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TMI Blog1977 (3) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... m the statement of the case sent up by the Tribunal. However, Sri Dasaratharama Reddy states that he left behind him his another as well, who is the accountable person. Even if the mother was left behind, that does not make any difference as far as the present questions are concerned because no deduction is claimed on her account. We, therefore, proceed to consider these two cases on the basis of the claims made on behalf of the daughter and the wife alone. The accountable person contended before the Assistant Controller that a Hindu was under a legal obligation to maintain his wife, and also to make provision for the maintenance and marriage of unmarried daughters. Therefore, the deductions claimed could be allowed as debts and encumbrances under section 44 of the Estate Duty Act, 1953. It was pointed out that the deceased was under an obligation to maintain his wife and minor daughter under the Hindu Adoptions and Maintenance Act, 1956, and that right did not come to an end with his death. The obligation was fastened on the property of the deceased. The Assistant Controller held that these allowances could not be brought under section 44 of the Estate Duty Act as debts and encu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowed by the Assistant and Appellate Controllers. The other part of the appeal was in regard to the quantum of the amount that should be set apart and deducted as the provision for the daughter's maintenance and marriage. It was contended that the amounts sought to be deducted were calculated on the basis of Jellioo's formula and, therefore, Rs. 1,50,000 was a reasonable claim for the marriage expenses of the five year old daughter. Likewise, the maintenance claim for the daughter was also justified. In the appeal it was urged that limiting the above to Rs. 20,000 was unjustified. The Appellate Tribunal rejected the claim of the accountable person that these deductions could be made under section 44 of the Estate Duty Act. It, however, proceeded to consider the provisions of sections 5 and 6 of that Act. Thinking that the deceased was the sole surviving male member of the Hindu joint family, amounts which were required for defraying the marriage expenses of his minor daughter and also amounts which were required to meet the maintenance expenses of that daughter and also the widow had to be deducted. In the opinion of the Tribunal, that was because, under the Hindu law, the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld the principle, rightly or wrongly, of deducting a sum representing reasonable provision for the maintenance and marriage expenses of the minor daughter. He thought that Rs. 20,000 would be a proper amount to meet the two requirements Therefore, he directed deduction of this Rs. 20,000 from the total value of the estate of the deceased. The Appellate Controller upheld the allowance made by the Assistant Controller. The Tribunal did not interfere with the principle laid down by the Assistant Controller and upheld by the Appellate Controller in regard to making a provision for maintenance and marriage of the daughter. In so far as the daughter was concerned, the only point of departure made by the Appellate Tribunal was in regard to the quantum of the marriage expenses and maintenance. Having regard to the circumstances, it thought that a sum of Rs. 1,00,000 would be proper provision for marriage expenses and a sum of Rs. 10,000 per year would be proper provision for the maintenance of the daughter. The Tribunal decided these questions in so far as the daughter was concerned on consideration of the facts. Therefore, it felt that no question of law arose out of its findings in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the claim on behalf of the wife it made incidental references to the claim on behalf of the daughter also. But reading the order of the Tribunal and the statement of the case sent up to this court, it is patent that it wag concerned only with the quantum of the provision that should be made for the daughter. That quantum was fixed by the Tribunal on the facts of the case as it has itself pointed out. Therefore, no question of law in so far as the daughter was concerned was decided by the Tribunal. It cannot, therefore, be said that any question of law would arise in respect if the claim on behalf of the daughter. No question of law as such arises from the order of the Tribunal. Therefore, agreeing with the Tribunal's view, we must hold that questions 1 and 2, which are sought to be referred in E.D.C. No. 16/76, are not questions of law and are only questions of fact. Therefore, this estate duty case is dismissed but, in the circumstances, without costs. Then remains E.D.C. No. 6/75 which is concerned with questions 3 and 4. They were treated as questions of law by the Tribunal and it has itself referred these two questions for the opinion of this court. In so far as question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the wife cannot be deducted from the value of the estate. Sri. Dasaratharama Reddy for the accountable person, however, urges before us a new line of argument to support the conclusion of the Tribunal that the amount representing the maintenance claim of the wife can be deducted. His arguement is that a Hindu wife is entitled to be maintained by her husband so long as she is alive. Then when the husband was alive she had a right to claim maintenance and that maintenance should be in accordance with the resources of the family and its status. That amount which represents the value of the claim of the wife for maintenance is, therefore, deductible from the value of the estate. We are not persuaded to accede to this argument of the learned counsel. We may here refer to the relevant provisions of the Estate Duty Act and the Hindu Adoptions and Maintenance Act. Though the Tribunal referred to section 5 of the Estate Duty Act, it has no direct bearing on the present question because it is only a charging section. It is only section 6 that is material for the present purpose. It says that property which a deceased was at the time of his death competent to dispose shall be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate. " That means, if a dependant has obtained any share in the estate of a deceased Hindu either by testamentary on intestate succession, he or she will not be entitled to maintenance from those who take the estate. The principle behind this sub-section is obvious. Once a dependant gets a share in the deceased Hindu's estate, his or her right to get maintenance comes to an end and she cannot have not only a share but also maintenance besides. There is no doubt in this case that the wife, who on the death of her husband became a widow, is entitled to a share under section 8 of the Hindu Succession Act. A Division Bench of this court in Kameshwaramma v. Subramanyam, AIR 1959 AP 269, after a combined reading of sub-sections (1) and (2) of section 22 of the Hindu Adoptions and Maintenance Act, observed at page 271 : " A combined reading of the provisions of sub-sections (1) and (2) indicates that while sub-section (1) imposes a liability on a heir and confers a correlative right on the dependant to claim ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration and without notice of the right. Basing his contention on these provisions, Sri Dasaratharama Reddy contends that we will have to take into consideration the provision as it existed just before the demise of the husband. At that time, as declared by section 18 of the Hindu Adoptions and Maintenance Act, the wife was certainly entitled to be maintained by the husband. If the principle of section 39 of the Transfer of Property Act and the provisions of section 28 of the Hindu Adoptions and Maintenance Act are applied to that situation, the wife was certainly entitled to claim maintenance from her husband. That amount which could have been a reasonable provision for her maintenance could not form part of the estate and the husband could not have transferred, even if he wished, the entire estate. His right to sell or alienate the property was limited to the extent which did not affect the right of his wife to receive maintenance from him. Therefore, the learned counsel urges that that amount which represents her maintenance claim should be deducted from the value of the estate for the purpose of the estate duty. This argument is based on an erroneous assumption that the wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the widow's claim, the wife's right to be maintained during the lifetime of her husband cannot be different. Clearly it was in an inchoate form and it is not charged on and fastened to any property or a portion of the properly belonging to her husband. The decisions relied on by Sri Dasaratharama Reddy in Chandramma v. Venkatareddi, AIR 1958 AP 396, and Ramaswamy Gounder v. Baghyammal, AIR 1967 Mad 457, deal with different situations where there was a suit for maintenance and a consequential charge was prayed. It was in that context the courts considered the scope of section 39 of the Transfer of Property Act. They do not help in answering the question which is placed before us. We have no hesitation in holding, in the light of the aforesaid reasoning, that though the wife has a right to be maintained by the husband during her lifetime, that right has no choate connection with the property of the husband. Consequently, no deduction can be made on that claim of the wife to be maintained. After his death under section 8 of the Hindu Succession Act she gets a share and, following the principle of sub-section (2) of section 22 of the Hindu Adoptions and Maintenance Act, she ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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