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TMI Blog1987 (5) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ceased with his wife constituted a smaller HUF. The deceased died on 15-5-1983. In the return filed, the accountable person claimed half share to the wife of the deceased in the smaller HUF properties. The Assistant Controller disallowed this claim and included the value of the entire property of the smaller HUF in the principal value of the estate. So far as immovable properties of the bigger HUF are concerned which were undivided, 1/5th share of the deceased was included and there is no dispute about this. On appeal, the Appellate Controller held that the wife, of the deceased had a right to reopen the partition and claim her share and this right has to be considered as a liability of the estate of the deceased. He directed the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same as she never claimed share and the right of reopening of the partition has lapsed by limitation. 4. We have considered the rival submissions. There is no dispute with regard to the immovable properties. The dispute is only with regard to the movable properties. The movable property was partitioned between the deceased and his three sons each getting 1/4th share. In the said partition no share was allotted to the wife of the deceased. The wife is entitled to a share when there is partition between her husband and his sons, as per Northern School of Hindu Law. Thus her right to a share must be taken to accrue at the partition made even though she has not claimed any share at that time. In the instant case she will be entitled to 1/5th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not to wait for its accrual till the property is actually divided, but arises even at the stage when shares in the property are declared by a preliminary decree. Therefore, the moment the preliminary decree for partition was passed in the suit the right to share in the property accrued. As already noticed, in Bhawar Singh's case, AIR 1972 MP 204, the wife was not impleaded in the suit and the preliminary decree did not mention her at all. Even so, it was held that this did not make any distinction and the principle enunciated in Munnalal's case, AIR 1962 SC 1493, applied. The same principle, in our opinion, must be applied when the partition effected is not through the agency of the court, but by the act of parties. The partition in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his estate was held by the deceased's wife, the accountable person. The estate duty could not be charged on the whole of the estate but only on 5/6ths which passed on the death of the deceased under s. 5. Even applying s. 7 and s. 39, the same result follows. The coparcenary interest held by the deceased could not include the interest which was held by wife and had there been a partition between the deceased and his wife immediately before his death, the wife would have got 1/6th share. The Tribunal was, however, wrong in holding that the interest of the wife was one half in the estate which came to the deceased on partition and that only half of the property would be deemed to have passed on the death of the deceased." Again at page 849 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and findings obtained on those questions. The Department cannot be allowed before us to argue the case of acquiescence, relinquishment or cesser of right by lapse of limitation." The above ratio would squarely apply to the instant case. In the above case it was also held that the deceased was the sole coparcener of the family but still in view of the change in the law brought about by enactment of the Hindu Succession Act she had a right to share 1/6th in the property which the deceased obtained in partition and the property that passed on the death of the deceased was only his 5/6ths share that he got on partition as 1/6th of this estate was held by the deceased's wife. Merely because the wife did not sue for partition though 17 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased is the 2/3rds share which the deceased had in the property held by him. The decision of the Gujarat High Court in Bhimraj Sarernal's case is distinguishable as in that case ' S ', his two sons B and J, his wife V and his minor daughter L constituted the members of the HUF and in the partition agreement B and J had separated accepting cash and shares in companies and V and S were only owners of the balance of the property. On the facts of that case, it was held by the Gujarat High Court that para 3 of the partition deed provided for allotment of properties between each of the two sons of S on the one hand and ' S ' and his wife on the other and S and his wife were the sole owners of the properties in question. Thus it was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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