the instance of the accountable person, the question above referred to has been referred to this Court ( 3 ) THE finding of the authorities has been that the gilt was a genume one, but they have held that the value of the house is includible in the principal value of the estate passing on the death under Sec. 10 of the Estate Duty Act, 1953 (hereinafter referred to as the Act), merely because the deceased who was the husband of the donee continued to beside in the house till his death The Tribunal mainly sought to rely on certain observations made by the Supreme Court in George Da Costa v. Controller of Estate Duty, 63 ITR. 497. Similar question had to be considered by the High Court of Calcutta and Andhra Pradesh after the Supreme Court rendered its decision in the above case. The High Court of Madras has also considered the said question after the Supreme Court rendered its declsion. 497. Similar question had to be considered by the High Court of Calcutta and Andhra Pradesh after the Supreme Court rendered its decision in the above case. The High Court of Madras has also considered the said question after the Supreme Court rendered its declsion. They have held that in similar circumstances where the gift is by the husband to the wife of a residential house, the mere fact that he continued to reside in it till his death would not amount to the donee not retaming the property to the entire exclusion of the donor and it cannot be said that the mere residence of the husband in such circumstancesl would amount to he being m possession and enjoyment of the house, he having nothing to do with its possession and enjoyment The decisions of the high Court of Calcutta have been leported in shamsum Nehar Mansur v. Controller of Estate Duty, 71 ITR 301. and Sunil Roy v. Controller of Estate Duty, 77 ITR 668. and that of the Andhra Pradesh High Court in Mohammed Bhai v Controller of Estate Duty, 69 ITR 770. In Mohammed Bhai's case (4) at page 777 jaganmohan Reddy, CJ (as he then was) observed as follows :'' There was no other way in which the donor even from the department's point of view, could have given possession of the residential house to his wife m order to make an effective gift unless it is stated that he should leave his wife and go into some other house, or that they should both move out of the house and leave it so that the wife will thence forth receive the rents. . . . We do not think there is anything in Sec 10 which requires a break in the marital relationship or separation from the husband to make an effective gift of the residential house to the wife or the wife to the husband. "we are in respectful agreement with the above observation. The High court of Madras in the case reported in Controller of Estate Duty v. K' mala pandaloi, 105 ITR. 531. reviewed all the decisions of the other High Courts and its view is also on the same lines. "we are in respectful agreement with the above observation. The High court of Madras in the case reported in Controller of Estate Duty v. K' mala pandaloi, 105 ITR. 531. reviewed all the decisions of the other High Courts and its view is also on the same lines. ( 4 ) IN the instant cage, the house property was the matrimonial house The presence of the husband in the house after the gift with his wife cannot in any way militate against the wife-donee retaining to the entire exclusion of the donor the possession and enjoyment of the house. For the department the decision of the High Court of Allahabad in Bibi ammadi Begum v. Controller of Estate Duty, 83 ITR. 303. was relied upon. The view taken by the High Court af Calcutta was sought to be relied upon before the Allahabad High Court, but the learned Judges were not inclined to agree with that view. In our opinion the view taken by the other High Courts referred to above appears to us to take the correct view and accordingly we follow them in preference ito the decision of the high Court of Allahabad. For the reasons stated above, the inclusion of the value of the house gifted in the computation of the principal value of the estate; passing on the death in favour of his wife Girija was not warranted. Therefore, we answer the question referred to us in the negative and in favour of the accountable person. No costs. --- *** --- .