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TMI Blog1985 (9) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... (HUF) consisting of himself, his father and several other members. The Hindu undivided family owned extensive immovable properties. On May 4, 1955, there was a partition among the members of the said Hindu undivided family in which Manjunatha Gowda, who was then a minor, was allotted his share of movable and immovable properties of the Hindu undivided family. On September 13, 1971, Manjunatha Gowda died leaving behind his wife, Smt. Satyaprema, and an unmarried daughter, Kumari Yeshaswini alias Sumana. In due course, Smt. Satyaprema filed an account of the estate passing on the death of Manjunatha Gowda under the Act before the Assistant Controller of Estate Duty, Bangalore, in which, she, inter alia, claimed that the deceased had only 4/5ths share in the properties of the Hindu undivided family and the unmarried daughter had 1/5th share by virtue of section 8 of the Hindu Law Women's Rights Act, 1933 (Mysore Act No. 10 of 1933) (" the Mysore Act "), and the same had therefore to be excluded from levy of duty under the Act. On August 29, 1973, the Assistant Controller of Estate Duty completed the assessment in which he rejected the aforesaid claim of the assessee and subjecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assumption that the Mysore Act was in force in the old Mysore area and that, at any rate, section 8(1)(d) was not in conflict with the Central Act and that if the fact situation so justifies, that provision governs the claim of the assessee. We also proceed to examine the same on that basis only for purposes of this case. Sri Bhat has urged that the term " survivorship " occurring in section 8(1)(d) of the Mysore Act, a beneficial legislation, must be construed as even applying to cases of property passing on the partition and, so construed, the answer to the question must be in favour of the assessee. Sri Srinivasan, in refuting the contention of Sri Bhat, has urged that the term " survivorship ", a well known expression of Hindu law, must receive the very meaning accepted by the courts and, so construed, it was but inevitable to answer the question against the assessee. Section 8 of the Mysore Act which is material and on the construction of which the question hinges reads thus : " Section 8 : Certain females entitled to shares at partition.-(1) (a) At a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily, but whatever relates to their commensality and their religious duties and observances are regulated by the members or by the manager to whom they have expressly or by implication delegated the task of regulation (vide Virada Pratapa Ragunanda Deo v. Brozo Kishore Patta Deo [1876] ILR 1 Mad 69; 3 IA 154 (PC)). The joint family status being the result of birth, possession of joint property is only an adjunct of the joint family and is not necessary for its constitution (vide Haridas Narayandas Bhatia v. Devkuvarbai Mulji [1926] AIR 1926 Bom 408; ILR 50 Bom 443). Nor is it that all the members possess equal rights or status even though the property of the family is called joint family property. A coparcenary is a narrower body than a joint family and consists of only those persons who have taken by birth an interest in the property of the holder for the time being and who can enforce a partition whenever they like. It commences with a common ancestor and includes holder of joint property and only those males in his male line who are not removed from him by more than three degrees. Thus, while a son, a grandson, or a great-grandson is a coparcener with the holder of the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 'if either of my said sons should die without leaving a child which shall survive him', the testator could not have used the word 'survive' in its ordinary acceptation, but in the sense of 'who shall live after him'. There has been much discussion in the books as to the proper construction of the words 'survive' and 'survivor' when used in wills; but it is now settled by numerous decisions that the same rule of construction will be applied to these words as to any others, namely, that they shall be taken in their literal and ordinary import unless there is something in the context or attending circumstances which shows that they were used in a different sense. Survivor : 'Survivor' is usually applied to the longest liver of two or more partners or trustees, and has been applied in some cases to the longest liver or joint tenants and legatees, and to others having a joint interest in anything. Romilly M.R. said: 'My opinion is, that the meaning of the word "survive " or " survivor " imports that a person who is to survive must be living at the time of the event which he is to survive. I have consulted several dictionaries on this subject. I have consulted Johnson and Richard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... throw overboard the well settled principles of Hindu law. We are of the view that the construction suggested by Sri Bhat would really amount to legislation in the thin guise of interpretation which is impermissible. We are also of the view that the principles enunciated in Heydon's case (3 Co Rep 7a) or in Smith v. Hughes [1960] 1 WLR 830, noticed and dealt with by Maxwell on the Interpretation of Statutes (Twelfth Edition) under the heading " The other main Principles of Interpretation ", at pages 40 to 43, do not really bear on the construction of section 8(1)(d) of the Mysore Act and do not assist Shri Bhat. We have carefully read the ruling of the Supreme Court in Nagendra Prasad v. Kempananjamma, AIR 1968 SC 209, which affirmed the decision of a Division Bench of this court between the same parties reported as Nagendra Prasad v. Kempananjamma [1965] 1 Mys LJ 600, and the other rulings of this court and the former Mysore High Court which had occasion to interpret section 8(1)(d) of the Mysore Act noticed by the Supreme Court. We are of the view that every one of those rulings do not really help the assessee to sustain her claim. On the foregoing discussion, we hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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