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TMI Blog1983 (2) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... of his death. The Asst. Controller: however, rejected the claim of the accountable person and brought to estate duty the value of the entire estate as free estate as he was of the view that as per the provisions of the Cutchi Memons Act, 1938, the privilege of the members of the Cutchi Memon community to follow the Hindu law of succession had been withdrawn. On appeal before the Appellate Controller it was contended by the accountable person that Abdul Sattar Sait had 50% interest in the joint family estate as soon as he was born and that, therefore, only the value of the remaining half of the properties should have been subjected to estate duty. The Appellate Controller, however, rejected the said contention observing that as per the Hindu law the rights of a coparcener would crystallise only at the time of the partition and proceeded to hold that the properties brought to estate duty by the Asst. Controller must suffer a reduction to the extent of 1/6th since Abdul Sattar Sait should be deemed to have been divided on the date of death of the coparcener on a notional partition in the family and that 1/6th share cannot be brought to charge as interest passing on the death of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on the death of the deceased. It was also pointed out by the accountable person that the provisions of the Shariat Act of 1937 did not touch any coparcenary right. The Appellate Tribunal considered the rival contentions and took the view that only the provisions of the Cutchi Memons Act, 1938, had to be considered for the purpose of this case, that the provisions of the Shariat Act will not apply, that as Abdul Sattar Sait was born on June 11, 1938, before November 1, 1938, when the Cutchi Memons Act of 1938 came into force, he had a right by birth to a half share in the properties of the joint family consisting of the deceased and Abdul Sattar Sait, and that right stood preserved under s. 3 of that Act, that the mere fact that four sons were born to the deceased after the coming into force of the Act will not result in the divestiture of the half share of Abdul Sattar Sait which he had acquired by birth and, therefore, Abdul Sattar Sait was entitled to a half share in the joint family properties and that the said half share cannot be taken to be property passing on death of the deceased. According to the Tribunal, on the passing of the Cutchi Memons Act, 1938, there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undefined and indefinite right is not saved by s. 3 of the Act and the right of Abdul Sattar Salt by, birth will get protection under s. 3 only when it gets crystallized by a partition and, therefore, the entire property which is inherited by all the five sons after the death of the deceased should be taken to have passed on death. Section 2 of the 1938 Act provided that all Cutchi Memons, subject, however, to the provisions of s. 3, shall, in matters of succession and inheritance, be governed by the. Mahomedan law. Section 3, subject to which s. 2 applied, is a saving provision and it provides that nothing in the Act shall affect any right or liability acquired or incurred before its commencement or any legal proceeding or remedy in respect of any such right or liability; and any such legal proceeding or remedy may be continued or enforced as if this Act had not been passed. According to s. 2, after 1st November, 1938, all Cutchi Memons would be governed in matters of succession and inheritance only by Mahomedan law. But this is subject to s. 3. Section 3, however, saves any right or liability acquired or incurred before the Act. The question is what is the right that had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, pass to them on the death of their father as envisaged by the E.D. Act and, therefore, only 1/3rd of the properties which was the share of the deceased could be properly said to have passed to the accountable persons on the death of their father. The principle laid down in the said case squarely applies to the facts of this case. As Abdul Sattar Sait, the eldest son of the deceased was before 1938, his right by birth to a half share in the joint family which existed on the (late of the commencement of the Act is saved by s. 3 of the Act and, therefore, that share cannot be taken to passed oil the death of the deceased. The learned counsel for the Revenue, however, submits that the right of a coparcener to a share in the coparcenary property will get crystallized only if a partition place and that an indefinite and oscillating right could not be taken to have been saved by s. 3 and, therefore, the entire property should be deemed to have passed on the death of the deceased. It is also planted out by the Revenue that the Cutchi Memons Act of 1938 does not bring about a notional partition between the, coparceners on the date of the coming into force of the Act so that it c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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