9911796707
TMI Blog1994 (3) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... the right of maintenance and, therefore, no coparcenary interest came to cease on the death of the deceased under section 7 of the Estate Duty Act, 1953 ? " The brief facts of the case are that the deceased lady was the widow of one Panthoo Lal, who died in 1928. On the death of her husband, the property passed to her. In the year 1942, she had adopted Gulab Chand as her son. Gulab Chand got married and he had four children. The deceased expired on July 9, 1977. In the estate duty proceedings a question arose as to what properties and to what extent had passed on her death. The accountable persons claimed that the deceased was not entitled to any share in the Hindu undivided family property and the entire property was of the Hindu undivide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed that the property which vested on the death of husband of Smt. Basanti Bai in 1928 was divested on adoption of Gulab Chand as her son in 1942 and the adoption related back to the date of death of the deceased in accordance with Hindu law prior to the amendment in the Hindu Adoptions and Maintenance Act, 1956. The Income-tax Appellate Tribunal has referred to articles 506 and 509(1), Mulla's Hindu Law, which read as under : Article 506 : " Adoption by widow in a joint family.----When a member of a joint family governed by the Mitakshara law dies and the widow validly adopts a son to him, a coparcenary interest in the joint property is immediately created by the adoption co-extensive with that which the deceased coparcener had, and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hindu law, it was considered that Gulab Chand became sole coparcener of all the properties left by the husband of the deceased in 1928 and the only right which the deceased had after the date of adoption was the right of maintenance during her lifetime, since she had no interest in the property of the Hindu undivided family except the right of maintenance. It was observed that under section 7 of the Estate Duty Act, no coparcenary interest ceased on her death. For determining the value of the right of maintenance which ceased on the date of death of the deceased, the matter was restored to the Appellate Controller of Estate Duty for quantifying the amount. The submission of Mr. G. S. Bapna, on behalf of the Revenue, is that the entire pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divest any person of any estate which has been vested in him/her before the adoption. In Smt. Dhani Devi and Jhavermal v. CED [1973] 89 ITR 96, it was held by this court that by a legal fiction an adopted son is like a posthumous son who is deemed to have come into existence before the death of the adoptive father so that there is no break in the continuity of the line. Therefore, at the time of the death of the deceased, the joint family will be deemed to have consisted of the deceased person, his adopted son, and his wife. The wife could not have claimed partition, only the father and son could have claimed it and she could have claimed a share in the partition. In the case of Krishnamurthi Vasudeorao Deshpande v. Dhruwaraj, AIR 1962 SC 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. This principle of relation back cannot be applied when the claim made by the adopted son relates not to the estate of his adoptive father but to that of a collateral. With reference to the claim with respect to the estate of a collateral, the governing principle is that inheritance can never be in abeyance, and that once it devolves on a person who is the nearest heir under the law it is thereafter not liable to be divested. When succession to the properties of a person other than an adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal died in the year 1928 and if the property was held by him as a Hindu undivided family property at that time the position could be a different one, than if the property was held as his individual property. The Hindu Women's Rights to Property Act, 1937, was introduced in 1937 to give better rights to women in respect of property. When a Hindu governed by any school of law other than the Dayabhaga School of Hindu law dies having at the time of his death an interest in Hindu joint family property his widow shall subject to the provisions of sub-section (3) have in the property the same interest as he himself had. Sub-section (3) of section 3 of the aforesaid Act provides that any interest devolving on a Hindu widow under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
