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1988 (3) TMI 159

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..... ro executed a Will on 23-7-1951 whereby he bequeathed the properties he inherited from his father to his son Sri Ramanarayan Patro. These properties are (i) Kesava Bagh, Whites Road, Madras-14, and (ii) House at Jarijangi Village, Narasannapetta Taluk, Srikakulam District and certain stocks and shares. Smt. Shyamala Devi, wife of late Sri Vasudeva Patro was appointed as the executrix of the Will. The deceased was a minor at that time. Up to and inclusive of the assessment year 1972-73 the income from the property 'Kesava Bagh' had been assessed in the hands of the deceased. For the first time during the proceedings for the assessment year 1973-74 a claim was advanced that the property was belonging to him and his mother in equal proportion and they should be treated as co-owners. This claim was accepted and confirmed by the AAC in his order in ITA No. 7/76-77, dated 15-2-1978. On appeal, the Tribunal set aside the order of the AAC vide its order in IT Appeal No. 279/Mds/78-79, dated 12-3-1979 and restored the matter to the AAC to examine whether the claim that the property Kesava Bagh should be treated as co-ownership property with the assessee and his mother having equal shares. .....

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..... ons of the accountable person are considered. It must be stated at once that the Supreme Court did not nullify by its decision quoted above the provisions in the Indian Succession Act. The very purpose of the Act as would be seen from the preamble was to consolidate the law applicable to intestate and testamentary succession. The said Supreme Court judgment did not render the Succession Act ineffective in cases of testamentary succession on the sole ground that the Will was not probated. As for the decision quoted by the Advocate in this regard it must be stated that it has not been properly cited before the authority. The accountable person has not placed before me the full copy of the judgment of the Supreme Court to enable me to appreciate the contentions now raised by them. In the Supreme Court's decision cited, the point at issue was different." Thereupon considering sections 187, 188, 192 and 213 of the Indian Succession Act, the Assistant Controller came to the conclusion that the claim made by the accountable persons is based on false presumptions in order to avoid the element of estate duty on the property passing on the death of late Ramanarayan Patro. Ultimately, he he .....

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..... artmental Representative, the AAC ought to be have held that the proceedings in income-tax and estate duty are different and the Assistant Controller has got powers to re-consider the issues and take a different stand from that already concluded in other tax proceedings having regard to the ratio of the decision of the Delhi High Court in the case of Jag Mohan v. CED [1972] 85 ITR 1. Another submission made by the learned Departmental Representative is that the Appellate Controller erred in not giving due credence to the fact that Sri Ramanarayan Patro enjoyed the income of the property for two decades and the question regarding co-ownership of the property was raised only in 1973-74. He further pointed out that the Appellate Controller erred in coming to the abovesaid conclusion solely on AAC's finding without going into the merits of the case himself afresh. The Departmental Representative further submitted that the Appellate Controller failed to appreciate that Smt. Shyamala Devi, mother of the deceased did not make any claim for half share in the said property before any court of law. According to the learned Departmental Representative, the deceased obtained the property absol .....

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..... executrix and she was always acting as an executrix in all the subsequent proceedings and also as a guardian to the minor and she never asserted her right as the owner of half of the property, and (ii) in the returns filed for the assessment year 1952-53 and onwards she claimed the status of HUF. Thus in the assessment years 1953-54, 1954-55 and 1955-56 she claimed her status as that of HUF. In the assessment year 1956-57 she was shown as the guardian of her son, wherein the status was taken as an 'individual'. Thus, according to the learned Departmental Representative from the years 1952 to 1956 she acted as a guardian and not as the sharer of the property. He pointed out that up to the assessment year 1958-59 the status was claimed to be that of HUF of mother, son and three unmarried daughters. According to the learned Departmental Representative thus her consistent conduct would go to show that she does not want to claim her right as a sharer in the property. In such an event, it is Ramanarayan Patro who is the full owner of the entire property known as 'Kesava Bagh' which passed on his death in entirety to his legal heirs. 11. On the other hand, the learned counsel appearing .....

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..... Such property is known as 'Kesava Bagh'. The Will was not probated by the executrix. 14. Section 213(1) of the Indian Succession Act states as under, while dealing with the unprobated will : "213. (1) No right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed." What section 213 really does, is that it lays down a rule of procedure, that rule being that a person seeking to establish his right in any court of justice as executor or legatee under a Will must have obtained the probate of the Will under certain circumstances mentioned in the section. Again the section precludes the "establishment" of a right as executor or legatee in a court of justice but does not affect the right as such for which one must indeed look elsewhere. It is thus seen that where such a right may not come up for being established in a court of law the want of a probate need not and would not affect the right of a legatee under the Will. 15. The real difficul .....

