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TMI Blog1969 (12) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by section 3(2) of the Hindu Women's Rights to Property Act, 1937, was an interest in property which ceased on the death of the widow attracting duty, and that Attorney-General of Ceylon v. Arunachalam Chettiar had no application to such a case. The original reference to this court was of the following three questions: " 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 ? " Of these, only the first is now pressed and not the others, on behalf of the accountable persons. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined in several cases of which it will suffice to refer only to the recent ones. In Satrughan v. Subujpari, it is observed : " The interest of the widow arises not by inheritance, nor by survivorship, but by statutory substitution : Lakshmi Perumallu v. Krishna venamma ...... By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of her husband, who was a coparcener, the same interest in the joint family property as her deceased husband had, subject of course to the limitation that the interest so devolving on her shall be a Hindu woman's estate and is known to the Hindu law with the right superadded of claiming partition as a male owner. The Act does not make her a coparcener, and the basis of her right is not right by birth but by statute." It was further pointed out in this case that the widow having the interest under section 3(2) was not merely entitled to a right to demand partition, but was within her rights to interdict an alienation by a coparcener of the joint family property, and that the interest she became entitled to under the statute was an interest in property. The widow in this reference had never asked for partition. On her death, therefore, her interest merged in the coparcenary, of which her sons were coparceners. It will be inappropriate to describe the merger as passing of property on the death of the widow. " Passes " in section 5 implies; movement of the estate from one dying to another, and means changing hands. When by the death of the widow her interest under section 3(2) laps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 7(1), and the related povisions in the Indian Act, the provisions of the Ceylon Estate Duty Ordinance, 1919, specially section 7, 8(1)(a) and (b) as.well as section. 17(6), are in Pari materia with corresponding provisions of the former Act. Let us scrutinise the material provisions of the Estate Duty Act, 1953. " Property " is defined to include, of course, any interest in property, moveable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also any property converted from one species into another by any method included in the definition of the expression " property passing on the death " is property passing either immediately on the death or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation. Pausing here for a moment, we may observe that the interest a widow has under section 3(2) of the Hindu Women's Rights to Property Act, 1937, may be regarded as property. That is the view rightly taken in Govindammal v. Ramaswami Pillai. The charging section 5 directs levy of duty on the estate of the deceased which passes on his death. The section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d necessary, in our opinion, to understand the words "property ", "interest " and " benefit " in the context and in the light of these provisions. It follows that though property, or an interest in property, may well be included in the definition of the term "property ", still it may or may not be so for purposes of a particular section in the Act. For instance, it is only property that passes in the sense of passing hands by way of inheritance, or other form of devolution, which seems to attract section 5. Likewise, for purposes of section 6, it must be property which the deceased at the time of his death was competent to dispose of. So also, for the application of the first part of section 7(1), it should be such interest in property, as on its cesser the benefit that accrues or arises should be referable to the whole or less than the whole income of the property. The implication is that if this measure in terms of income of the property is not apposite to the cesser of an interest, it will not be an interest such as is contemplated by section 7(1). The inclusive provision of the sub-section does not seem to affect this construction as the principal value of the class of interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art from that, the scheme of the statute, in the light of section 40(b), is that any interest in property not capable of measurement in terms of income is not within the purview of section 7(1). Attorney-General of Ceylon v. Arunachalam Chettiar, supports this view. In Gartide v. Inland Revenue Commissioners, with reference to section 7(7)(a) and (b) of the English Act, which corresponds to section 40(a) and (b) of our Act, it was observed at page 718 : " This shows that for the cesser of an interest to give rise to a charge for duty, it must be possible to say of the interest that it extended to the whole income, or to a definite part of the income. This notion of definite extension is, in my opinion, vital to the understanding and working of section 2(1)(b) and consequently of section 43 of the Act of 1940." Section 2(1)(b) is in pari materia with the first part of section 7(1) of the Indian Act. For the revenue, our attention was invited to Kuppathammal Saklhi. But we do not think that the learned judge in that case, meant to lay down the law to be that the widow of a Hindu deceased coparcener is, by reason of her interest under section 3(2) of the Hindu. Women's Rights to Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the same case which we just now noticed, the Supreme Court pointed out : " 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. " It is clear, therefore, that the interest of a widow under section 3(2) of the said Act is not coparcenary interest within the meaning of section 7(1). It is true that the expression " coparcenary interest " has been used in the sub-section even in respect of joint family property of a Hindu family governed by the Marumakkattayam or Aliyasantana law. In the context, that expression only means as apparently Mammad Koyi v. Assistant Controller of Estate Duty, a case of a Mohamedan tarwad, was inclined to think. But we see no justification why the expression " a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara "should be understood not in the light of the exposition by that school of the Hindu law, but as mere joint interest in the joint family property of a Hindu family. The legislature must be taken to have had in mind, while enacting section 7(1), the incidents of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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