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TMI Blog1984 (9) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Controller, following the ratio of the decision of the Andhra Pradesh High Court in the case of CED v. Estate of Late S. Srinivasulu Reddy, A/P Sumanamma [Case Referred No. 107 of 1976, dated 21-12-1979], came to the conclusion that inasmuch as the daughters are entitled to have share in their father's estate, they are not entitled for maintenance. Accordingly, he confirmed the view taken by the Assistant Controller. 3. Aggrieved, the assessee is in appeal before us. Before us, it was submitted that the Appellate Controller was not justified in confirming the disallowance of Rs. 30,000 claimed by way of marriage expenses for the three unmarried daughters. It was further submitted that the decision of the Andhra Pradesh High Court in Estate of Late S. Srinivasulu Reddy, A/P Sumanamma's case does not apply to the facts of this case. Accordingly, it was pleaded that inasmuch as the marriage expenses of the daughters, which is in the nature of charge on the property, should be considered as deductible from the estate of the deceased. 4. On the other hand, the learned departmental representative supported the order passed by the Appellate Controller. 5. We have heard the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccept the contention put forward in this respect and he as under : " The maintenance is a matter for which provision is made in the Act and therefore any one claiming maintenance which takes in the marriage expenses of ail unmarried daughter (under section 3(b) of the Act), would have to work his/her rights only under the provisions of the Act and the textual Hindu Law cannot be invoked at all. It cannot therefore be contended that the abrogation of the textual law under section 4 of the Act would be limited to the maintenance right in lieu of the estate of the deceased only and that such textual law as against the remaining part of the joint family property cannot be said to have been abrogated." The Special Bench of the Madras Tribunal had an occasion to deal with this question in the case of Smt. K.S. Jayam v. ACED [1983] 3 ITD 804. In that case, the Tribunal held after considering the judgment of the Madras High Court in Karuppana Gounder's case : " We have considered rival contentions carefully. It appears that article 304 of Mulla's Hindu Law which provides for determination of ' the property available for partition ' before actual notional partition can take place has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which follow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d her interest merged in the coparcenary property and by reason of the inclusive part of sub-section (1) of section 7, it must be taken to have passed on her death and was hence exigible to estate duty. Since Smt. Alladi was a member of the coparcenary, this interest of her's which passed on her death was liable to be valued in accordance with the method provided by section 39 of the Act." Again deduction allowable with regard to the provisions for marriage expenses of unmarried daughter of the deceased from the ancestral property came up for consideration before the Madras High Court in the case of CED v. Dr. B. Kamalamma [1984] 148 ITR 434. According to the facts in that case, the deceased died possessed of an estate worth Rs. 4,17,744. The estate comprised of both ancestral property and self-acquisitions. The deceased was survived by his wife and a minor daughter aged 17 years. The deceased's widow filed an estate duty account with the Assistant Controller. She claimed, inter alia, a deduction for Rs. 72,000 as provision for the marriage of the daughter. The Assistant Controller, however, negatived this claim. He took the view that the obligation to get the daughter married wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : " Marriage expenses -- In the case of a joint family governed by the Mitakshara law, the joint family property is liable, while the family is still joint, for the legitimate marriage expenses of male members of the family (k), and also of the daughters of male members of the family. The decision in Subbayya v. Ananta, 53 Mad. 84 implies that a father in possession of a joint family property is under a legal obligation to get his daughter married. It follows that if a father so in possession neglects his duty, the mother may perform it and recover the expenses from her husband. When there is no joint family property in the hands of the father there is no legal obligation on his part to marry his daughter and bear the expenses of marriage. It is doubtful also whether the marriage of an infant girl could be brought under the head of ' Necessaries ' within the meaning of section 68, the Indian Contract Act. On the other hand the proposition of law laid down in Sundari Ammal v. Subramania Ayyar 26 Mad. 505 that ' under the Hindu law, a father is under no legal obligation to get his daughter married ', appears to have been stated too broadly. The obligation may not exist when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f her step-mother. For the same reason where the paternal relatives of the girl refuse to incur the expenses of her marriage, whereupon her maternal uncle who had also been legally appointed her guardian, effected the marriage bona fide, he is entitled to recoup himself from the estate of the girl's father in the hands of his collateral. The property of a Hindu passing into the hands of his collateral heirs after his death, is liable for the reasonable marriage expenses of the daughter of the last holder's predeceased son. In the case of the marriage of a sister, though the duty of giving her in marriage devolves upon the brother in the absence of the father or the grandfather, its expenses are chargeable only upon the paternal estate in his hands and his separate property is not liable for such expenses." 10. However, the learned Appellate Controller, in order to support his view, relied upon a judgment of the Andhra Pradesh High Court in the case of Estate of Late S. Srinivasulu Reddy, AIP S. Sumanamma. According to the facts arising in that case on the death of Shri S. Srinivasulu Reddy, who passed away on 28-9-1965, the accountable person claimed deduction of a sum of Rs. 1,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under : ". . . the wife, being a heir of the deceased under section 8 of Hindu Succession Act, is not entitled to separate maintenance after the death of the deceased under section 22(2) of the Hindu Adoptions and Maintenance Act. She had no choate or clear right against any specific property of the deceased when he was alive in respect of her claim for maintenance and her right is only personal in nature. It is only after she files a suit and obtains a decree with a charge for her maintenance on a particular portion of the property, that the portion of the property which is charged, can be said to be charged on the estate. But so long as the right does not take that concrete or choate shape, it cannot be said that the husband cannot dispose of the property as he liked. The Appellate Tribunal was not right in law in allowing deduction towards maintenance expenses of the wife of the deceased from the estate passing on his death :" In this case, the deceased was a sole surviving coparcener of a HUF, who died intestate leaving behind him his mother (the accountable person), widow and a minor daughter. The Court was of the view that the maintenance right of the wife since it was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u Succession Act, like the present one, where the property is partitioned between the co-heirs, there is no question of division of coparcenary property among the coparceners and hence the question of provision for marriage expenses does not arise for the simple reason that the daughters also are equally entitled to a share along with their brothers in the property of their father." A reading of this judgment will clearly show that a right to claim maintenance and marriage expenses by unmarried daughters in the family at the time of partition out of joint family property is intact without any modification. 14. We have already set out the findings in the order of the Special Bench of the Tribunal in Smt. K.S. Jayam's case wherein it was stated as under : " We have considered rival contentions carefully. It appears that article 304 of Mulla's Hindu Law which provides for determination of ' the property available for partition ' before actual, notional partition can take place has not been considered as such by the learned Judges of the Madras High Court. The distinction drawn before us by the learned counsel that the provisions of the Hindu Adoptions and Maintenance Act refer t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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