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TMI Blog1977 (3) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... e estate to which the deceased would be entitled if there was partition on the date of death and the deceased share was only one half of the estate and that alone should be included in the dutiable estate of the deceased. The Assistant Controller negatived the contention holding that the deceased, after he became divided from his son, was the sole surviving coparcener in the Hindu undivided family and was the full owner of the estate and the widow had no share or interest in the property enjoyed by the deceased and since the deceased was entitled to a full share in the estate, the full value of the estate must be deemed to have passed on the deceased s death and duty. is leviable on the value of the entire estate. The accountable person cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the second finding of the Appellate Controller the Revenue has come up in appeal and that is the subject-matter of E.D.A. No. 23 of 1974-75. 4. We now proceed to take up the appeal filed by the accountable person (E.D.A. No. 24/Mds/1974-75). The deceased Shri Ponnuswamy died on 14 Feb, 1974 leaving behind him his wife, a son and four daughters. The deceased became divided from his son Shri Thiagarajan in the partition that took place in November, 1959. After the deceased claimed the status of H.U.F. consisting of himself, his wife and four daughters and in view of the decision of the Supreme Court in N.V. Narendranath vs. C.W.T.(1), the status claimed was granted. Before the Tribunal, the following contentions were raised on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the members of his family. 6. For the interest in the coparcenery property ceasing on death, charge is laid u/s. 7 (1) on the death of the members as cessor of interest and s. 39 (1) provides for valuation of the slice charged. s. 39 (1) introduces a fiction of notional partition immediately before death and the share that would have been allotted to the deceased is the slice for the charge. For application of s. 7 (1) and 39 (1), it must be established that on the death of the deceased, there was cessor of coparcenery interest in joint family property governed by Mithakshara School of Hindu Law. In the present case, the short question for consideration is whether there is cessor of such coparcenery interest on the death of the dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, in the present case, s. 39 (1) cannot be involved. 8. Taking up the second condition, the question arises whether the wife and the daughters of the deceased could effect a partition between themselves and the deceased. Under the Hindu Law, only an adult coparcener is entitled to demand and sue for partition of the coparcenery property. In case of partition among the coparceners, properties can be allotted to the wife and the daughters in lieu of their maintenance and marriage expenses of the daughters. Unlike a coparcener, they have no right by birth in the coparcenery property and consequently they cannot claim a right of partition. As the deceased was the sole coparcener, there could be no partition, as understood under the Hindu La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld accrue or arise by the cessor of such interest on his death would be the entire property for purpose of s. 7 of Estate Duty Act. It was further pointed out by the Supreme Court that the legal fiction created by the words "as if the sthanam property had been divided per capital immediately before the death of the sthanamdar" in s. 7(3) of the Hindu Succession Act does not cut down the sthanam property passing on the death of the sthanamdar to a notional per capital share and the fiction was introduced only for determining the respective shares for the purpose of distribution to the members of the family and heirs of the sthanamdar. On the same analogy, the cessor of interest of the deceased would be the joint family property and the fict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve passed on his death burdened with this charge and consequently, its value diminished by such amount considered as reasonable for the marriage having a regard to the status of the family, the status of the estate, etc. The Tribunal, by its order, dt. 19th July, 1975, repelled this contention by holding as under:- " s. (20)(1) of the Hindu Adoptions and Maintenance Act provides that a Hindu is bound during his or her life to maintain his or her legitimate children. s. 3, Clause B(2) of the said Act provides that maintenance in case of unmarried daughter includes also the reasonable expenses of and incident to the marriage. It will thus be seen that under the provisions of the Hindu Adoptions and Maintenance Act, the deceased was under a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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