Judgment :- RATNAM J. In these tax case references under section 64(1) of the Estate Duty Act, 1953 (hereinafter referred to as "the Act"), at the instance of the accountable person and the Controller of Estate Duty, Tamil Nadu, respectively, the following questions of law have been referred to this court for its opinion Tax Case No. 270 of 1980. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that one-eighth share in the mill estates is liable to be included in the dutiable estate of the deceased ? Tax Case No. 271 of 1980 "1. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the deceased had only a right of control and management over the Indo-Commercial Syndicate Mills, Pollachi, for her lifetime and, therefore, only a portion of the value of the mill properties which are attributable to the deceased's interest passed on the death of the deceased? 2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the provisions of section 40(a) have no application to the case on the ground that the deceased's interest in the mill assets did not extend to the whole income derived from the mill and, consequently, only one-eighth share in the mill assets can be included in the principal value of the estate?" * On January 3, 1957, one S. V. Venkatesa Naidu executed a will in favour of his wife, S. V. Rajammal, bequeathing certain properties to her and died on June 21, 1957. S. V. Rajammal passed away on October 16, 1972. The accountable person, while submitting the estate duty account, maintained that the deceased Rajammal was constituted, under the will of Venkatesa Naidu, as an administrator and that the estate did not pass on her death, as it had already passed to them on the death of Venkatesa Naidu on June 21, 1957. However, by way of abundant caution, the accountable person had also furnished the details of the properties belonging to the estate. However, by way of abundant caution, the accountable person had also furnished the details of the properties belonging to the estate. In the course of the proceedings for the assessment under the Act, the accountable person reiterated the stand earlier taken, but, on a construction of the terms of the will dated January 3, 1957, executed by Venkatesa Naidu, the Assistant Controller of Estate Duty came to the conclusion that all the properties devolved on the deceased Rajammal as her absolute properties and passed on her death. Alternatively, the Assistant Controller took the view that, under section 7(1) of the Act, the properties should be deemed to have passed on the death of the deceased, as there was a cesser of the interest of the decease and the accrual of a benefit in favour of the accountable person and others. Finally, the Assistant Controller of Estate Duty included all the properties in the dutiable estate of the deceased. On appeal by the accountable person before the Appellate Controller of Estate Duty, on consideration of the terms of the will dated January 3, 1957, he agreed with the conclusion of the Assistant Controller of Estate Duty that the deceased Rajammal had absolute right over all the properties and they were rightly included in the dutiable estate. In that view, the appeal was dismissed. On further appeal by the accountable person before the Tribunal, contending that though in respect of the residential building and agricultural lands, the deceased had been given an absolute estate, yet, in respect of the mill, the right given to the deceased was one of mere management without any power of alienation and, on a proper construction of the clauses in the will, there was neither the conferment of an absolute estate nor beneficial enjoyment over the entire income on the deceased Rajammal, the Tribunal took the view that the deceased had only a right of control and management over the mill and the absence of a provision conferring a right over the entire income from the mill to the deceased Rajammal and the drawal of Rs. 500 per mensem by her for maintenance clearly indicated that the interest of Rajammal in the mill did not extend to the whole income, but was confined only to her one-eighth share. 500 per mensem by her for maintenance clearly indicated that the interest of Rajammal in the mill did not extend to the whole income, but was confined only to her one-eighth share. In that view, applying the principle laid down in P. K. Balachandran v. CED 1968 (70) ITR 632 (Ker), the Tribunal held that one-eighth share alone can be said to have passed within the meaning of section 5 of the Act. In that view, the Tribunal directed the inclusion of the one-eighth share of Rajammal in the mill assets as part of the dutiable estate of the deceased. That is how the questions of law set out earlier have come up before usThe answer to the questions so referred would depend entirely upon the interpretation to be put upon the clauses in the will dated January 3, 1957, executed by Venkatesa Naidu in favour of his wife, Rajammal. It would, therefore, be appropriate at this stage to make a reference to those clauses which will have a bearing upon the nature of the interest conferred upon the deceased Rajammal under the terms of the will executed by her husband, Venkatesa Naidu. In the preamble portion of the will, a reference has been made by the testator to his desire to make a provision with reference to his properties with a view to safeguard the future interest of his family and for preventing disputes relating to the enjoyment of the properties arising at the instance of his heirs. In paragraph 2 of the will, the testator had provided as follows. "My wife, Smt. S. V. Rajammal, shall have absolute rights over all my properties, both movable and immovable, including my residential bungalow at Pollachi, which are existing now and which may be acquired or augmented in future. All my properties are my self-acquisitions. My wife shall be the only competent authority to administer all my assets and liabilities in the best interests of my family." * Paragraph 3 of the will contained the following provision with reference to agricultural lands. All my properties are my self-acquisitions. My wife shall be the only competent authority to administer all my assets and liabilities in the best interests