TMI Blog1977 (6) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... the said will he bequathe the aforesaid property to his children, then existing (namely 4 daughters and a son) and also to his children that might be born subsequently absolutely to be enjoyed by them as co-owners, subject to the life estate given to his wife. He further provided that on his wife s death they shall take possession of the property and enjoy the same as co-owners and that they will have equal share therein. The said property consisted of a main building of two floors and out houses, the construction shaving been made in 1941, 1952 1963. It is built on a site of total extent of 7 grounds. In the ED proceedings consequent of the death of Krishnan Vydiar, which even took place on 16th Dec., 1970, the value of the above property was determined as Rs. 1,99,375. 3. Miss Sarala Krishana, the respondent in this appeal, who is one of the daughters of the deceased and the accountable person, filed an estate duty account disclosing the principal value of the estate as Rs. 91,791. It was contended before the Asstt. Controller that s. 32 of the ED Act applied and hence, no estate duty was leviable in respect of the above property. The alternate contention was that s. 25, of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeded to the said property and there was no question of the said property devolving upon the reversioners of the husband of the deceased and consequently s. 32 of the ED Act did not apply. The Department has filed an application for leave to raise an additional ground namely, that s. 32 of the ED Act will apply only to a case of intestate succession by operation of law and not to case of testamentary succession. When the appeal was taken up for hearing, the Departmental Representative did not press (rightly in our opinion) the grounds of appeal mentioned in the original memorandum and grounds of appeal. Sub-s. (2) of s. 14 of the Hindu Succession Act, 1963 specifically provides that nothing contained in sub-s. (1) thereof shall apply to any property acquired by way of gift or under a ill or any other instrument or under a decree or other of a civil Court or under an award where the terms of the gift, will or any other instrument of the decree or order awarded prescribed restricted estate in such property. As already pointed out the deceased did not get an absolute estate in the property under the will of her husband. She had only a restricted right, which has been described in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that in the even of it being held that s. 32 was not applicable, and hence the value of the property in question has to be included in the assessment, exemption of Rs. 1 lakh should be given under s. 33(1)(n) of the ED Act, since admittedly the deceased was residing in the said property. 8.(a) Sec. 32 of the ED Act runs as follows: "Where on the death of any person governed by any school of Hindu law, his interest in any property has devolved on his widow, then, if the widow, dies within seven years of her husband s death and the interest aforesaid devolves upon the reversioners or any of them, on Estate duty shall be leviable in respect of the passing of the interest aforesaid on the death of the widow, if and in so far as Estate duty had been paid in respect of the passing of such interest on the death of her husband. 8.(b) It may be noticed that cl. 31 in the original bill was as follows: "Where on the death of a Hindu coparcenary, his interest in the coparcenary property has devolved or his widow, then, the widow dies within seven years of her husband s death and the interest aforesaid devolves upon the members of the coparcenary or any of them, no estate duty shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased must have been a person governed by any school of Hindu Law. (It may be noticed that the section does not say "where on the death of any Hindu" etc., but uses the words "person governed by any school of Hindu law"), (ii) his interest in any property should have been devolved on his widow (the deceased concerned), (iii) such widow should have been died within seven years of her husband s death, (iv) on the death of such widow the interest which had devolved on her should devolve upon the reversions or any of them (obviously the reversions referred to are those of the husband of the deceased widow) and (v) estate duty must have been levied in respect of passing of such interest on the death of the husband. 12. In the instant case, it is not disputed that the husband of the deceased was a Hindu. Though the Appellate Controller has stated in paragraph 3 of his order that the deceased was governed by one of the two Cochin Acts referred to therein, it was not disputed before us that the husband of the deceased was governed by the Hindu Succession Act of 1956. Actually, Sri Krishna Vydiar died on 16th Dec., 1970. As already stated, the deceased died on 4th August, 1974. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stacy and succession" in Entry 7 of List 3. Santhanmma vs. Neelamma AIR 1956 Mad. 642 at p. 650 : I.L.R. (1956) Mad. 785." Devolve means to pass from a person dying to a person Living Paar vs. Parr 14. The assessee s authorised representative invited our attention to the observation of the Lord Macnaghton in Duke of Northumberland Anr. vs. Attorney-General (1905 Appeal Cases). Appeal cases, where dealing with the expressions/"disposition" and "devolution" occurring in Succession Duty Act, 1853, it was stated that those terms must have been intended to comprehend and exhaust every conceivable mode by which property could pass, whether by act of parties or by operation of law. He pointed out that the view has been referred to in Philipson-Stow Ors. IRC (1959 Vol. 1 All England Law Reports). 14.(b) Reference was also made to the decision of the Bombay High Court in Pakirgowda Basangowda Patil Kulkarni vs. Dyamawa, reported in ILR LVII Bombay page 486, where it was held that the expression devolving by inheritance occurring in s. 2 of Bombay Act V of 1886 was not restricted to inheritance by way of decent. 14.(c) He also relied upon the observation of the Andhra Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be appropriate to cover persons who are to succeed to the property after the death of a widow, where she gets a property under a document executed by the husband during his life time or under a will executed by him taking effect after his death. Where the property is given by a Hindu to his wife under a document or a will for her life and thereafter to be taken by others, such others are not "reversioners," but are "remaindermen". The expression "reversioners" indicate the persons to whom the estate of the male Hindu reverts on the death of his widow, who had succeeded to his property on his death, she being the only heir or being entitled to it along with the other heirs. In this connection it may be noticed that prior to the passing of the Hindu Women s Right to Property Act, 1937, the wife of a Hindu could not succeed to her husband s properties if there was a son. It was only in the absence of a son that she could succeed to her husband s properties and she had what was know as Hindu Woman s Estate which was not the same as a life interest but in respect which wider than it in as much as she could alienate the property and convey absolute title to the alience if the alienat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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