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TMI Blog1984 (7) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... ,388, aggregated five-sixths of the lineal descendants' shares in the joint family at Rs. 2,05,915. 3. The accountable person contended that the lineal descendants' shares could not be aggregated. The Assistant Controller rejected this contention. The Appellate Controller upheld the Assistant Controller's order on this point after noting that a large number of High Courts had taken the view that the lineal descendants' shares were aggregable under section 34(1)(c) of the Estate Duty Act, 1953 ('the Act'), and the decision in favour of the accountable person was only of the Madras High Court in V. Devaki Ammal v. ACED [1973] 91 ITR 24. 4. The Appellate Controller, however, accepted the assessee's contention that while aggregating the lin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lzari Mal, there was a complete partition of the HUF headed by Gulzari Mal or there was a notional partition only so far as the interest of Gulzari Mal in the coparcenary property was concerned. 7. Regarding the accountable person's claim of complete partition, in view of the Supreme Court's observations in Gurupad Khandappa Magdum's case, we extract below the observations in Mulla's Hindu Law (15th edn.) under the head Explanation 1 to section 6 of the Hindu Succession Act, 1956 : "...But the operation of the notional partition and its inevitable corollaries and incidents is to be only for the purposes of this section namely, devolution of interest of the deceased in coparcenary property and would not bring about total disruption of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or under section 7 of the Act, the interests of the lineal descendants of the deceased in the joint family property have to be aggregated so as to form one estate for the purpose of determining the rate of estate duty. The aid of Explanation 1 to section 6 of the Hindu Succession Act is to be taken only in order to ascertain the share or interest of the deceased coparcener in the coparcenary property. Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener 'shall be deemed to be' the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. An actual partition of the HUF need not be as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The proviso to section 6 of the Hindu Succession Act does not effect a disruption in a coparcenary family. In the first place, the proviso creates a fiction only for purposes of section 6. Section 7 sets out the mode of devolution of interest in a coparcenary property. Thus, the fiction created by the proviso is only for purposes of fixing the persons who are entitled to succeed to the property of the deceased coparcener. It comes into operation only after the death of a coparcener and only for the limited purpose of laying down the succession. This interpretation is in consonance with the principle that a legal fiction must be limited to the purpose for which it has been created and cannot be extended beyond its legitimate field. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xistence of the coparcenary, the abrogation of the restriction of testamentary disposition does not destroy the existence of a coparcener or coparcenary property. " 9. The Tribunal, Delhi Bench 'B' in WTO v. H. H. Sir Sawai Man Singhji of Jaipur (HUF) [1984] 7 ITD 401 was interpreting Gurupad Khandappa Magdum's case and they noticed the interpretation of the said Supreme Court decision by the Allahabad High Court in Maharani Raj Laxmi Kumari Devi's case but they did not follow the said Allahabad High Court decision, observing that the said decision was under the Act (see para 9). The said Bench, thus, gave their own interpretation to the Supreme Court decision contrary to the interpretation given by the Allahabad High Court in the aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatus and partition by metes and bounds, the Income-tax Act, 1961 recognises only partition by metes and bounds. Under the income-tax law there are statutory provisions regarding non-recognition of partial partition and converted property which have made a departure from traditional Hindu law. Statutory provisions prevail over the traditional Hindu law. Thus, the provisions of section 34(1)(c) would prevail and the lineal descendants' shares have to be aggregated for determining the estate duty payable on the death of a coparcener. We would, accordingly, reject the assessee's contention challenging the aggregation of lineal descendants' shares. 14. We may also mention that the Madhya Pradesh High Court in CED v. Prakashchand [1984] 147 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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