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TMI Blog1987 (5) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... t family for which the deceased was the karta. When the matter was pending in appeal before the Appellate Controller an additional ground was raised stating that the share of the deceased in the HUF properties should be computed after allowing reasonable amount towards the maintenance of the wife of the deceased. The said additional ground was summarily dismissed on the ground that it was raised for the first time before the Appellate Controller and it was not raised before the Assistant Controller. No evidence of any sort was either secured or filed before the Assistant Controller of Estate Duty to decide the contention and therefore following the decision of the Supreme Court in Addl. CIT v. Gurjargravures (P.) Ltd. [1978] 111 ITR 1 the Appellate Controller rejected the additional ground. 4. Aggrieved against the order of the Appellate Controller dated 25-3-1986 the accountable person came up in second appeal before this Tribunal. Originally in the grounds of appeal the only claim made was that the claim of maintenance of the wife of deceased should have been admitted and necessary relief should have been granted. During the course of hearing additional ground was filed stating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a wife during the lifetime of her husband has got the claim for maintenance against the coparcenery property held by the coparcenery in which her husband is one of the coparceners. In support of his contention that a question of law can be raised at any time he relied on the decision of the Andhra Pradesh High Court in CIT v. Gangappa Cables Ltd. [1979] 116 ITR 778. In Gangappa Cables Ltd.'s case the true meaning of the ratio laid down by the Hon'ble Supreme Court in Gurjargravures (P.) Ltd.'s case was explained. Their Lordships of the Andhra Pradesh High Court explaining Gurjargravures (P.) Ltd.'s case held that that case applies where there was absence of material and also the claim. But when there is either material or claim then the ratio of Gurjargravure's case does not apply. He further contended that in a case when a new ground deals only with a question of law it can be raised at any time and even before the Tribunal for the first time though the said question was never raised before either of the lower authorities. He cited the decision of the Andhra Pradesh High Court in Shaik Ibrahim v. CIT [1968] 69 ITR 117. In the head note of the said decision the following is held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man is entitled to separate residence and maintenance from her husband on one or more of the grounds mentioned in the said section. Again at para 689 at page 821 the learned author stated that the widows of the members of the family are entitled to maintenance. At page 822, para 690 the learned author stated that though a widow is entitled to maintenance from her son in her character as mother, even if he is not in possession of ancestral property, a similar right against father-in-law is not admitted. The Smritichandrika expressly states that the obligation to maintain the widow is dependent on taking the property of the deceased. Where the father-in-law disposes of his property by gift or will the Madras and Bombay High Courts have held that the daughter-in-law cannot claim any maintenance from the donee or the devisee. 7. In Mulla's Hindu Law, 15th Edition, the law of maintenance as was existing prior to the coming into force of Hindu Adoptions and Maintenance Act was broadly divided into two categories. Under the first category the liability to maintain others arises from mere relationship between the parties independent of possession of any property. The second category of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate." Section 21(3) enlisted the widow of the deceased so long as she does not remarry as coming under the class of dependants. 9. In CED v. Smt. P. Leelavathamma [1978] 112 ITR 739, the then Acting Chief Justice of the Andhra Pradesh High Court delivering the judgment of the Bench held that so long as the husband is alive a wife is not a 'dependant' within the meaning of section 21. During the existence of her husband the wife's right to be maintained is proclaimed and preserved under section 18(1). Their Lordships after quoting sub-section (2) of section 22 of the Hindu Adoptions and Maintenance Act held that if dependant has obtained any share in the estate of the deceased Hindu either by testamentary or intestate succession he or she will not be entitled to maintenance from those who take the estate. The principle behind this sub-section is obvious. Once a dependant gets a share in the deceased Hindu's estate, his or her right to get maintenance comes to an end and she cannot have not only a share but also maintenance besides. They had also a D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family members. A wife would become a dependant under section 21 of the Act only after she becomes a widow and she would be entitled to maintenance only when she does not obtain any share from the property of her husband. Therefore the position contemplated in the quoted para visualises a situation where the succession opens out but does not take in a situation where the question of succession does not arise as yet. If we keep in mind the distinction between wife and widow then we can clearly understand whom the author was referring to in para 304. Para 304 clearly points out the maintenance claim of a widow but not the so-called maintenance claim of a wife. Ultimately we are inclined to hold that a wife cannot have any right of maintenance against the coparcenary property. Therefore, the contention which is sought to be impressed on us does not appear to be impressive or tenable under law. Under the circumstances, we have to hold that Leelavathamma's case decided by the Andhra Pradesh High Court in Smt. P. Leelavathamma's case which was followed by a later Division Bench decision of the same High Court in Smt. A. Suhasini v. CED [1984] 145 ITR 220 clearly governs the facts of the ..... 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