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TMI Blog1987 (9) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... y property and therefore, no property passes on her death, which is to be subjected to estate duty. Reliance was placed on the decision in the case of CED. v. Smt. Anari Devi Halwasiya AIR 1972 All, 179. The Asstt. Controller of Estate Duty did not accept the claim of the AP and thereby rejected its contention referred to above relying on section 3(2) of the Hindu Women's Right to Property Act, 1937 and Hindu Succession Act, 1956 holding therein as under : "In this connection it would be seen that u/s. 3(2) of the Hindu Women's Right to Property Act, 1937. the widow of a member of a Hindu Undivided Family is put in the place of her husband and her husband's interest is the joint family property, though indefinite would vest immediately upon his death in the widow. The widow who acquired the interest of her deceased husband u/s. 3(2) of the Hindu Women's Right to Property Act, 1937 and who was possessed of the said interest on the coming into force of the Hindu Succession Act, 1956 becomes the absolute owner of the estate by option of section 14 of the said Act and thus she would have all the rights of a full owner to possess, manage and enjoy exclusively and of disposal either by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lady inherited from her husband, is deemed to pass under the E. D. Act. 6. In appeal, the CED (Appeals) in allowing the appeal held that the female members of a joint family have no interest in the properties of the HUF and it is only when there is an actual partition that they would get a share in the said property, that as there is no pre-existing right over the joint family property, the question of her interest in the joint estate passing on her death does not arise, that further she is also not a coparcener and there is also no censer of any interest in the family property, that the cases reliled upon by the Asstt. Controller of Estate Duty are not applicable to the facts of the case as in all these cases, the husband expired before the Hindu Succession Act, 1956 came into force, that the provision of Hindu Women's Right to Property Act, 1937 will not be applicable as in the case the death of the deceased husband took place in 1971, she could not be constructed to have become absolute owner of the undivided interest, of her deceased husband, in the HUF property. Reliance was place don the decision of the Allahabad High Court in the case of Smt. Anari Devi Halwasiya that unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death of the husband of the widow, there is deemed partition of the HUF of which the husband of the widow is coparcener and the widow and daughter or daughters are members, and therfore, the widow shall have the share as legal heir to her deceased husband under the Hindu Succession Act and in accordance with the Schedule therein where the widow is Class-I heir under Schedule I attached to the Hindu Succession Act; the wife is the member of the HUF of husband and is having pre-existing right of maintenance even prior to the coming into force of Hindu Succession Act, 1956. Thus, her position prior to Hindu Succession Act was that of the member of the HUF and not its coparcener but she was the member of the HUF entitled to maintenance and hence was having per-existing right of which she has become full owner on the commencement of Hindu Succession Act, 1956. Thus with the coming into force of Hindu Succession Act in the year 1956, the position of the female member (the mother, widow, and daughter) is not the same rather she is as the sons are on the death of the coparcener, the husband and father. Reliance is placed in the case of Gurupad Khandappa Magdum v. Hirabhai Khandappa Magdum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter, we have to look to the Hindu Social System and the laws governing it, to determine the right of Hindu female and widow on the death of her husband coparcener in the Hindu caparcenery or HUF. 9. Manu is the law giver to given and control the Indian society and in particular the Hindu way of life in his days and for thousand years thereafter. He gave four Varnas to the Hindu society or community in India -Brahman, Kashitreya, Vaish and Shudra. Every indian knows that the rights and duties of each Varna were different from and for each other. On account of this a situation came in Indian Hindu Society or the Hindu community that the fourth Varna had no right rather obligations and duties, resulting in, to be known as untouchable, who are to-day known as Scheduled Castes. Thus 1/4th of the Hindu community became untouchables, whose shadows were avoided by other Varna and they were worst than the animals, as everybody is aware that cows, Goats, Snakes, Lions, etc. were worshipped in their temples and while they were not allowed to enter therein. The condition of the Hindu female was not better than that of fourth Varna. The untouchables were allowed to have their own God ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hindu Family or HUF is there if there is female issue and it becomes Hindu caparcenery if there is male issue, the son. Reliance can be placed on the cases in C. Krishna Prasad v. CIT [1974] 97 ITR 493 (SC) and CED v. Alladi Kuppuswami [1977] 108 ITR 439 (SC). 