of my family." * Paragraph 3 of the will contained the following provision with reference to agricultural lands. "She shall have power to sell, mortgage, lease or to do direct cultivation personally or through a duly appointed agent of her choice, of my agricultural lands in Sandhegoundenpalayam village, Pollachi Taluk, as she deems fit according to the circumstances that may arise." * With reference to the mills which forms the subject-matter of these references, in paragraph 4 of the will, the testator provided as follows. "She shall be the sole proprietrix of Indo-Commercial Syndicate Mills, Pollachi, with all its land, buildings, machinery, etc., and it shall be under her control during her lifetime. She shall manage, lease or do own business according to her will and pleasure directly or through her duly appointed agent. But she shall not dispose of the mill during her lifetime. For the purpose of the business alone and if necessity arises, she may mortgage the mills and borrow moneys to carry on the business." * The other relevant clauses in the will, in so far as they have a bearing upon the questions to be decided in these references, are contained in paragraphs 6, 8 and 9, and they are to the following effect. "No partition of my properties, both movable and immovable, shall take place during her lifetime among my sons. In case my wife predeceases me, my sons will have absolute rights in equal shares in all my properties." "....... Any partition shall be only after the lifetime of my wife, Rajammal." " I have already obtained a release deed dated July 9, 1947, from my brother, S. V. Kothandaramaswamy Naidu, and except my wife, Rajammal, none will have any manner of right or interest in the properties which I am disposing of by this will." * The other provisions in the will are unnecessary for our present purpose. In interpreting wills, the entire will should be read as a whole and all the clauses therein will have to be considered in ascertaining the intention of the testator and given effect to and the effort should be to take into account the totality of the will comprising all the clauses to ascertain the intention of the testator expressed. In interpreting wills, the entire will should be read as a whole and all the clauses therein will have to be considered in ascertaining the intention of the testator and given effect to and the effort should be to take into account the totality of the will comprising all the clauses to ascertain the intention of the testator expressed. It has also to be borne in mind that a construction which has the effect of totally destroying one clause while effectuating another should, as far as possible, be avoided. Bearing the aforesaid general principles relating to the construction of wills in mind, the intention of the testator with reference to the nature of the interest conferred on Rajammal under the above-quoted provisions of the will have to be ascertained. In the paragraph immediately following the preamble to the will referred to above, the testator had, in clear and unequivocal terms, expressed that his wife, Rajammal, shall have absolute rights over all his properties which are his self-acquisitions, both movable and immovable, including his bungalow at Pollachi. The use of the expression "all" establishes that the conferment of absolute rights on the self-acquired properties in favour of Rajammal did not admit of any exception, but took in the whole or entirety of the properties of the testator. This clause would undoubtedly establish that the testator intended that his wife, Rajammal, should have absolute and unfettered rights over all his properties, movable as well as immovable. The further provision that Rajammal shall be the only competent authority to administer all his assets and liabilities in the best interests of the family does not in any manner detract from the conferment of absolute rights in favour of Rajammal by the testator. That, what was conferred on Rajammal was an absolute right, at any rate with reference to the agricultural lands, is amplified by the provision made to the effect that she shall be free to sell, mortgage, lease or do direct cultivation personally or through an agent, as she may deem fit. The conferment of this right on Rajammal over the agricultural properties clearly establishes that the testator had intended to confer absolute interest in favour of his wife, Rajammal, under the will with reference to the agricultural lands. The conferment of this right on Rajammal over the agricultural properties clearly establishes that the testator had intended to confer absolute interest in favour of his wife, Rajammal, under the will with reference to the agricultural lands. Even as regards the Indo-Commercial Syndicate Mills, dealt with in paragraph 4 of the will, under the recitals extracted above, the testator had stated that Rajammal shall be the sole proprietrix of the mills with all its land, buildings, machinery and it shall be under her control during her lifetime. Even in this clause, there is an indication that Rajammal was intended by the testator to be the absolute owner of the mills, as the expression used by the testator is that Rajammal should be the sole proprietrix with overall control during her lifetime. The further provision is to the effect that she shall manage, lease or do business according to her will either directly or through agent, but she shall not dispose of the mills during her lifetime. She has also been empowered to borrow for business purposes, should necessity therefor arise, by mortgaging the mills and borrowing money. We have already referred to the first clause in the will to the effect that Rajammal is conferred absolute rights over all the properties. There is also a reiteration of the nature of the absolute interest conferred on Rajammal in the opening part of the will with reference to the mills mentioned in paragraph 4 of the will by the use of the expression that she shall be the sole proprietrix. Ordinarily, the use of the expression "proprietor" or "proprietrix" connotes absolute and unfettered control over the business and all facets of its activities and, viewed in that manner, it follows that the testator intended