TMI Blog1971 (11) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased person, along with his brother, Sumermal Dugar, constituted a Hindu undivided family having ancestral properties. There was a partition between the brothers in 1938 and the deceased received his share of the family properties. He died on March 17, 1954, leaving his widow, Smt. Dhani Devi, who adopted Jhavermal to her husband 11 days after his death. Smt. Dhani Bai and Jhavermal filed a return under the Estate Duty Act in which they claimed that the deceased constituted a Hindu undivided family along with his wife, Smt. Dhani Bai, and in view of the adoption which she made 11 days after the death of her husband, the deceased was competent to dispose of only one-third of the family properties, the reason being that by a legal fiction the adopted son is like a posthumous son, who is deemed to have come into existence before the death of the adoptive father. This contention was overruled by the Deputy Controller who held that as the deceased was the sole surviving coparcener the entire properties held by him passed on his death under section 5 of the Act, he being competent to dispose of the entire properties at the time of his death. He accordingly levied estate duty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue until the death of the widow renders the continuation of the line by adoption impossible. " Anant Bhikappa Patil v. Shankar Ramchandra Patil : " 'A Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it.' " The Judicial Committee went on to observe in Arunachalam's case : " The nature of the interest of a single surviving coparcener was the subject of exhaustive evidence by expert witnesses and their Lordships were referred to and studied numerous authorities in which in reference to his interest language was used not incompatible with his being regarded as the 'owner' of the family property. But though it may be correct to speak of him as the 'owner', yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality ; it is such, too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the line either by giving birth to a posthumous son or by adopting one. It will thus be seen that the deceased person was a member of a Hindu undivided family consisting of himself and his wife after his separation from his brother. The argument of the learned counsel for the revenue that the properties which he left were his separate properties since the date of partition is not tenable. Coming now to the question as to the interest of the deceased person in the joint family properties at the time of his death it is sufficient to refer to the decision of their Lordships of the Supreme Court in Krishnamurthi v. Dhruwaraj. The following pedigree will help in understanding the facts of that case : N (died 1892) Son B (died 1885) =wife T daughter K (died 1933) Son D by adoption in 1945 Son V (respondent-plaintiff) (died 1934) 2 Sons (defendants-appellants) N was possessed of joint family property, which was inherited by his daughter, K, on his death in 1892. On the death of K the property was inherited by her son, V. On the death of V the family property was inherited by his two sons, the appellants-defendants. About 11 years after the death of V, B's widow, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family in which the interest of the coparceners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. This principle of relation back cannot be applied when the claim made by the adopted son relates not to the estate of his adoptive father but to that of a collateral. With reference to the claim with respect to the estate of a collateral, the governing principle is that inheritance can never be in abeyance, and that once it devolves on a person who is the nearest heir under the law it is thereafter not liable to be divested. When succession to the properties of a person other than an adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested could not be divested. " As explained in Anant Bhikappa Patil v. Shankar Ramchandra Patil the adopted son is the continuator of his adoptive father's line exactly as an aurasa son, and an adoption, so far as the continuity of the line is concerned has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the line. Jhavermal will, therefore, be deemed to have come into existence immediately before the death of Budhmal Dugar. Therefore at the time of his death the joint family will be deemed to have consisted of the deceased person, his adopted son and his wife. The wife is not entitled to claim a partition. Only the father and the son could have claimed it. The share of the deceased person at such a partition would have been one-third. In view of the fiction enacted in section 39 of the Estate Duty Act the share of the deceased person in the family properties at the time of his death was one-third and this alone will be deemed to have passed on his death. We may here refer to the dictum of Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough council : " If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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