10.2 In the HUF or Hindu caparcenery, the Hindu female was its member, while Hindu males were the caparcenery or co-owners or co-shares, who were having the right of partition of the Hindu caparcenery and Hindu HUF. The Hindu female was there as its member, having merely a right to be maintained if she performs the duties; as we have mentioned above. Thus, she was not having the right of partition if neglected or turned out. 10.3 Therefore, from the aforesaid facts, there is no doubt in our mind that the status or position of the Hindu Societies was worst than the forth Varna of the Hindu Society the Sudra and she was there just as a slave or servant to be maintained and kept in lieu of services to the master, the caparcenery. 11. This was her fate under the Hindu Society and Manu Laws or Hindu Laws. It is she who created caparcenery and its caparcenery, nursed and; piled after the,; but in reward to her, she was take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Manu and to that of Hindu Women's Right to Property Act, 1937. 12. Realizing this, the leaders of India (Members of Parliament) under the leadership of late Prime Minister Pandit Jawaharlal Nehru thought to bring the Hindu female equal to Hindu male on attaining and dawn on Independence; where the system of justice and laws were prescribed and made under the constitution of India. The Chapter on fundamental rights in the constitution of India says that there should be no discrimination amongst citizens of India on account of sex and they are equal before law. Accordingly, the Hindu code Bill was framed by the father of the Constitution - Dr. Babasaheb Ambedkar, who was the Hon'ble Law Minister in the Cabinet of Pandit Jawaharlal Nehru. The Hindu code Bill was not accepted and opposed, hence was not.enacted. Therefore a via media was found in getting it into parts and one of these parts is Hindu Succession Act, 1956. Therefore, we have to see the position of Hindu female in the Hindu Succession Act, 1956. For this purpose, we have to look to it and in particular to its sec. 6, 8, the Schedule, Class - I and Class - II and sec. 9 14. "Sec. 6 When a male Hindu dies after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. 14 "(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation : In this sub-section, 'Property' includes both movable and immovable property acquired by a female Hindu by inheirtance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." 13. From the aforesaid sections, it is clear that the HIndu female is brought equal to the Hindu male tough reasonable restrictions or limitations are still there name, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased, on property in the coparcenary being vested in the heirs of the deceased on account of deemed partition of the coparcenary during the life of the deceased coparcener and such partition is on account of this fiction as if it was there during the lifetime of the deceased hence the deceased has nothing to dispose of bequeathed by way of will. Therefore, there is no substance in the contention of the learned counsel for the assessee, when he says that the deceased coparcener has devolved his share or interest in the coparcenary by way of will as deemed partition which is not actual partition. Further, section 14 has made her full owner of the interest; or right provided to her under section 3 of Hindu Women's Right to Property Act, 1937, and right to maintenance under the Old Hindu Law. Therefore, it cannot be accepted that she was not having any pre-existing right or she was not at all a co-owner or shareholder in the HUF or coparcenary property. Thus, the Hindu female is coparcener in Hindu coparcenary or HUF having the same rights which were there of the coparcener before the commencement of Hindu Succession Acts, 1956 on account of its sections referred to above and it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before his death. What is therefore, required to be assumed is that a partition had in facts taken place between the deceased and his coparcener immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot of back of that assumption and ascertain the share of the heirs without reference to it. The assumption which the stature requires to be made, that a partition had in fact taken place, must permeate the entire process of ascertainment of the ultimate share of the though all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have et be logically worked out which means that the share of the heirs must be sacertained on the cases that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kalloomal Tapeswari Prasad (HUF) v. CIT [1982] 133 ITR 690, 702 "may be as regards persons who are members of the family or as regards to properties which belong to it". Thus, from the aforesaid finding of their Lordships, it is clear to us that the effect of partition of the HUF, whether by the action of the coparcener or by the operation of the law, is the same namely, that the properties of the erstwhile HUF come thereafter to be held by the various legal heirs as tenants in common. In order to bring about the disruption of the HUF, under the Hindu Law, as has been emphasized by their Lordships of the Supreme Court in Kalloomal Tapeswari Prasad (HUF)' s case, it is not at all necessary that the proprietors, in question, must be divided by metes and bounds before a partition of the family can be said to have been effected. Further as we have already mentioned, that section 171 of the Income-tax Act, 1961, provides for partition of the HUF properties or assets if so demanded and asked for by its members-the female. Thus, when this is so, we do not see any substance in the contentions of the learned counsel for the assessee referred to above and therefore we reject these and acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and de jure on the day of death of the deceased coparcener being the member of the coparcenary in which the deceased was coparcener, which had actually partitioned on account of deemed partition during his life u/s 6. And, therefore, her share in the coparcenary is increased in quality and quantity and as such it cannot be taken away or transferred by any will or any other device made by the deceased during his life, to dispose it of; since her share has been vested in her and she has become full-fledged owner of it as we have already stated above. 