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TMI Blog1991 (8) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... r held that half of the share of the self-acquired property of the deceased was assessable in the hands of the assessee as her absolute property and assessed her income accordingly by adding half-share in the properties self-acquired and left by her deceased husband. The Appellate Assistant Commissioner upheld the decision of the Income-tax Officer holding that the Income-tax Officer had rightly assessed the one-half share of the income from the said property in the hands of the assessee. On further appeal, the Tribunal held that the lower authorities were not right in holding that the income from the property inherited by the assessee should be assessed as individual income and not as Hindu undivided family income. The Tribunal held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's Rights to Property Act, 1937 (hereinafter referred to as "the Act of 1937"). As indicated in the preamble, the Act of 1937 was intended to give better rights to women in respect of property. The provisions of section 3, dealing with devolution of property where Hindu dies intestate, which are material for the purpose of this matter, are as follows : "3. (1) When a Hindu governed by the Dayabhaga school of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Hindu joint family property devolving on a widow is the same interest as that of her husband who died intestate and, therefore, she has no defined share in respect of such interest, even when the separate property devolves on her, she would not have any defined interest in respect of such property which should be treated as a part of the Hindu undivided family property. On a plain reading of the provisions of sub-section (1) of section 3, it is clear that, in the direction of giving better rights to women in respect of property of a Hindu dying intestate, his widow is given same share as a son in respect of the separate property of her husband. The words "the same share as a son" can only mean that she will inherit "in like manner as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was governed by the incident of survivorship, the law took care to see that, when such interest devolves on the widow, its nature remains the same. This is why the interest in a joint family property of the husband which devolves on his widow would continue to have the same incidents of a joint family property and the widow does not acquire any separate or defined share in such property. In respect of interest in the joint family property which devolves under sub-section (2), since the husband could not have claimed any defined share until partition was claimed, the share of his widow would become defined only if and when she claims partition because the same interest as her husband had in the joint family property devolved on her. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tue of section 14 of that Act. We, therefore, are of the view that the one-half share in the separate property of Deviprasad M. Mehta, which devolved on his widow, namely, the assessee, became her absolute property and was, therefore, assessable in her hands and not in the hands of the Hindu undivided family as held by the Tribunal. The Tribunal had placed reliance on the decision of this court in CWT v. Harshadlal Manilal [1974] 97 ITR 86 for holding that the property which devolved on the assessee became the property of the joint Hindu family. In our view, the decision of this court in Harshadlal's case [1974] 97 ITR 86 does not warrant such an inference in respect of the separate property of a Hindu dying intestate devolving on his wid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved on the widow under sub-section (1) of section 3 of the Act of 1937, should be treated as a part of the joint family property. In this view of the matter, the decision of the Rajasthan High Court in Smt. Vidyawati Devi Rathi v. CGT [1988] 169 ITR 708, on which reliance was placed on behalf of the assessee, cannot help the assessee since that decision turned upon the provisions of section 3(2) of the Act of 1937, and, therefore, it was held that the exact share in the joint family property of the widow cannot be predicated until partition is made and till then she has a fluctuating interest in the property. In our opinion this incident of joint family property cannot attach the share of the widow in the separate property of her husband w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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