that his wife should be the absolute owner of the Indo-Commercial Syndicate Mills as well. Ordinarily, the use of the expression "proprietor" or "proprietrix" connotes absolute and unfettered control over the business and all facets of its activities and, viewed in that manner, it follows that the testator intended that his wife should be the absolute owner of the Indo-Commercial Syndicate Mills as well. The provision in the will to the effect that the mill shall be under her control during her lifetime and that she shall not dispose of the mill during her lifetime are merely in the nature of directions, detracting from the absolute bequest in her favour given to her by the first clause in the fourth paragraph in the will, referred to already and conferring on her sole proprietorship with reference to Indo-Commercial Syndicate Mills and, in such an event, Rajammal was entitled to take the bequest, as if the will had contained no such direction, as per section 138 of the Indian Succession Act. Even on the assumption that what was conferred on Rajammal under the clause in paragraph 4 of the will was in the nature of a life interest, it is seen that that would run counter to the earlier clause in the will conferring absolute rights and both the clauses cannot stand together. Likewise, it is seen from paragraph 9 that the testator had again stated that, except his wife, Rajammal, none will have any manner of right or interest in the properties disposed of under the will. We, therefore, find that, under the clause in the second paragraph of the will, the testator had conferred on Rajammal an absolute right over all his properties which, even if regarded as having been cut down to a life interest by the provision made in paragraph 4 with reference to the mills, had again been referred to as the exclusive right or interest of Rajammal in the properties dealt with under the will. We find that, in the clauses found in paragraphs 2 and 9 of the will, the exclusive right and interest of Rajammal has been reaffirmed as the absolute and exclusive right while paragraph 4 may appear to indicate that her interest had been cut down to a life interest and, in such a situation, all the clauses cannot be given effect to together and necessarily, the last clause to the effect that except Rajammal, none will have any manner of interest in the properties will have to prevail and that would lead to the conclusion that Rajammal took absolute rights over all the properties of the testator under his will. We are, however, of the view that in the face of the clear absolute gift in favour of the wife in the will, the nature of her interest cannot be cut down by provisions or words which are neither clear nor decisive and, in the absence of clear and explicit language required to countervail the intentions to defeat the absolute gift, the provisions in the will have got to be construed as one conferring absolute right over all the properties, inclusive of the millsThe prohibition relating to the partition of the properties during the lifetime of Rajammal does not, in any manner, affect the interest of Rajammal conferred on her under the will. At best, the provision relating to the partition to take place after the lifetime of Rajammal is only in the nature of a pious wish that if she had left the properties at the time of her death intact, those properties could be divided by the seven sons of the testator. Likewise, the provision to the effect that, in the case of the death of Rajammal prior to the death of the testator, his sons will have absolute rights in equal shares in all the properties would show that the testator contemplated his wife to enjoy the properties absolutely and for the sons to take the properties, after her death, in the usual course and, in the event of Rajammal predeceasing the testator, only then, the sons will have rights in equal shares in those properties. That contingency did not take place, for the testator died on June 21, 1957, and, Rajammal died on October 16, 1972, and, therefore, the provision in the will regarding partition among the sons is not really very helpful or decisive in deciding the nature of right conferred upon Rajammal under the will. However, what is significant is that no right has been conferred on the sons during the lifetime of Rajammal and this will have a material bearing while considering the applicability of the provisions of sections 7 and 40 of the Act. Thus, on a due and careful consideration of all the clauses in the will, we hold that the deceased Rajammal obtained an absolute interest in all the properties of her husband and, on her death, all those properties passed, thereby justifying their inclusion in the dutiable estate of the deceased Rajammal. We may also consider the question in the light of sections 7 and 40 of the Act, irrespective of whether Rajammal was conferred an absolute right in respect of the properties dealt with under the will of her husband or not. In the will, as noticed earlier, there is nothing to indicate that any fetter or restriction was imposed on Rajammal by the testator in the matter of enjoyment of the income from the mills. Indeed, Rajammal had been even constituted the sole proprietrix of the mills with full and complete control to carry on the business according to her will and pleasure in whatever manner she liked. That is a clear indication of the unfettered right as well as control by Rajammal over the whole or entire income from the mills. Section 7 of the Act, in so far as it is material, runs as follows" 7(1). Subject to the provisions of this section, property in which the deceased .... had an interest ceasing on the death of the deceased, shall be deemed to pass on the deceased's death to the extent to which a benefit accrues or arises by the cesser of such interest...." Section 40 may now be referred to " 40. Subject to the provisions of this section, property in which the deceased .... had an interest ceasing on the death of the deceased, shall be deemed to pass on the deceased's death to the extent to which a benefit accrues or arises by the cesser of such interest...." Section 40 may now be referred to " 40. 