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TMI Blog2002 (7) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... n holding that while giving exemption under section 33(1)(n) in respect of house property included in the value of the estate one has to assume as if the house happened to come to the share of the deceased on a fictional partition of the Hindu undivided family before the date of the death and in allowing exemption of Rs. 1,00,000 instead of to the extent of the share of the deceased the house property?" The facts leading to this reference, as found by the Tribunal, are as under: Shri Kiranchandra Subodhchandra of Ahmedabad died on May 28, 1980, at the age of 37 years. The estate duty account was filed by the accountable persons (AP) on February 13,1981, showing the principal value of the estate at Rs. 7,77,070. The estate of the deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 33(1)(n) was granted to the extent of Rs. 22,211. Accordingly, the final assessment order was passed on February 27, 1986, on the net principal value of the estate of Rs. 8,39,907. In appeal preferred by the accountable person, the Appellate Controller of Estate Duty (ACED), Ahmedabad, accepted the claim of maintenance of marriage of three unmarried daughters totalling to Rs. 1,50,000 and directed the first ACED to grant the said deduction from the Hindu undivided family estate. Similarly, the claim of exemption under section 33(1)(n) was granted to the full extent of Rs. 1,00,000. Aggrieved by the aforesaid order, the Revenue preferred an appeal before the Tribunal. The Tribunal confirmed the findings of the Appellate Controller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty for defraying the expenses for her marriage and she can enforce the right against the family property. This right arises from her membership in the joint family and from her inherent right in the family property as an unmarried daughter. The liability of the family property in this regard is independent of the father's personal obligation to get the daughter married. The statutory provisions under the Hindu Adoptions and Maintenance Act, 1956, providing for the obligation of a Hindu father to perform and spend for the marriage of his unmarried daughter do not affect the daughter's independent right under her personal law to render ancestral property liable for her maintenance and marriage. The provision for the marriage of unmarried dau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay for the marriage expenses of unmarried daughters in the family would be a proper debt deductible under the general provisions of section 44, where the deceased died possessed of such property and that this liability does not fall under any of the special categories covered by clauses (a) to (d) of section 44 and is not subject to the limitations contained therein. The case in P. Leelavathamma [1991] 188 ITR 803 (SC) dealt with the case of a wife who was claiming her personal right of maintenance against her husband, under the Hindu Adoptions and Maintenance Act, 1956, but had no charge on the property of the deceased, which, in any case, was not ancestral property of the deceased. On the other hand, in the facts of the present case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not inclined to accept the above request. Apart from the fact that this reference has been pending before this court since 1994, the Estate Duty Act, 1953 itself has been repealed with effect from June 15,1985. For these reasons, we are not inclined to remand the matter to the Assistant Controller of Estate Duty for holding any inquiry. For the aforesaid reasons, our answer to question No. 1 is in the affirmative, that is in favour of the accountable person and against the Revenue. Coming to question No. 2, the controversy arises from the view taken by the Revenue that since the value of the property at Shahibaug which was occupied by the deceased at the time of death was Rs. 1,33,266, and the deceased had a 1/5th share in the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the exemption of Rs. 1,00,000 was allowable under section 33(1)(n) of the Act. "Regarding the claim of exemption in respect of the residential property included in the estate of the bigger Hindu undivided family I find that the interpretation of sections 33(1)(n), 34(1)(c) and 39 arising out of harmonious construction of all the three makes it clear particularly after going through the judgment cited by the appellant in this behalf, that while giving exemption under section 33(1)(n) in respect of the house property included in the value of the estate one has to assume as if the house happened to come to the share of the deceased on a fictional partition before the date of death. Therefore exemption of Rs. 1 lakh in respect of the hous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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