9911796707
TMI Blog1981 (8) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... ? " The reference arises in respect of the principal value of the estate left by one Chhotelal Nanhelal who died on March 2,1967. The accountable person, Rani Bahu, is the widow of the deceased. The facts relevant to questions Nos. 1 and 2 are that the deceased, his wife, Rani Bahu, and his four sons constituted a joint Hindu family. One of the sons died in 1944 leaving a grandson. The grandson stepped into the shoes of his father. On November 11, 1950, there was a partition by a surrender deed executed between the deceased and his three sons and the grandson of the pre-deceased son. The surrender deed gave particulars of the property which was allotted to the deceased. Clause (3) of the surrender deed stated that the deceased relinquished all his rights and other claims over the remaining assets of the joint family property. The sons and the grandson likewise declared that they had no claim or share in the property allotted to the deceased. The deceased and his wife continued as members of a joint Hindu family after the partition. The Tribunal held that although the deceased was the sole coparcener in the joint Hindu family consisting of himself and his wife, yet having regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that if a female .Hindu was possessed of any right which could be described as property in the generic sense, the same became vested in her as a full owner in spite of the act that the right was not recognised as property under the strict Hindu law. Section 14 is retrospective and it is immaterial for the application of this principle whether such a right was acquired before or after the commencement of the Act. This is bow s. 14 was interpreted the Supreme Court in Munnalal v. Rajkumar, AIR 1962 SC 1493. In that case, it was held that a share allotted to a Hindu female in a preliminary decree passed before the commencement of the Act was property possessed by her although there was no division by metes and bounds and that this property vested in her absolutely after the commencement of the Act. The Supreme Court expressly laid down that the rule of law applied by the Privy Council in Pratapmull's case, AIR 1936 PC 20, that till actual division of the share declared in her favour by a preliminary decree Hindu wife or mother was not recognised as owner could not be applied after the enactment of Hindu Succession Act. In that context the court observed (p. 1500) : " It cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The same principle, in our opinion, must be applied when the partition effected is not through the agency of the court, but by the act of parties. The partition in the instant case was effected by a deed of surrender executed on November 11, 1950. The wife was entitled to 1/6th share in the joint family property that was divided by the said partition between the deceased and his sons and a grandson of a predeceased son. The surrender deed did not mention her at all and no share was allotted to her. This fact, however, did not deprive the wife in getting the right to her share which she could have enforced by instituting a suit for reopening the partition. The right to get 1/6th share in the joint family estate which accrued to her at this stage was property within the meaning of s. 14 of the Hindu Succession Act and vested in her absolutely from the date of commencement of the Act. This right to get 1/6th share was in the entire property which, after the partition, came separately in the hands of the deceased and the three sons and a grandson. The wife did not sue for partition. She lived as a member of the joint Hindu family with her husband, the deceased. She was not a coparc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igger HUF. It was not a case, of a division between the deceased and his sons where the deceased's wife was not allotted any share. In the other three cases, the persons whose estates were subjected to estate duty had died before the commencement of the Hindu Succession Act and, therefore, the question of application of s. 14 of the Act could not arise. Indeed, in the Bombay case of Manohar Vithal Velankiwar, s. 14 was sought to be applied by the accountable person but its application was negatived on the ground that the death of the owner of the estate had taken place before the commencement of the Act. The learned standing counsel also referred to the circumstances that the wife did not claim any share or sue for partition during the lifetime of the deceased. This fact, in our opinion, would not make any difference. There was no case of relinquishment advanced by the Department in the courts below. Merely by standing by or by not raising any objection, woman does not lose her Tight to get a share and such a conduct does not amount to acquiescence or relinquishment. It was so held by the Privy Council in Ganesh Dutt Thakoor v. Jewach Thakoorain [1904] ILR 31 Cal 262. This case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty and the conclusion could be supported on that admission. The learned judges towards the end of para. 8 of the judgment in Ramkunwar Bai's case said (p. 856 ) : " It is only the deceased's share in the joint Hindu family which; admittedly half, will be the property which passed on his death. " These observations give rise to the inference that the deceased's share was admitted to be half and it was not contended that he owned the entire joint family property. The learned counsel for the accountable person also relied upon the decisions of the Supreme Court in Gowli Buddanna v. CIT [1966] 60 ITR 293 and N.V. Narendranath v. CWT [1969] 74 ITR 190. These decisions relate to the question of status. In Gowli Buddanna's case, A, his wife, his two unmarried daughters and B, his adopted son, constituted an HUF. On A's death, the question arose whether the property ceased to be the joint family property and whether, when B was the only male member in the family, the family could be assessed as an HUF under the I.T. Act. The Supreme Court held that under the Hindu law it is not necessary for constituting an HUF that there must be more than one male member and such a family may c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip which reconstituted the firm. It was wholly unconnected with the gifts made to the donees. Section 10 of the E.D. Act which was sought to be applied by the Department has no application here. In CED v. C.R. Ramachandra Gounder [1973] 88 ITR 448 (SC), the deceased was a partner in firm. He transferred a sum of Rs. 20,000 each to the credit of his five sons in the firm's books. He also wrote to the five sons informing them of the transfer. The sons did not withdraw their amounts from the firm. The amounts continued to be invested in the firm for which interest was paid to them. On these facts it was held that there was unequivocal transfer of Rs. 20,000 to each of the sons and the donees bad retained possession and enjoyment of the amounts transferred to them to the entire exclusion of the possession and enjoyment of the donor. This case and similar other cases were approved in CED v. R. V. Viswanathan [1976] 105 ITR 653 (SC). Reference may also be made here to a decision of a Division Bench of this court in Smt. Pannabai v. CED, MCC No. 531 of 1973, dt. 19-11-79 (see [1983] 142 ITR 856 , which followed these cases. It is clear to us that s. 10 was not applicable here and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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