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..... the will of Pallaniappa's father and it would still be joint-family property in the hands of Pallaniappa so far as his male issue was concerned. Valliammai Achi v. Nagappa Chettiar AIR 1967 SC 1153 at 1155 (see Mantha Ram Murty's Law of Wills, 3rd Edn., p. 556). Therefore, it is quite clear that Sri Vasudeva Patro had no right to will away the joint family property in favour of his son absolutely. Thus the will executed by him on 27-3-1951 is not valid in law as far as the joint-family property "Kesava Bagh" is concerned. If that is so the law of inheritance will come into operation (i.e., of Intestate succession vis-a-vis such property). After his death on 5-1-1952 Vasudeva Patro left his widow, Smt. Shyamala Devi and his minor son, Ramanarayan Patro as his legal heirs. According to the Hindu Women's Right to Property Act, 1937 his widow, Smt. Shyamala Devi will get widow's estate or life estate in a joint-family property left by her husband and his son will get his half share absolutely in the said property. Thereafter, Smt. Shyamala Devi and her minor son were in possession of this property by letting it out to the tenants and enjoying the rental income. Smt. Shyamala Devi was a .....

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..... partial and a partial surrender is invalid even if it is to the nearest reversioner and absolute as to that part. (3) The surrender must be a bona fide surrender and not a device to divide the estate with the reversioners. (4) A surrender effected by a widow in ignorance of her rights and without realising the true position of affairs is not valid in law. 19. A surrender by a widow of her husband's estate, if otherwise valid, is not invalidated by the circumstance that the surrender stipulates or provides for a reasonable provision being made for the maintenance of the widow. 20. Now the question is whether the Department has established all the conditions enumerated above as having been satisfied for the purpose of proving that there is valid surrender or self-effacement by the widow in favour of her minor son. In order to examine this issue, we have to ascertain the facts relating to this question. 21. The fact remains that Sri Vasudeva Patro was assessed as HUF for the assessment year 1950-51. For the asst. year 1951-52, the assessment was made on the estate of Vasudeva Patro as HUF. For the assessment year 1952-53 Mrs. Shyamala Devi was assessed as HUF. There is an as .....

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..... orporation of Madras for levy of property tax for the period 2/62-63 in the name of Smt. Shyamala Devi Patro. A letter dated 11-7-1962 addressed to the Commissioner, Corporation of Madras, by Mrs. Shyamala Devi Patro was also shown to us. Smt. Shyamala Devi Patro and Shri A. Ramanarayana Patro also made a written representation on 31-1-1973 to the Chief Minister of Tamil Nadu regarding the building at No. 38, Whites Road, Madras. Lastly, a copy of the mortgage deed dt. 22-2-1973 was also produced before us. According to the said deed a mortgage loan was obtained by offering the property in question as security for the mortgaged loan and the mortgage deed was executed by Ramanarayan Patro and Smt. Shyamala Devi Patro in favour of the Egmore Benefit Society Ltd. The said deed shows that there are prior mortgages in favour of the said society created on 18-1-1968, 21-2-1968, 23-3-1968, 17-6-1968, 29-7-1968, 17-9-1968, 13-11-1969, 4-1-1969, 2-12-1969, 12-1-1970, 2-7-1970 and 23-10-1971. These facts would go to show that Smt. Shyamala Devi Patro after the death of her husband from 1952 till her death was exercising her right as full owner of the half share in the property in question. S .....

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..... hnaranga Ravu Bahadur and Shri Raja Ravu Venkata Raya Krishnaranga Ravu Bahadur by a deed of sale dated 15-2-1940 registered as document No. 336 of 1940 in the books of the Registrar of Assurances, Madras-1 and after the death of A. P. Patro in 1946 the said property devolved on his only son A. V. Patro in, I.P.S. as his sole heir who was in sole and absolute possession thereof till his death on 5-1-1952 and whereas Shri A. V. Patro died intestate leaving behind him his wife Smt. Shyamala Devi, son Ramnarain Patro and the three Vendors abovenamed being his daughters and whereas Smt. Shyamala Devi, Ramnarain Patro sold on 19-4-1975 2 grounds 780 sq. ft. along with the building thereon bearing door No. 38-B to Shri Manoramull Nahar by a Sale Deed registered as Document No. 351 of 75 in the books of the Sub-Registrar, Triplicane leaving a balance of 14 grounds 1020 sq. ft., the storied building which is lying on eastern side, out houses, garages etc., Whereas Ramnarain Patro, son of Shri A. V. Patro died intestate on 17-12-1980 leaving no issues and before his death there were divorce proceedings between Ramnarain Patro and his wife whereby they got divorce in N. J. 15 of 1977 on th .....

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