JUDGMENT A.R. Tiwari, J. 1. Miscellaneous Civil Case No. 41 of 1987 and Miscellaneous Civil Case No. 200 of 1987 cover the reference made by the Tribunal under Section 26(1) of the Gift-tax Act, 1958 (for short, "the Act"), at the instance of the assessee. Miscellaneous Civil Case No. 44 of 1989 is in compliance with the directions issued by this court under Section 26(2) of the Act. As these cases involve the same question about the taxability as gift and the share on that basis, the cases are heard analogously and are being disposed of by this common order. 2. In Miscellaneous Civil Case No. 41 of 1987, the undernoted question of law, arising out of G. T. A. No. 10/(Ind) of 1984 decided on April 14, 1986, and connectible with R. A. No. 46/(Ind) of 1986 for the assessment year 1974-75, is submitted for our opinion : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the assessee as per deed dated November 12, 1973, made a taxable gift within the meaning of the Gift-tax Act, 1958 ?" 3. In Miscellaneous Civil Case No. 200 of 1987, the undernoted question of law, arising out of G. T. A. No. 9/(Ind) of 1984, decided on December 4, 1986, and connectible with R. A. No. 11/(Ind) of 1987 for the assessment year 1973-74, is submitted for our opinion : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the assessee as per deed dated March 28, 1973, made a taxable gift under the Gift-tax Act, 1958 ?" 4. In Miscellaneous Civil Case No. 44 of 1989, the Tribunal with reference to the order dated June 29, 1987, passed in G. T. A. No. 3/(Ind) of 1987 and connectible with R. A. No. 92/(Ind) of 1987 for the assessment year 1974-75, sent the undernoted question of law, as directed by this court, for our opinion : " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the subject-matter of gift was 1/4th share in the corpus of the trust property and not in the interest of the assessee as a beneficiary ?" 5. Briefly stated, the facts of the case are that the late E. C. Cowasji declared the trust of his movable and immovable properties by a deed of trust dated September 28, 1960, making his wife, Mrs. Banoo Cowasji ; his son J. H. Cowasji ; and his two daughters, Ms. Ketayun Stedman and Ms. Dinoo E. Cowasji, as beneficiaries of the said trust. The said trust was initially discretionary and revocable after a period of seven years. The settlor, the late E. C. Cowasji, thereafter by a deed of renunciation dated May 15, 1967, renounced his discretionary right of revocation and made the said trust as irrevocable. He died on December 23, 1967. Thereafter, his widow, the assessee, Mrs. Banoo Cowasji, by a deed of release dated November 12, 1973, released her right, title and interest in the trust properties in favour of the other three beneficiaries, namely, her son and two daughters. The Gift-tax Officer treated this release deed as gift within the meaning of Clause (xii) read with Clause (xxiv) of Section 2 of the Gift-tax Act. He accordingly valued the 1/4th share of the assessee in the corpus of the trust as also the beneficial interest (life interest) of the assessee in the income of the trust and took the total of the two as the value of the gift. The assessee filed an appeal. The Commissioner of Gift-tax (Appeals) held that it was not a gift and, therefore, he declined to decide the value of the gift. The Department then filed the appeal before the Tribunal. The Tribunal held that it was a gift and thus remitted the case back to the Gift-tax Officer to determine the value of the gifted property. On remand, 1/4th share of the assessee in the corpus of the trust was determined. One of the daughters also released her beneficial interest in favour of her children by release deed dated March 28, 1973. This was also treated as gift. On application, the Tribunal referred the aforesaid questions for our consideration. The third question, as noted above, was referred in compliance with the directions issued by this court. 6. We have heard Shri G. M. Chaphekar, learned senior counsel, with Smt. Meena Chaphekar, for the applicant/assessee, and Shri D.D. Vyas, learned counsel for the non-applicant/Department in all these three miscellaneous civil cases. 7. The third question, as noted above, was referred in compliance with the directions issued by this court. 6. We have heard Shri G. M. Chaphekar, learned senior counsel, with Smt. Meena Chaphekar, for the applicant/assessee, and Shri D.D. Vyas, learned counsel for the non-applicant/Department in all these three miscellaneous civil cases. 7. Shri Chaphekar submitted that it was a case of a beneficiary releasing her beneficial interest in the trust and as such it did not fall within the meaning of Section 2 of the aforesaid Act. He, therefore, submitted that the Commissioner of Gift-tax (Appeals) was correct in holding that it was not a gift and the Tribunal has fallen into error in reversing the order and treating such release as gift. He further submitted that if it is held that the aforesaid release deeds did not amount to gift under the Gift-tax Act, then the third question referred in compliance with the directions of this court will ipso facto vanish because it is evidently consequential in nature. He placed reliance on CGT v. Mrs. Jer Mavis Lubimoff [1978] 114 ITR 90 (Bom) and CGT v. Smt Ansuya Sarabhai [1982] 133 ITR 108 (Guj). 8. Shri Vyas, on the other hand, submitted that it was clearly a gift within the meaning of Section 2(xii) of the aforesaid Act and as such the Tribunal was justified in treating the release deeds as gift under the Act. 9. Section 2(xii) of the Act provides as under : " (xii) 'gift' means the transfer by one person to another of any existing movable or immovable property made voluntarily and without consideration in money or money's worth, and includes the transfer or conversion of any property referred to in Section 4, deemed to be a gift under that section." 