Judgment :- R. JAYASIMHA BABU, J. Though as many as six questions of law have been referred to us at the instance of the Revenue, questions 1, 2 and 5 relate to the superstructure and the issue is the same as to whether the superstructure erected by the deceased on the site which he inherited from his father was his own property or was joint family property. The questions 3, 4 and 6 relate to the site on which the superstructure has been erected and the issue is the same as to whether the site is the joint family property or separate property of the deceased. The amount involved as estate duty is said to be a small sum less than Rs. 5, 000. Though the ED Act is so longer on the statute book, the Department has nevertheless chosen to seek the reference and we have heard the counsel for the Department and for the respondent. 2. The proceedings relate to the assessment to estate duty on the estate of one N. Subramaniam who died at Madras on 28th November, 1977. He had inherited from his father a share of the property which included the site which was later allotted to his share after a partition among him, his brothers and sisters under a partition deed dt. 30th September, 1963. After the partition, he apparently put up a superstructure in the site that was allotted to his share. He, however, in his income-tax and wealth-tax returns treated the site as a joint family property and treated the superstructure as his own property and they were assessed accordingly. 3. The accountable person in the case is his wife Smt. S. Saraswathi. It was her case before the authorities that only one half of the value of the site should be regarded as forming part of the estate of the deceased, as in the notional partition as on the date of death, other half share was allotted to his son and did not form part of the estate of the deceased. Regarding the superstructure, she did not dispute the fact that the superstructure was the exclusive property of the deceased and the same formed part of the estate of the deceased. 4. The Asstt. Regarding the superstructure, she did not dispute the fact that the superstructure was the exclusive property of the deceased and the same formed part of the estate of the deceased. 4. The Asstt. CED took the view that the site was not required to be subjected to the notional partition as, according to him, the entire site was the separate property of the deceased as that property was the self-acquired property of the father of the deceased and the deceased has succeeded to that property as a heir and the partition effected was not among the co-parceners. That view was affirmed by the ACED and also by the Tribunal. The Tribunal however, further proceeded to hold that the superstructure was an accretion to the site and therefore, that also had the character of the joint family property and the share of the son viz., half share has to be excluded for the purpose of computing the value of the estate. 5. We are in agreement with what the Tribunal has done so far as the site is concerned as the deceased had himself in his income-tax and wealth-tax returns treated the same as belonging to HUF and had been assessed accordingly. That conduct of the deceased is sufficient prima facie to show his intention to treat that property, even though it initially had the character of self-acquired property, as joint family property. We, therefore, affirm that finding of the Tribunal. 6. So far as the superstructure is concerned, the deceased had treated the same as his separate property and the same had been assessed as such in his income-tax and wealth-tax returns. The accountable person had declared the same as the self-acquired property of the deceased. The ACED and the Tribunal have in effect ignored the unambiguous declaration of the deceased to treat the superstructure erected by him on the site as his exclusive property and have wrongly treated the same as an accretion to the site. It is well-settled in law in India that the ownership of the superstructure can vest in a person who need not necessarily be the owner of the site. The deceased himself had consciously made a distinction giving the site the character of joint family property while retaining the superstructure as his own property. It was open to him in law to do so. The deceased himself had consciously made a distinction giving the site the character of joint family property while retaining the superstructure as his own property. It was open to him in law to do so. The Tribunal was, therefore, in error in treating the superstructure as an accretion to the site. 7. Our answers to the questions referred to us, therefore, are in the negative in so far as questions 1, 2 and 5 are concerned and in the affirmative in so far as the questions 3 and 4 are concerned. So far as question No. 6 is concerned, that question has to be answered against the Revenue in the light of the decision of the Supreme Court in CED vs. N. Shankaran. That question is whether there is no disposition within the meaning of s. 2(15) r/w s. 27 of the ED Act by the treatment given to the individual property of the deceased as joint family property. The apex Court has held that there is no such disposition in such circumstances. The Tribunal's view on the matter is the right one and our answer to the question No. 6, therefore, is in the affirmative. No costs.