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TMI Blog1969 (12) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ting of herself, and her three sons. The Central Board of Revenue, agreeing with the Estate Duty Officer upheld the inclusion as warranted by section 7(1) and dismissed the appeal from the assessment order. The Board held the view that the Hindu widow's estate created by section 3(2) of the Hindu Women's Rights to Property Act, 1937, was an interest in property which ceased on the death of the widow attracting duty, and that Attorney-General of Ceylon v. Arunachalam Chettiar had no application to such a case. The original reference to this court was of the following three questions: " 1. Whether, on the facts and in the circumstances of the case, one-fourth share of the deceased in the joint family properties, to which she was entitled under section 3 of the Hindu Women's Rights to Property Act, 1937, was correctly included in her estate as property deemed to pass on her death under section 7 of the Estate Duty Act, 1953 ? 2. Whether the Estate Duty Act, 1953, in so far as it seeks to levy duty on agricultural lands, is ultra vires of the legislative powers of the Union Legislature? 3. Whether, on the facts and in the circumstances of the case, the accrued interest on fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uliar character and incidents. Though the widow takes the same interest as her husband had as a coparcener, such interest in her hands is, however, precisely not the same in its character and incidents as that of her husband at his death. This aspect has been judicially determined in several cases of which it will suffice to refer only to the recent ones. In Satrughan v. Subujpari, it is observed : " The interest of the widow arises not by inheritance, nor by survivorship, but by statutory substitution : Lakshmi Perumallu v. Krishna venamma ...... By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been drawn to Satrughan v. Sabujpari expressed much the same view as to the character of the widow's interest under section 3(2) : The effect of the Act was, therefore, to give a Hindu widow a better right in respect of property, to wit, she will have, on the death of her husband, who was a coparcener, the same interest in the joint family property as her deceased husband had, subject of course to the limitation that the interest so devolving on her shall be a Hindu woman's estate and is known to the Hindu law with the right superadded of claiming partition as a male owner. The Act does not make her a coparcener, and the basis of her right is not right by birth but by statute." It was further pointed out in this case that the widow having the interest under section 3(2) was not merely entitled to a right to demand partition, but was within her rights to interdict an alienation by a coparcener of the joint family property, and that the interest she became entitled to under the statute was an interest in property. The widow in this reference had never asked for partition. On her death, therefore, her interest merged in the coparcenary, of which her sons were coparcener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (1) of a cesser benefit in respect of coparcenary interest, but even so we are of opinion that the scheme of interpretation adopted by Attorney-General of Ceylon v. Arunachalam Chettiar would still govern the construction of section 7(1). But for the inclusive part of section 7(1), and the related povisions in the Indian Act, the provisions of the Ceylon Estate Duty Ordinance, 1919, specially section 7, 8(1)(a) and (b) as.well as section. 17(6), are in Pari materia with corresponding provisions of the former Act. Let us scrutinise the material provisions of the Estate Duty Act, 1953. " Property " is defined to include, of course, any interest in property, moveable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also any property converted from one species into another by any method included in the definition of the expression " property passing on the death " is property passing either immediately on the death or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation. Pausing here for a moment, we may observe that the interest a widow h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he whole income of such property ; and (b) in case the interest extended to less than the whole income of the property, the value of the benefit should be the principal value of an addition to the property equal to the income to which the interest extended. It would be proper, and necessary, in our opinion, to understand the words "property ", "interest " and " benefit " in the context and in the light of these provisions. It follows that though property, or an interest in property, may well be included in the definition of the term "property ", still it may or may not be so for purposes of a particular section in the Act. For instance, it is only property that passes in the sense of passing hands by way of inheritance, or other form of devolution, which seems to attract section 5. Likewise, for purposes of section 6, it must be property which the deceased at the time of his death was competent to dispose of. So also, for the application of the first part of section 7(1), it should be such interest in property, as on its cesser the benefit that accrues or arises should be referable to the whole or less than the whole income of the property. The implication is that if this measu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot properly be regarded as an interest in property within the meaning of section 7(1). Further, we fail to see what benefit accrues or arises, on the cesser of her interest. The income of the joint family properties is available to the coparcenary both before and after her death. Apart from that, the scheme of the statute, in the light of section 40(b), is that any interest in property not capable of measurement in terms of income is not within the purview of section 7(1). Attorney-General of Ceylon v. Arunachalam Chettiar, supports this view. In Gartide v. Inland Revenue Commissioners, with reference to section 7(7)(a) and (b) of the English Act, which corresponds to section 40(a) and (b) of our Act, it was observed at page 718 : " This shows that for the cesser of an interest to give rise to a charge for duty, it must be possible to say of the interest that it extended to the whole income, or to a definite part of the income. This notion of definite extension is, in my opinion, vital to the understanding and working of section 2(1)(b) and consequently of section 43 of the Act of 1940." Section 2(1)(b) is in pari materia with the first part of section 7(1) of the Indian Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n's Rights to Property Act, 1937, not by any right by birth, but by force of the statute. The basis of her right is not her birth, but the statute. Nor does her interest under section 3(2) devolve on the coparcenary on her death ; but it merges with the coparcenary property, in that event. In the same case which we just now noticed, the Supreme Court pointed out : " If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate, her interest will merge into the coparcenary property. " It is clear, therefore, that the interest of a widow under section 3(2) of the said Act is not coparcenary interest within the meaning of section 7(1). It is true that the expression " coparcenary interest " has been used in the sub-section even in respect of joint family property of a Hindu family governed by the Marumakkattayam or Aliyasantana law. In the context, that expression only means as apparently Mammad Koyi v. Assistant Controller of Estate Duty, a case of a Mohamedan tarwad, was inclined to think. But we see no justification why the expression " a coparcenary interest in the joint family property of a Hindu famil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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