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TMI Blog1977 (5) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... section 39 of the Act. The interpretation of section 40 of the Act is not free from difficulty, but as the present case squarely falls within the ambit of section 7(1), latter part, and sub-section (2) of section 7 of the Act which attracts section 39, it is not at all necessary for us to enter into the complex domain of the scope and ambit of section 40 of the Act in this case. The result is that the appeal is allowed, the judgment of the High Court is set aside and the question referred to the High Court is answered in the affirmative - - - - - Dated:- 3-5-1977 - Judge(s) : N. L. UNTWALIA., S. MURTAZA FAZAL ALI., P. N. BHAGWATI JUDGMENT The judgment of the court was delivered by FAZAL ALI J.--This appeal by certificate is directed against a Full Bench judgment of the Madras High Court dated December 5, 1969--Alladi Kuppuswami v. Controller of Estate Duty, Madras [1970] 76 ITR 500 (Mad)--by which the reference made to the High Court by the Central Board of Revenue was answered in favour of the accountable person and against the revenue. The case involves an interesting and important question of law in respect of the ambit and scope of sections 7(l) and (2) as also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld the order of the Assistant Controller of Estate Duty. Thereupon the respondent moved the Board of Revenue to make a reference to the High Court of Madras for decision of the questions of law involved in the case. The Board accordingly referred the following questions to the High Court : " (1) Whether, on the facts and in the circumstances of the case, one-fourth share of the deceased in the joint family properties, to which she was entitled under section 3 of the Hindu Women's Rights to Property Act, 1937, was correctly included in her estate as property deemed to pass on her death under section 7 of the Estate Duty Act, 1953 ? (2) Whether the Estate Duty Act, 1953, in so far as it seeks to levy duty on agricultural lands, is ultra vires of the legislative powers of the Union Legislature ? (3) Whether, on the facts and in the circumstances of the case, the accrued interest on fixed deposits and Government securities up to the date of death of the deceased was correctly included in her estate under section 34(2) of the Estate Duty Act, 1953 ? " Although three questions had been referred to the High Court by the Board, at the hearing of the appeal the respondent gave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death.--(1) Subject to the provision of this section, 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, Marumakkattayam or Aliyasantana law. (2) If a member of a Hindu coparcenary governed by the Mitakshara school of law dies, then the provisions of sub-section (1) shall apply with respect to the interest of the deceased in the coparcenary property only-- (a) if the deceased had completed his eighteenth year at the time of his death, or (b) where he had not completed his eighteenth year at the time of his death, if his father or other male ascendant in the male line was not a coparcener of the same family at the time of his death." It would be seen that section 7(1) consists of two parts--the first part refers to the interest of the deceased which ceases on his death and according to this part two conditions are necessary before there is a passing of the interest-- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges by bettering the rights of a Hindu widow and conferring on her the same interest as possessed by her husband. Sub-sections (2) and (3) of section 3 of the Act of 1937 run thus : " (2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner." The words " the same interest as he himself had " in sub-section (2) of section 3 of the Act of 1937 clearly indicate that the statute gave effect to the well-settled doctrine of Hindu Shastric law that the persona of the husband after his death continues through his wife who is the surviving half of the husband and the husband continues to live through the widow so long as the widow is alive. It was this concept of the Hindu law which was sought to be recog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCR 26, 33 ; AIR 1965 SC 825, 829 this court reiterated that a Hindu widow was the surviving half of her husband and so long as she was alive the husband continued to live in her. This court observed as follows: " The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law, become a coparcener, she being entitled to claim partition of the joint family property is in the same position in which her deceased husband would have been in the matter of exercise of that right. That is to say, according to these decisions, her interest is a fluctuating one and is liable to increase or decrease according as there are deaths in or additions to the members of the family or according as there are accretions to or diminutions of the property. In our opinion these decisions lay down the law correctly." It may be pertinent to note that in the aforesaid case the court was considering the nature of the interest which a widow derived by virtue of the statutory substitution contained in section 3(2) of the Act of 1937. It was also pointed out that like other coparceners of a Hindu coparcenary the interest of a widow until separated by a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener, though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so long as that estate enures ...... She has still power to make her interest definite by making a demand for partition, as a male owner may. If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property." Again this court did not approve of the assumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, like her husband, the widow also is entitled to effect severance of the joint status of the family by an unequivocal expression of intention to separate;... that in case the widow does not exercise her right of partition and dies without expressing any intention to separate, the interest of the husband, which she enjoyed, goes by survivorship to the other members of the joint family." We find ourselves in complete agreement with the observations made by the Patna High Court to which one of us (Untwalia J., as he then was) was a party. The view taken by the Patna High Court in the aforesaid case was later on approved by a Full Bench of the Patna High Court in Mt. Khatrani Kuer v. Smt. Tapeshwari Kuer AIR 1964 Pat 261 [FB]. In State Bank of India v. Chamandi Ram [1969] 3 SCR 681, 686; AIR 1969 SC 1330, 1333 this court, while dealing with the incidents of Hindu coparcenary, observed as follows : " According to the Mitakshara school of Hindu law all the property of a Hindu joint family held in collective ownership by all the coparceners in a quasi-corporate capacity ...... The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich she might receive until partition is made, her dominion extends to the entire property conjointly with the other members of the coparcenary, her possession and enjoyment is common, the property cannot be alienated without the concurrence of all the members of the family, except for legal necessity, and like other coparceners she has a fluctuating interest in the property which may be increased or decreased by deaths or additions in the family. It is manifest that she cannot fulfil the first condition, because she enters the coparcenary long after she is born and after she is married to her husband and acquires his interest on his death. Thus, short of the first condition, she possesses all the necessary indicia of a coparcenary interest. The fact that before the Act of 1956 she had the characteristic of a widow-estate in her interest in the property does not detract any the less from this position. It must follow as a logical corollary that though a Hindu widow cannot be a coparcener, she has coparcenary interest and she is also a member of the coparcenary by virtue of the rights conferred on her under the Act of 1937. There is yet another important aspect of the matter whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no application here where we are concerned with the concept of a Hindu coparcenary which is totally alien to the estates contemplated under the English Acts. For these reasons, therefore, we are clearly of the opinion that the two cases relied upon by the High Court do not appear to be of any assistance in deciding the points at issue in the present appeal, and the High Court was in error in basing its decision on the aforesaid cases ignoring the decisions of this court as also the peculiar and special provisions of the Act. Finally, it was vehemently contended by Mr. Sastri for the respondent that the right of a Hindu widow under the Act of 1937 was merely a statutory substitution of a new status by her introduction into the coparcenary and she could not be treated either as a coparcener or a member of the coparcenary or to possess any kind of coparcenary interest. While we agree that the widow after the introduction in the coparcenary could not be held to have become a coparcener, because one of the essential characteristics of a coparcener, namely, acquisition of interest by birth, is wholly wanting in her case, yet when the legislature which was fully aware of the status of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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