10. Charge of gift-tax and gifts subject to such charge are contained in ' Chapter II of the aforesaid Act. 11. The undernoted facts are not in dispute : (a) The trust was created by the late E. C. Cowasji wherein the assessee is one of the beneficiaries. (b) Such beneficiary released her beneficial interest in favour of the children. (c) The other beneficiaries also released their beneficial interest in favour of her children. (d) The beneficial interest was released by the deeds in question. 12. In CGT v. Mrs. (b) Such beneficiary released her beneficial interest in favour of the children. (c) The other beneficiaries also released their beneficial interest in favour of her children. (d) The beneficial interest was released by the deeds in question. 12. In CGT v. Mrs. Jer Mavis Lubimoff [1978] 114 ITR 90 (Bom), it is held as under (headnote) : "Held, that under Clause 2(3) of the trust deed the beneficiary under the power could only be a member of a specified class, namely, child or children of J or her remoter issue. The power that had been conferred by Clause 2(3) of the deed was, therefore, a special power of appointment and the exercise by the assessee of the power of appointment by the deed of poll did not result in a gift. The deed of release or relinquishment was a simple unilateral document executed by J. It did not amount to a 'disposition' under Clause (c) or 'transaction' under Clause (d) of Section 2(xxiv). It was, therefore, not a 'transfer of property' within the meaning of Section 2(xxiv) nor a 'gift' within the meaning of Section 2(xii). The Tribunal had given a clear finding of fact that the deed of release had been executed bona fide. Section 4(l)(c) did not, therefore, apply. The deed of poll and the document of release did not amount to a gift taxable under the Act." 13. In CGT v. Smt. Ansuya Sarabhai [1982] 133 ITR 108 (Guj), it is held under (headnote) : " Held, that the release deed in question did not effect any gift, bilateral or multilateral, between the parties as contemplated by Section 2(xii) read with Section 2(xxiv)(d) of the Gift-tax Act. Nor was the Revenue able to show by arriving at any positive finding that the transaction was not a bona fide one and hence, was a deemed gift within the meaning of Section 4(1)(c) of the Act. The transaction effected by the release deed was not taxable under the Gift-tax Act. " 14. Counsel for the Department could not show any provision in the trust deed or in the release deed to show that the aforesaid transactions amounted to gift. 15. Under the Indian Trusts Act, 1882, rights and powers of trustees are shown from sections 31 to 45, whereas rights and liabilities of the beneficiary are covered by sections 55 to 69 of the aforesaid Act. 15. Under the Indian Trusts Act, 1882, rights and powers of trustees are shown from sections 31 to 45, whereas rights and liabilities of the beneficiary are covered by sections 55 to 69 of the aforesaid Act. Under Section 3 of the Trusts Act, 1882, it is indicated that a "trust" is an obligation annexed to the ownership of property, and arising out of a confidence. The person who reposes or declares the confidence is called the "author of the trust". The person who accepts the confidence is called the "trustee". The person for whose benefit the confidence is accepted is called the "beneficiary" and the subject-matter of the trust is called "trust property" or "trust money". The beneficial interest or interest of the beneficiary is his right against the trustee. 16. It is thus clear that the aforesaid two beneficiaries possessed the right against the trustees and it is this right which was released. ? 17. In view of the aforesaid facts and legal position, we answer the questions as under : (a) As regards Miscellaneous Civil Case No. 41 of 1987, we hold that the release deed dated November 12, 1973, in favour of the major children as per the provisions of trust deeds of September 28, 1960, and May 15, 1967, is not taxable as a gift within the meaning of the Gift-tax Act. We, therefore, answer the question in the negative, i.e., in favour of the applicant/assessee and against the non-applicant/Department. (b) As regards Miscellaneous Civil Case No. 200 of 1987, we hold that the Tribunal was not right in law in holding that the assessee as per deed dated March 28, 1973, made a taxable gift under the Gift-tax Act, 1958. We, therefore, answer the question in the negative, i.e., in favour of the applicant/assessee and against the non-applicant/Department. (c) As regards Miscellaneous Civil Case No. 44 of 1989, we hold that the question of share to the extent of 1/4th becomes irrelevant in the face of our answer as noted above. We, therefore, answer the question in the negative, i.e., in favour of the applicant/assessee and against the non-applicant/Department. 18. The aforesaid three miscellaneous civil cases are thus decided in terms indicated above but without any order as to costs. 19. Counsel fee for each side in each case is, however, fixed at Rs. 750, if certified. 20. We, therefore, answer the question in the negative, i.e., in favour of the applicant/assessee and against the non-applicant/Department. 18. The aforesaid three miscellaneous civil cases are thus decided in terms indicated above but without any order as to costs. 19. Counsel fee for each side in each case is, however, fixed at Rs. 750, if certified. 20. Transmit a copy of this order to the Tribunal in connection with the aforesaid three miscellaneous civil cases for further action, as may be necessary in accordance with law. 21. Retain this order in the record of Miscellaneous Civil Case No. 41 of 1987 and place its copy each in the records of connected miscellaneous civil cases, as particularised above, for ready reference.