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TMI Blog1986 (4) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... s near as possible to the market value, unless there is very wide variation between the value shown and estimated, it may not be possible for us to interfere with the value taken by the department in every case as if that is not the market value and the value shown by the assessee alone is the market value. Neither any principle of valuation nor any wide variation is involved in this case. We do not, therefore, wish to interfere. This ground is, therefore, rejected. 2. The next ground urged is that in arriving at the estate liable to duty a deduction of Rs. 86,750 claimed as provision for marriage and maintenance expenses of unmarried daughter should have been deducted. This claim was disallowed by the Assistant Controller on the ground that this claim did not fall within either the provisions of section 33 of the Estate Duty Act, 1953 ('the Act') or articles 304 and 440 of the Mulla's Hindu Law. This matter when it came for hearing before the Appellate Controller, even he disallowed the claim. It may be useful here to briefly refer to the contentions raises before the Appellate Controller and the reasons given by him for disagreeing with those contentions. The contention raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same footing the marriage expenses of the daughter also were not a charge on or fastened to any property of the deceased during the lifetime of the deceases. In other words according to the Appellate Controller the position of the wife with regard to maintenance is same as the position of a daughter. He did not see any difference in this position even in the case of a HUF. Thus, he.denied the claim of the assessee on the view that since the daughter like the wife is also entitled to a share in the assets of the deceased, the daughter is not further entitled to any maintenance much less for marriage expenses. It is against this decision that the accountable person has come up in appeal before us and reiterated more or less the same contentions. The departmental representative supported the view of the Appellate Controller by laying stress on the fact that the daughter being entitled to a share in the property of the deceased, she is not further entitled to the maintenance allowance nor could she claim any expenditure for her marriage. Therefore, the claim was rightly denied by the authorities below. 3. In our considered opinion the view canvassed for the department is neither jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any claim by any member of the family would not satisfy the requirements of section 39(1) because the share to be allotted in the partition of a joint family property would either be more or less if those claims are not provided for. We do not wish to go into the question as to what are the claims that are to be provided for in the case of a partition but for our present purpose, we have to see whether unmarried daughter has got any claim. In this context sub-section (3) of section 39 also becomes relevant because that section says that for the purpose of estimating the principal value of the joint family property of a Hindu family governed by the Mitakshara law, in order to arrive at the share which would have been allotted to the deceased had the partition taken place immediately before his death, the provisions of the Act are nationally applied to the whole of the joint family property as if the entire property belonged to the deceased. This sub-section (3) of section 39 which places a duty to treat the entire joint family property as belonging to the deceased for the purpose of arriving at his share has implicit in it that all allowances available and all adjustments necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers of the family. It provided that male member of the family, who is not married at the time of partition is not entitled to have a provision made on partition for his marriage expenses. But that section clearly provided that the case of unmarried daughter was different and it stands on a different footing. That article provided that her right to maintenance and marriage expenses out of the joint family property is in lieu of a share on partition. Provision should, therefore, be made for her marriage expenses. In this context the judgment of the Privy Council in the case of Rajgopala v. Venkataraman 51 CWN 829 my be seen. Article 440 lays down in the case of joint family 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 and of the daughters of male members of the family. The Hindu law texts enjoin the payment of expenses on Sanskaras or sacraments out of the joint family property. Marriage is a Sanskara. Article 437 of the Hindu Law provided that two ceremonies are essential to the validity of a marriage, one is invocation before the sacred fire and Saptapathy before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thus charged can be said to be a charge on the estate. The Andhra Pradesh High Court therefore, held that the Tribunal was not right in allowing deduction towards maintenance expenses of the wife. The department later required the Tribunal to state four questions to the High Court for its opinion out of which the first question was whether on the facts and in the circumstances of the case the Tribunal is correct in law in allowing deduction towards marriage and maintenance expenses of the unmarried daughter of the deceased from the estate passing on his death and whether there is any material to fix a higher amount than allowed by the Assistant Controller. When these questions were rejected by the Tribunal the department filed a reference to the High Court and the High Court also observed that these are questions of fact and not questions of law. In coming to this conclusion the High.Court pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fusion in the thinking process of the Appellate Controller. The daughter is not doubt entitled to a share out of the deceased's share but what we have got to see is what is the property available for partition on the deemed partition contemplated under section 39(1). At that stage the question of daughter getting a share will not arise. Therefore, that reason is inapplicable. Similarly the Hindu Adoptions and Maintenance Act makes it an obligation on the part of a Hindu to maintain his daughter as a dependent. This is clear from sub-section (3) of section 20 of the Hindu Adoptions and Maintenance Act, under which an obligation of a person to maintain his unmarried daughter is made specific, the only exception being a case where the unmarried daughter has got her own earnings or property. Thus, the provisions of the Hindu Adoptions and Maintenance Act far from supporting the revenue's case supports the assessee's plea. Thus, the argument of the Appellate Controller that the wife and the daughter are on the same footing is not correct either factually or in law. Now a somewhat similar question came up for consideration before the Calcutta High Court in the case of CGT v. Basant Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Supreme Court in the case of Venkatesh Dhonddev Deshpande v. Sou, Kusum Dattatraya Kulkarni AIR 1978 SC 1791 to fortify their conclusion. After referring to the entire case law on the subject including the Hindu Adoptions and Maintenance Act, the Calcutta High Court pointed out that the legal as well as moral obligation under the Hindu law of a HUF of incur expenses on the occasion of the marriage of an unmarried daughter is recognised by the Courts. A daughter has a right as long as the family remained joint and had properties to have her marriage expenses met out of the joint family fund. The legitimate marriage expenses of the daughter will have to be met out of the funds of the joint family. This judgment of the Calcutta High Court is a direct decision on the question that arose before us and this decision is in no way contrary to the decision of the Andhra Pradesh High Court in the case of Smt. P. Leelavathamma. In view of this decision and the textual injunctions based upon the judicial pronouncement and Sastriac law, we are of the view that the assessee is entitled to the claim that it made and its rejection is opposed to law. The property available for part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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