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 ; and (b) if the interest extended to less than the whole income of the property, be the principal value of an addition to the property equal to the income to which the interest extended Under section 7, the following conditions have to be fulfilled : (1) the deceased must have had an interest, in the property ; (2) such interest must have ceased on his or her death ; (3) a benefit must have accrued or arisen to another on the cesser of such interest ; and (4) such benefit must be capable of measurement under section 40 of the Act. Under the clauses in the will, the deceased Rajammal had an absolute and unfettered control over the entire income from the mills and that, undoubtedly, constituted an interest which ceased on her death and, as a result thereof, a benefit had arisen or accrued to her sons and such benefit is also capable of being measured under section 40 of the Act. The Tribunal, in this case, had proceeded on a totally erroneous basis that the deceased Rajammal had only a right to oversee the mill assets, viz., a right of control and management. The nature of the right conferred upon Rajammal under the-terms of the will in relation to the mills had already been referred to and that had been held to be a total unfettered right in the mill or, at any rate, over the whole of the income from the mill. The Tribunal took the view that there was no specific provision in the will that the deceased Rajammal had a right of enjoyment of the entire income from the mill. The Tribunal took the view that there was no specific provision in the will that the deceased Rajammal had a right of enjoyment of the entire income from the mill. We fail to see the significance of the absence of such a provision in the will for, when Rajammal had been stated to be the sole proprietrix of the mills with powers to manage, lease and carry on the business according to her will and pleasure, it would follow that there was no need for any specific provision for making clearer what had already been more than sufficiently, clearly and explicitly indicated, viz., that she had the full and complete control over all the business activities of the mill, as she wished and that would suffice to include her right to enjoy the entire income from the mill. The circumstance that the deceased Rajammal appears to have drawn Rs. 500 per mensem for her maintenance would not in any manner indicate that her interest in the income was limited only to Rs. 500. It may be that the withdrawal of Rs. 500 every month was as a result of some kind of self-imposed restriction on Rajammal with a view to conserve the available income for the benefit of others. That, however, in our view, is no indication that she did not have an absolute interest or that her interest did not extend to the whole of the income derived from the mill. We may also, in this connection, point out that the Tribunal committed a grave error in applying the decision in P. K. Balachandran v. CED 1968 (70) ITR 632 (Ker), which was also strongly relied on by learned counsel for the accountable person. In that case, one P. K. Pillai left a will not only in favour of his wife, but also in favour of his six sons. Clause 3 of that will provided that, after his death, all his properties shall devolve on his wife and six sons then in existence and children to be born. The stand of the accountable person was that, on the death of Karthyayani, wife of the testator, what passed was only her one-seventh share. But that was not accepted by the authorities below. The stand of the accountable person was that, on the death of Karthyayani, wife of the testator, what passed was only her one-seventh share. But that was not accepted by the authorities below. On a reference to the court, the argument was that the bequest was to seven persons, named in the will, as tenants-in-common and, therefore, only one-seventh share could be included as part of the dutiable estate and not the whole. This contention was accepted on a consideration and interpretation of the terms of that will. It was pointed out by the court that, under the terms of the will, the estate vested in the widow and the six sons and not in the widow exclusively and the widow of the testator also had no right to enjoy the entire income from the properties during her lifetime and, therefore, section 40 of the Act has no application. It is thus seen that, in the properties of the testator, under the terms of his will, the widow as well as the six sons took an interest and the widow had also no right to enjoy the entire income from the properties. However, in the present case, under the will, during the lifetime of Rajammal, no interest had been created in favour of the seven sons and there is also no restriction placed upon the enjoyment of the entirety of the income from the mills, by the deceased Rajammal during her lifetime. These two circumstances would, in our view, suffice to distinguish the present case from the one in P. K. Balachandran v. CED 1968 (70) ITR 632(Ker). Under those circumstances, the decision in P. K. Balachandran v. CED 1968 (70) ITR 632 (Ker) cannot have any application whatever to this case. We may also point out that, as laid down in Manian Natesan v. CED [1965] 56 ITR(ED) 5 (Mad), if the interest possessed by the deceased extended to the whole of the income from the property, then the value of the benefit would be the principal value of that property and, if the interest extended to the whole of the income, then the valuation could be rightly made under section 40(a) of the Act. We, therefore, hold that, tinder section 7(1) read with section 40(a) of the Act, the entirety of the mill assets is liable to be included in the dutiable estate of the accountable person and not the one-eighth share only as determined by the Tribunal. We, therefore, answer the only question referred to us in T. C. No. 270 of 1980 in the negative and against the accountable person and the two questions referred in T. C. No. 271 of 1980 in the negative and in favour of the Controller of Estate Duty. There will be no order as to costs in T. C. No. 270 of 1980, while in T. C. No. 271 of 1980, the Controller of Estate Duty will be entitled to his costs. Counsel's fee Rs. 500.