TMI Blog1997 (7) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... d family ") with his wife, died on January 27, 1977. The wife, being the accountable person, after issuance of statutory notice, filed the estate duty return contending that the properties, both movable and immovable, were an cestral and the deceased who was governed by the Mitakshara school of Hindu law constituted a Hindu undivided family with his wife. It was claimed that half portion of the properties belonged to her and, therefore, only half of the Hindu undivided family properties should be included in the estate passing on the death of the deceased. The Assistant Controller of Estate Duty found that the deceased was the sole surviving coparcener at the time of his death. He was competent to dispose of the whole of the properties. The wife was entitled to claim maintenance only and could not claim partition of the Hindu undivided family properties. The Assistant Controller of Estate Duty held that the whole of the properties passed on the death of the deceased and, therefore, included the entire estate of the deceased for levy of the estate duty. The accountable person carried an appeal to the Controller of Estate Duty (Appeals) who agreed with the conclusions of the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Income-tax Act, 1961, without there being two male members in the family, none the less, she cannot claim partition of the Hindu undivided family. Only a coparcener could claim partition of the ancestral property. The wife has a right of maintenance only from the husband. The sole surviving coparcener has the absolute right over the property which he can dispose of as his self-acquired property. On his death, the whole of the property possessed by the Hindu undivided family passes for the purposes of estate duty. It was argued that the Tribunal has taken the correct view and the question be answered in the affirmative, i.e., in favour of the Revenue. It was also argued by him that the Bombay and Orissa High Courts in P. G. Chaware's case [1993] 204 ITR 513 and Dulari Devi's case [1995] 211 ITR 524, respectively, have not taken the correct view and commended to us the contrary view taken by the other High Courts in Smt. P. Leelavathamma's case [1978] 112 ITR 739 (AP), Smt. Ginni Devi Jain's case [19931 204 ITR 110 (Patna), Smt. S. Harish Chandra's case [1987] 167 ITR 230 (All), Smt. Kalawati Devi's case [1980] 125 ITR 762 (All), Ramratan's case [1983] 142 ITR 863 (MP) [FB] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of this sub-section. Section 39. Valuation of interest in coparcenary property ceasing on, death.---(1) The value of the benefit accruing or. arising from the cesser of a coparcenary interest in any joint family property governed by the Mitakshara school of Hindu law which ceases on the death of a member thereof shall be the principal value of the share in the joint family property which would have been allotted to the deceased had there been a partition immediately before his death. (2) The value of the benefit accruing or arising from the cesser of an interest in the property of a tarwad or tavazhi governed by the Marumakkatayam rule of inheritance or of a kutumba or kavaru governed by the Aliyasantana rule of inheritance which ceases on the death of a member thereof shall be the principal value of the share in the property of the tarwad or tavazhi or, as the case may be, the kutumba or kavaru which would have been allotted to the deceased had a partition taken place immediately before his death. (3) For the purpose of estimating the principal value of the joint family property of a Hindu family governed by the Mitakshara, Marumakkattayam or Aliyasanatana law in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at be so, section 39(1) would be clearly attracted and, on the death of the deceased, only a half share of the family property would be deemed to pass. The Assistant Controller of Estate Duty does not appear to be correct in taking the view that though there might be a Hindu undivided family consisting of the deceased and his wife, on the death of the deceased, the whole property will pass. He also does not appear to be right in holding that there cannot be a valid partition between a single male coparcener and his wife. There is no dispute in regard to the legal proposition that, in a joint Hindu family, the wife who is a member is entitled to get a share as and when a partition is effected. The only restriction is that she herself is not entitled to claim a partition. But, in the event of a partition taking place, she cannot be denied her share . If that be so, it is not understandable how section 39(1) will not be attracted. Section 39(1) visualises a deemed partition immediately before the death of the deceased and determination of the share of the deceased consequent to such partition. It is the share of the deceased determined in such manner which will be taken as his interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hindu undivided family. The deceased had no son. There was thus no coparcener in his family excepting himself. The deceased was the sole coparcener in his family. Speaking generally, female members in a Hindu undivided family have no ownership in the property belonging to the family. The ownership of such a property is held by a smaller body which is called the coparcenary and in case there is only one coparcener, it is he alone who owns the entire property. It is true that for the purposes of the assessment of income-tax, the status of the deceased was that of a Hindu undivided family as he and his wife constituted a family but different considerations prevail for finding out as to whether the entire property of the family or a share in it passed on the death of the deceased. As the entire ownership in the property vested in the deceased and as no part of it was shared by the wife who was the only other member in the family, the entire property passed on the death of the deceased within the meaning of section 5 of the Act. The deceased being the sole coparcener had disposing power under the Hindu law in respect of the entire property and even under section 6 of the Act the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition only between two surviving coparceners subject to the provisions contained in the Hindu Succession Act, 1956, conferring special rights which are not relevant for the present purpose. Therefore, even immediately before the death of the deceased, no partition was permissible between the deceased and his wife, Ginni Devi. It is well-settled that, in a case like the present one, neither the wife can have any share nor could she sue for any share and, therefore, on the death of the sole surviving coparcener of a Hindu undivided family, the entire interest in the Hindu undivided family property passes to his heir. (See Smt. Rajni Bhargava v. CED [1991] 190 ITR 521 (All) and CED v. Smt. Kalawati Devi [1980] 125 ITR 762 (All))." The Madras High Court in P. Amirthavalli's case [1987] 164 ITR 63 held : "...that when the partition took place between the deceased and his son, the deceased's wife had no right to be allotted any share in the joint family property. Thereafter, in the said joint family, the only members were the deceased, his wife and one unmarried daughter and during the lifetime of the deceased, neither his wife nor the unmarried daughter had any right to demand any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r acquires by birth an interest in the ancestral property. Property inherited from father, grandfather and great grandfather is ancestral property whereas any other property inherited from other relations is the separate property of the inheritor. A coparcener, subject to local customary laws, can claim partition of his ancestral property from his father. A Hindu male has absolute right over his self-acquired property and can dispose of it at his will. The last male holder/sole surviving coparcener enjoys the same powers of disposition of the inherited property as self-acquired property. A coparcenary, being a narrow body, may cease to exist even before the joint family, such as the one under consideration. In the absence of any other coparcener, Telu Ram, deceased, became the sole surviving coparcener/last male holder. As the deceased did not have son, son's son or son's son's son, he was the absolute owner of the property as if it was his separate and self-acquired property and could deal with it as he liked. Another established principle of the Hindu law is that the female member of a Hindu undivided family cannot claim partition. In CED v. Alladi Kuppuswamy [1977] 108 ITR 439 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st in the Hindu undivided family property by birth and has no right to claim partition. She has only a right of maintenance. A Hindu undivided family property continues to be joint as a taxable unit in the Income-tax Act but the last male holder enjoys the same power on the property as if the same was his personal/self-acquired property. As he was possessed with right of disposal of the property under section 6 of the Act, the whole of his interest would be deemed to have passed on his death to the accountable person. Section 7 of the Act applies when coparcenary interest in a joint family property ceases on death and section 39(1) lays down the mode for valuation of that interest. Sections 7 and 39 would apply only if there are more than one coparcener in the joint Hindu family. In the case of a single coparcener, the whole estate vests in him, being the last male holder, and the question of ascertaining his right for valuation under section 39(1) would not arise. The question of partition immediately before his death would also not arise as partition could only be amongst the coparceners. Section 39 falls in Part V of the Act, which deals with value chargeable of the property f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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