16.1 We have also mentioned above that her husband died on 20-2-1971 and the family consisted of the deceased, two sons and a daughter at the time of his death being an admitted position, therefore, she had 1/4th share in the property or share of her husband in the HUF property or Hindu coparcenary. We have already mentioned that the self-acquired property can be disposed of by way of will and if such property has gone to the hotchpotch of HUF or to the Hindu coparcenary, then there is no question of self-acquired property by the Hindu male or coparcener and as such if the interest in the HUF or coparcenary property is disposed or by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded interest in all the properties of his HUF upon the smaller HUF consisting of his two sons Hambadas, Vipin and his wife Harigangaben and he directed his executors to give his undivided interest to HUF of Kanaiyalal Harilal as an independent owner thereof. On death of Harigangaben the question arise before the ACED as to whether any interest of the deceased Harigangaben in the properties of HUF passed on her death. The Asstt, Controller took the view that u/s. 3(2) of the Hindu Women's right to Property Act, 1937, the widow of a member of a HUF is put in the place of her husband and her husband's interest in the joint family property would vest immediately upon his death in the widow. The widow has thus acquired a right of her deceased husband under the said provisions. This right had become an absolute right under the Hindu Succession Act (HSA) and thus by operation of section 14 of HSA she had a right as full owner to possess, manage and echo exclusively the entire estate. Therefore, on her death instate her interest in the family property would pass would pass and device by succession on her heirs and to that extent such property would be includible in the dutiable estate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... male members of a joint family have no interest in the properties of the HUF and it is only when there is an actual partition that they would get a share in the said property. As there is no pre-existing right over the joint family property, the question of her interest in the joint estate passing on her death does not arise. Further she is also not a coparcener and there is also no censer of any interest in the in the family property. The Asstt. Controller's action is assessing the deceased's alleged interest in the HUF estate as part of the principle value of the dutiable estate cannot therefore be upheld. The addition made of Rs. 85,329 is accordingly deleted." 3. Being aggrieved the revenue has come up in appeal before us. The rival submissions placed by either side have been set out in the order of my learned brother and therefore I do not wish to dilate upon the same in detail. 4. In my view the reliance placed by the revenue on the decision of their Lordships of the Gujrat High Court in the case of Suketu Jayantilal Shah is clearly misplaced. In that case it is true the it was held that u/s. 3(2) of the HWRP act, 1937 widow of a member of a HUF is put in place of her hus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of HWRP Act has no application in the instant case. That apart the above case was one of intestate succession and testamentary succession. 5. Having understood this essential distinction in so far as the factual matter is concerned we now proceed to examine the facts of the present case which is solely governed by the relevant provisions of the H. S. Act. The provisions with which we ar concerned are sections 6 30 of the H. S. Act. The scope of these section had come up for consideration before the Hon'ble Gujarat High Court in case of CWT v. Kantilal Manilal [1973] 90 ITR 289. At pages 292 and 293 it is stated thus : "But the Hindu Succession Act, 1956 made a radical departure in the devolution of interests of a coparcener in coparcenary property on his death. There are two section of the Act which speak on this subject, Section 6 and section 30. Section 6 is very material and since the determination of the question before us turns almost entirely on the true interpretation of that section we may reproduce it in full. It reads, omitting portions immaterial :" 6. When a male Hindu dies after the commencement of this Act, having at that time of his death an interest in a Mit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se would be governed by the provisions of section 6 of the Hindu Succession Act and reference may, therefore be made to the provisions of the said section. The main part of the said section provides that when a male Hindu dies after the commencement of the Act, having at the time of his death and interest in a Mitakshara coparcenary property, his interest in the said property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. The proviso to the said section, however, carves