TMI Blog1972 (6) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... them by a common judgment. The first question of law which has been referred for our opinion by the Tribunal pursuant to the direction given by this court is as follows: " Whether, the deduction admissible is in respect of tax payable pursuant to the relevant return filed by the assessee or whether such deduction is admissible in respect of tax as finally determined on assessment?" The answer to this question is concluded by a decision given by us to-day in Wealth-tax Reference No. 3 of 1970 and other allied references. We must hold in accordance with that decision that the tax liability admissible as a deduction in computing the net wealth of the assessee must be taken to be the amount of tax as finally determined on assessment and not the amount of tax computed on the basis of the return filed by the assessee. So far as the second question of law referred for our opinion is concerned, it is necessary to state a few facts in order to appreciate this question. The assessee is a Hindu undivided family and prior to 15th August, 1958, it consisted of Kantilal Manilal, his wife, Pushpavati, a son, named Dinesh, Usha, wife of Dinesh, and an unmarried daughter, Rupande. Dinesh d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of death of Dinesh was inherited by Usha and Pushpavati and, consequently, it ceased to be the property of the Hindu undivided family and was liable to be excluded in computing the net wealth of the assessee. But, so far as the decision of the Tribunal according exemption to the jewellery was concerned, the revenue was dissatisfied with it and it has, therefore, brought up that decision before us for our scrutiny by obtaining the present reference. The question is whether the view taken by the Tribunal that one-third share in the jewellery belonged to Pushpavati and Usha or after the settlement to Pushpavati alone and only two-thirds share belonged to the assessee and since that two-thirds share was of the value of less than Rs. 25,000, it was exempt from tax under section 5(1)(xiv), can be said to be incorrect. Now it is common ground that at the date of death of Dinesh, the assessee Hindu undivided family consisted of Kantilal Manilal, Pushpavati, Dinesh, Usha and Rupande. Dinesh being a male coparcener had interest in the properties of the Hindu undivided family. On the death of Dinesh, his interest in the properties of the Hindu undivided family would have ordinarily, unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. This provision became necessary, because otherwise interest in coparcenary property being of "property" of a coparcener, its devolution on the death of the coparcener would have been governed by section 8. The legislature wanted to preserve devolution by survivorship except in cases covered by the proviso and, therefore, enacted the main provision in section 6. The proviso, however, set out certain exceptional cases in which the interest of a deceased coparcener in coparcenary property shall devolve not by survivorship but by testamentary or intestate succession, as the case may be, under the Act. If for example the deceased coparcener leaves him surviving a female relative specified in class I of the Schedule-and class I specifies both wife and mother-his interest in the coparcenary property would, according to the proviso, devolve by intestate succession. That is how the interest of Dinesh in the properties of the assessee Hindu undivided family devolved on Usha and Pushpavati on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that share goes out of the Hindu undivided family and the Hindu undivided family continues to be the owner of only the remaining share. The result is that in the properties which belonged to the Hindu undivided family at the date of death of the coparcener, the heirs have a defined share, namely, the share which the deceased coparcener whom they have succeeded would have had, if a partition had taken place immediately before his death and the remaining share belongs to the Hindu undivided family. Now, once this position is reached, it is clear that the Hindu undivided family and the heirs hold these properties as tenants-in-common. Where there are two or more co-owners of property, the co-ownership may assume one of several forms : it may be coparcenary or joint tenancy or tenancy-in-common. These are the main three forms of co-ownership which are commonly in use in legal relationship in this country. Here coparcenary is out of question because the heirs in their capacity as such would indubitably not be coparceners with the other members of the Hindu undivided family. The only question, therefore, can be whether the Hindu undivided family and the heirs hold as joint tenants or as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share. The question, however, still remains whether it could be said that in a particular property, namely, jewellery, which belonged to the Hindu undivided family at the date of death of Dinesh, Usha and Pushpavati had each one-sixth share and the assessee Hindu undivided family had the remaining two-thirds share, so that what could be brought in the computation of net wealth of the assessee Hindu undivided family was only two-thirds share of the jewellery and not the whole of it. We do not think this question presents any difficulty. When it is said that the Hindu undivided family, Usha and Pushpavati were tenants-in-common of definite ascertained properties belonging to the Hindu undivided family at the date of death of Dinesh, it must mean that they were tenants-in-common in respect of each of those properties. Each one of them had an undivided share in every item of those properties. It is true that none of them could predicate at any point of time that a particular identified part of any property belonged to him. So also it is equally true that if any of them sought to ascertain and separate his share in the properties, he would not get one-third share in specie from each ..... X X X X Extracts X X X X X X X X Extracts X X X X
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