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TMI Blog1997 (4) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... UF continued even after the death of Shri Lakhmichand. Subsequently, Smt. Kanchanbai died on 4-3-1977. At the time of her death, the family consisted of Smt. Kanchanbai, her son Parsamal who was the Karta of the family, Smt. Suganbai wife of Parasmal and master Pankaj, minor son of Parasmal. The account of the estate of late Kanchanbai was filed by Parasmal. In this statement 50 per cent of the HUF property was shown as passing on the death of Smt. Kanchanbai under protest on the ground that the deceased was entitled to half share in the HUF properties in case of partition but since no such partition took place during her lifetime, no property can be said to have passed on her death. As such, no part of the HUF property is includible in the principal value of the estate of the deceased for the purpose of estate duty. The contention of the AP was not accepted by the Assessing Officer and he had concluded that in the notional partition at the time of death of Shri Lakhmichand, Smt. Kanchanbai acquired 1/3rd share in the HUF property. He also held that out of 1/3rd share of her husband she would get 50 per cent share and the remaining 50 per cent share would go to Parasmal. Thus, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the apex Court in the case of State of Maharashtra v. Narayan Rao Sham Rao Deshmukh [1987] 163 ITR 31/[1985] 22 Taxman 38 in which their Lordships have held that in case of death of the co-parcener of the HUF his share is carved out from the family property and the balance of the estate will remain vested in the HUF. This view was also taken by the Allahabad High Court in the case of Maharani Raj Laxmi Kumari Devi v. CED [1980] 121 ITR 1002. Shri Goyal also submitted that the Hindu Woman's Right to Property Act, 1937 was repealed as soon as the Hindu Succession Act, 1956 came into force. The death of Smt. Kanchanbai took place when the said Act was repealed and in its place the Hindu Succession Act, 1956 came into force along with well established principles of Hindu law into the matter of partition. There is a mark difference as to the scope of Hindu widow under the Hindu Woman's Right to Property Act and that under Hindu Succession Act, 1956. Their Lordships of the Hon'ble Supreme Court have observed in the case of CED v. Alladi Kuppuswamy [1977] 108 ITR 439 that before the Hindu Succession Act, 1956, she had the characteristics of a widow's estate in her interest in the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars to us that while adjudicating the issue that how much share of the deceased, Smt. Kanchanbai would pass on her death, the Assessing Officer has squarely relied on the judgment of the Apex Court in the case of Gurupad Khandappa Magdum. In that case their Lordships of the Hon'ble Supreme Court held that in order to ascertain the share of the heirs in the property of a deceased coparcener of an HUF, it is necessary, in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property by doing that alone, one can determine the extent of the heir's share. Explanation 1 to section 6 of the Hindu Succession Act, 1956, 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. Their Lordships have further held that the widow's share in the coparcenary property must be ascertained by adding the share to which she would be entitled at a notional partition immediately before her husband's death and the share which she would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amily property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. As already observed, the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. We have already noticed that in the case of a Dayabhaga family which recognises unity of possession but not community of interest in the family properties amongst its members, the members thereof do constitute a family. That might also be the case of families of persons who are not Hindus. In the instant case, the theory that there was a family settlement is not pressed before us. There was no action taken by either of the two females concerned in the case to become divided from the remaining members of the family. It should, therefore, be held that notwithstanding the death of Sham Rao, the remaining members of the family continued to hold the family properties together though the individual interest of the female members thereof in the family properties had become fixed." 7. The aforesaid judgment of the Apex Court was followed by the Allahabad High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m her right to maintenance and can take her share provided there is a partition in the family. She cannot by virtue of a right claim partition in the family. After careful perusal of the aforesaid judgments and the relevant provisions of section 6 and section 4 of the Hindu Succession Act, the legal position has become clear that the Hindu Woman's Right to Property Act, 1937 was repealed by the enactment of Hindu Succession Act, 1956 which has the over-riding effect over any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act. The share of the coparcener at the time of his death is to be identified and carved out by making a notional partition and that interest of the coparcener shall be devolved by testamentary or intestate succession, as the case may be, under this Act and not by survivorship if the deceased is survived by a female relative, specified in clause-I of the Schedule, or male relative specified in that clause, who claims, through such female relative, the female member of the Hindu Undivided Family can claim the partition at that time, but if she does not opt for partition, her i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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