out an exception and provides that if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in the class who claims through such female relative the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship, As already stated the testator in the present case left him surviving three daughters who fall within the class of female relatives specified in class I of the Schedule and therefore his interest in the coparcenary properties would devolve by testamentary succession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on coming into existence of Hindu Succession Act, 1956 due to the repeal of the Hindu Women's Rights to Property Act, 1937 by it, and if so whether the Hindu Succession Act, 1956 has decreased her status and diminished her rights in the HUF and hence what is the actual status of her in the Hindu coparcenary or HUF ? 2. Whether the Hindu woman has become an absolute owner of her existing right of maintenance et. in the HUF and, therefore she has attained the status of coparcener in it under sections 14, 15 and Schedules I-II of the Hindu Succession Act, 1956 if not then what is the status of Hindu woman in the HUF or Hindu coparcenary ? 3. Whether the Hindu woman, widow, wife and daughter on account of deemed partition under section 6 of the Hindu Succession Act, 1956 is saved from the mischief of devises : "Will". etc. made by her deceased husband and father etc. who was having coparcenary interest or interest in the coparcenary or HUF; if so whether he is debarred to dissolve the share in the coparcenary or his interest in the HUF belonging to him by making Will, which is to be effected after the death; while the deemed partition of the Hindu coparcenary of HUF took place i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcenary be the Hindu woman, widow, wife and daughter under the provisions of Hindu Women's Rights to Property Act (XVIII of 1937 amended by XI of 1938) has been taken away from her on coming into existence of Hindu Succession Act, 1956 due to the repeal of the Hindu Women's Rights to Property Act, 1937 by it; and if so whether the Hindu Succession Act, 1956 has decreased her status and demised her rights in the HUF and hence what is the actual status of her in the Hindu coparcenary or HUF ?" 2. Whether the Hindu woman has become an absolute owner of her existing right of maintenance etc. in the HUF and therefore, she has attained the status of coparcener in kit under sections 14, 15, and Scheduled I - II of the Hindu Succession Act, 1956 if not then what is the status of Hindu woman in the HUF or Hindu coparcenary ? 3. Whether the Hindu woman, widow, wife and daughter on account of deemed partition under section 6 of the Hindu Succession Act, 1956 is saved from the mischief of devises : "Will" etc. made by her deceased husband and father etc. who was having coparcenary interest or interest in the coparcenary or HUF. if so whether he is debarred to dissolve the share in the copa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as and Vipin, and his wife Harigangaben and he directed his executors to give his undivided interest to the HUF of Kanaiyalal Harilal as an independent owner thereof. The Assistant Controller of Estate Duty, on the death of Smt. Harigangaben, indicated his intention to include the interest of the deceased in the property of the HUF which passed on her death. He took the view that under section 3(2) of the Hindu Women's Right to Property Act, 1937, the widow of a member of the HUF is to be in the status of her husband and her husband's interest in the joint family property would vest immediately upon his death in the widow. he was of the opinion that the widow had thus acquired a right of her deceased husband under the said provisions and the right became absolute under the Hindu Succession Act, 1956. He also considered the provisions of sections 6 14 of the Hindu Succession Act, determined the value of the deceased's interest at Rs. 85,329 and included the same in her taxable estate. The accountable person in appeal relied on Anari Devi Halwasiya's case and Shantikumar Jadgabai's case. He also explained the various provisions of the Hindu Succession Act, 1956. The Appellate contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow was not entitled to any right or interest in the property under the Hindu Women's Right to Property Act, 1937. He further indicated that even sections 6 14 of the Hindu Succession Act were applicable only when a Hindu male died. Here the lady died on 19-2-1977 and therefore, she was not having any right under the Hindu Succession Act. he further referred to section 7 of the Estate Duty Act and stated that even section 7 is not applicable when a female dies. The counsel indicated that a lady cannot be a coparcener and she cannot claim a partition in the family. He relied on Pushpa Devi v. CIT [1977] 109 ITR 730 (SC). It was the opinion of the counsel for the accountable person the at female can get her share when a partition takes place in the family. The counsel distinguished all the case's and further indicated that the Supreme Court decision in Gurupad Khandappa Magdum's case was decided on a particular fact which is not applicable in the case of the assessee and the assessees's case is assisted by the later decision of the Supreme Court in State of Maharashtra v. Narayan Rao Sham Rao Deshmukh AIR 1985 SC 716. He further indicated that the other decisions cited by the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X
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