TMI Blog2002 (6) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... for our opinion: "Whether, on the facts and in the circumstances of the case, the 1/2 share of the deceased in the Hindu undivided family estate inherited from her husband was includible in her hands as a property passing or deemed to pass on her death Smt. Harigangaben expired on February 19 1977, leaving behind two sons, 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dependent owner of the property under the said will, Harigangaben had not acquired any interest in the Hindu undivided family property upon the death of her husband. Accordingly, the Appellate Controller deleted the inclusion of Rs. 85,329. When the Revenue carried the matter before the Tribunal, there was difference of opinion 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler Hindu undivided family consisting of his two sons, Jamnadas and Vipin, and his wife, Harigangaben, and, therefore, Harigangaben did not acquire any interest upon the death of her husband, Kanaiyalal, on February 20, 1971. It was further submitted that the alternative submissions being made by learned counsel for the Revenue are 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intestate, but since Kanaiyalal had already executed a will dated April 21, 1969, bequeathing his undivided interest in the Hindu undivided family property on the Hindu undivided family of his two sons and his wife, Harigangaben, it was the said Hindu undivided family which inherited the undivided interest of Kanaiyalal in the Hindu undivided 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Naik's submission is that since the entire controversy has arisen upon the death of Harigangaben and the question is about the liability to pay estate duty upon her death, this court may undoubtedly redraft the question. Though prima facie attractive, the contention does not deserve to be accepted. The Wealth-tax Officer had determined 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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