9911796707
TMI Blog2002 (6) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, Jamnadas and Vipin, and a daughter. Her husband Kanaiyalal, had expired on February 20, 1971, after making a will dated April 21, 1969. By the said will he had bequeathed his undivided interest in all the property of the Kanaiyalal Hindu undivided family upon the Hindu undivided family consisting of his two sons, Jamnadas and Vipin, and his wife, Harigangaben, and he directed his executors to give his undivided interest to the Hindu undivided family of Kanaiyalal as an independent owner thereof. On the death of Harigangaben, the Assistant Controller of Estate Duty held that upon the death of Kanaiyalal, Harigangaben had acquired interest in the property of the Hindu undivided family which passed on her death. He took the view that und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on between the Judicial Member and the Accountant Member. While the judicial Member expressed his opinion in favour of the Revenue, the Accountant Member expressed his opinion in favour of the accountable person. On a reference under section 63(11) of the Estate Duty Act, 1953, the Third Member, i.e., the Vice-President of the Tribunal, agreed with the view of the Accountant Member. Accordingly, the appeal filed by the Revenue was dismissed by majority opinion. Hence, this reference at the instance of the Revenue. Mr. B.B. Naik, learned counsel for the Revenue, has vehemently submitted that when Kanaiyalal expired on February 20, 1971, he had left behind him a female relative in Class 1, i.e., his wife and, therefore, under section 6 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the scope of the present reference, since the present reference is only concerned with the question whether Harigangaben had inherited any share of the deceased in the Hindu undivided family estate upon the death of the husband. Having heard learned counsel for the parties, we are of the view that there is considerable substance in the submissions made by learned counsel for the assessee. As per the settled legal position, and as embodied in the main part of section 6 of the Hindu Succession Act, 1956, at the time of death of Kanaiyalal on February 20, 1971, his undivided interest in the Hindu undivided family property devolved upon the legatee of the will executed by Kanaiyalal on April 21, 1969. That legatee was a smaller Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divided family property and not Harigangaben in her individual capacity. In this view of the matter, the submission being made on behalf of the Revenue is thoroughly misconceived and calls for no further discussion. Coming to the question of applicability of section 39 of the Act, that provision would apply only when there is cessation of coparcenary interest. Since a female cannot be a coparcener under the Mitakshara law, the interest of Harigangaben in the smaller Hindu undivided family at the time of her death cannot be said to be coparcenary interest. In this connection, the following paragraph from Mulla--Principles of Hindu Law, 17th edition, Chapter XII (Vol. 1) is required to be reproduced: "217. Females cannot be coparceners.-No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the share of Harigangaben in the undivided interest of Kanaiyalal in the larger Hindu undivided family and that too at one-half of the interest of Kanaiyalal. As explained above, that stand is not sustainable as Harigangaben had not acquired any property in her individual capacity upon the death of Kanaiyalal, in so far as the Hindu undivided family property is concerned. The question about the quantum of Harigangaben's right to maintenance and the value thereof are questions of fact which would require detailed investigation. We have, therefore, not permitted learned counsel for the Revenue to urge any such contention which is not referable to any material on record and regarding which no submissions were made on behalf of the Revenue e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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