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TMI Blog1976 (6) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax Circle, by his order dated August 31, 1964, assessed the principal value of the estate of the deceased, Hanuman Prasad, at Rs. 3,00,416 in respect of his 1/3rd interest ceasing on his death in the joint family property of the said Hindu undivided family including a gift of Rs. 12,540 and determined Rs. 2,01,952.26 as the amount payable on account of estate duty. Against the said order, the petitioner preferred an appeal to the Appellate Controller of Estate Duty, Calcutta. During the pendency of the appeal, the respondent No. 1 served a notice upon the petitioner proposing to rectify a mistake apparent from the record. It was alleged that in assessing the duty payable in respect of the estate of the deceased, Hanuman Prasad, his 1/3rd interest in the undivided family had been taken into consideration but for the purpose of aggregation under section 34(1)(c), the interest of the lineal descendants of the deceased in the joint family property had not been considered. Thereafter, the respondent No. 1, by his order dated January 7, 1965, aggregated the 2/3rds share of Satyanarayan and his son, Bhagawati Prasad, with the 1/3rd interest of the deceased and enhanced the duty, overrul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the clauses of section 62(1) of the Act. It was observed by the Appellate Tribunal that if the order under section 61 was not properly passed, the accountable person would have all other remedies other than those under section 62. The petitioner, thereafter, moved this court under article 226 of the Constitution against the said order of rectification of the respondent No. 1 and obtained the present rule on April 29, 1968. Section 5 of the Act is the charging section. Sub-section (1) of section 5, inter alia, provides that in the case of every person dying after the commencement of the Act there shall be levied and paid upon the principal value a duty called " estate duty " at the rate fixed in accordance with section 35. Section 7(1) provides, inter alia, that property in which the deceased or any other person had an interest ceasing on the death of the deceased shall be deemed to pass on the deceased's death to the extent to which a benefit accrues or arises by the cesser of such interest including, in particular, a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara law. Section 39(1) lays down that the value of the benefit accrui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal descendants of the deceased shall be aggregated with the property passing on the death of the deceased so as to form one estate and estate duty shall be levied thereon at the rate or rates applicable in respect of the principal value thereof. The lineal descendants of Hanuman Prasad are his son, Satyanarayan, and his grandson, Bhagawati Prasad. Satyanarayan, his son and his daughter constituted the smaller Hindu undivided family. According to the true notion of an undivided Mitakshara family, no individual member of that family, whilst it remains undivided, can predicate of the joint property, that he--that particular member--has a certain definite share, one-third or one-fourth. Partition, according to that law, consists in a numerical division of the property ; in other words, it consists in defining the shares of the coparceners in the joint property ; an actual division of the property by metes and bounds is not necessary (Appovier v. Rama Subba Aiyan [1866] 11 MIA 75 (PC)). In order to ascertain the shares of the lineal descendants of Hanuman Prasad a notional partition of the smaller Hindu undivided family is also contemplated between Satyanarayan and his son, Bhagawati P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayan's wife for the purpose of aggregation under section 34(1)(c). The shares of the lineal descendants which are to be aggregated with the shares of the deceased in the joint family property are 1/9th + 1/9th = 2/9ths, as stated already. Before I part with this case, I may dispose of one technical objection raised on behalf of the respondents. It is contended that there was an alternative remedy for challenging the propriety of the order of the respondent No. 1 under section 64 of the Act, and as the petitioner has not availed himself of that remedy, the writ petition was not maintainable at his instance. It is now well settled that though the existence of an alternative remedy is a bar to the granting of reliefs under article 226 of the Constitution, yet it is not in absolute bar. It depends on the facts and circumstances of each case whether this court should exercise its jurisdiction under article 226 when there is an alternative remedy available to the petitioner. In the instant case, the petitioner admittedly challenged the propriety of the order of the respondent No. 1 passed under section 61 before the Appellate Controller and thereafter before the Appellate Tribunal, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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