TMI Blog1980 (9) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... n June 15, 1953. The said Ajitkumar had a son called Kiritkumar who was the only living coparcener at the time of death of the deceased. Smt. Kevalbai died on February 8, 1969. At the time of her death, the HUF consisted of the deceased and her great grandson, Kiritkumar, and Kiritkumar's mother, Bhanumati. The said Tribhovandas, the late husband of the deceased, was having joint family properties in his hands when he died in 1940. The deceased, Smt. Kevalbai, left a will behind her dated October 19, 1953. The estate duty account was filed by the present accountable person who was the executor of the will of the deceased. The accountable person's case before the Asst. Controller was that there being only one coparcener in the HUF, there was no question of partition of the joint Hindu family property and the deceased herself could not have demanded the partition of the HUF in her own right and, hence, the deceased was not entitled to any share in the HUF properties which could be considered to have passed on her death. The said plea did not find favour with the Asst. Controller who was of the view that on the coming into force of the Hindu Succession Act of 1956, the limited estat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the joint family property passed to his widow, Kevalbai, by way of widow's estate. The said S. 3(2) of the Hindu Women's Rights to Property Act, 1937, read as under: " When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had." Sub-section (3) of section 3 provided as under: " Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu women's estate, provided however that she shall have the same right of claiming partition as a male owner." It is, therefore, clear that Tribhovandas' one-half undivided interest in the joint family property vested in his widow in 1940 by way of widow's estate on account of his death. At the relevant time, the provisions of ss. 3(2) and 3(3) of the Hindu Women's Rights to Property Act, 1937, squarely applied and, consequently, one-half undivided interest of the deceased, Tribhovandas, in the joint family property was possessed by his wid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly property. The aforesaid difficulty envisaged by Mr. Patel is really no difficulty at all. In the present case, because of the operation of the provisions of the Hindu Women's Rights to Property Act and the Hindu Succession Act (s. 14) at appropriate times, the undivided interest of Kevalbai in the joint family property could be easily ascertained. There is no question of Kevalbai herself demanding partition by her own act or volition. In fact, ascertainment of her one-half share has to be done on account of the operation of the statutory provisions wherein the theory of notional partition can project itself. Thus, the inhibition against a Hindu women's right to a partition in her own right out of joint family property as known to the classical Hindu law cannot directly apply to such a situation. The only question which arises for consideration is as to whether at the time of death of Kevalbai, she had left any interest in the undivided Hindu joint family property and the answer to this question is obvious that she had one-half interest and that one-half interest had vested in her as full owner on account of the joint operation of ss. 3(2) and 3(3) of the Hindu Women's Rights to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y properties would pass and devolve by succession on her heirs and to that extent it would be required to be included in the estate liable to pay duty under the Estate Duty Act. In any case, the widow having become the absolute owner of the share which she inherited from her husband, would be competent to dispose it of, it being an incident of full ownership, and, therefore, her interest would be deemed to be property passing on her death under section 6 of the Estate Duty Act." This court, following the previous judgment of the Supreme Court on the point, took the view that if the widow having an interest of her deceased husband in the joint family property under s. 3(2) of the Hindu Women's Rights to Property Act, 1937, becomes full and absolute owner by operation of the provisions of law contained in s. 14 of the Hindu Succession Act, it follows that she has, as absolute owner, certain rights over the property, namely, (1) right to its possession, (2) right to its management, (3) right to its exclusive enjoyment, (4) right of disposal by an act inter vivos or will, at pleasure, and (5) on death intestate the property should devolve by succession on her own heirs. Another con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 962, was the widow of one Ranchhodlalji, who had died in 1961. Ranchhodlalji was the son of Madhusudanlalji, who died some time in 1920. Madhusudanlalji had left behind him his wife, Tati, who was alive at the time of Vraj Priya's death and who was alive even at the time of the hearing of the reference by the High Court. At the time of Vraj Priya's death, Ranchhodlalji's son, Vrajraiji, was alive and he was the accountable person in that case. Vrajraiji's son, Lalan, who was born on November 12, 1959, was also alive at the time of Vraj Priya's death. Thus, it is obvious that at the time of his death, Ranchhodlalji was the karta of the HUF of which the members were his son, Vrajraiji, and his wife, Vraj Priya. Prior to her death, Vraj Priya had not asked for any partition though she was entitled to do so by virtue of the right conferred upon her by the Hindu Women's Rights to Property Act, 1937, and the Hindu Succession Act. The question was as to what was the quantum of her share in the joint family properties. The Asst. Controller computed the dutiable estate of the deceased by including one-half of the property owned by the family at the time of her death. Against the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntable person. But Mr. K. C. Patel, learned advocate for the accountable person, submitted that there is a judgment of this court in CIT v. Shantikumar Jagabhai [1976] 105 ITR 795, which has taken the view that there cannot be partition between a Hindu woman and sole surviving coparcener and applying the ratio of the said decision to the facts of this case, it would be clear that at the time when Kevalbai died in 1969, she was a member of an HUF with sole surviving coparcener, Kiritkumar, and, in the circumstances, there was no question of any partition being effected and, hence, it was not possible to work out the exact proprietary right of Kevalbai in the joint family property. In order to appreciate the aforesaid contention of Mr. Patel, it is necessary to glance through certain relevant facts against the background of which this court was required to consider the question that arose for its decision in Shantikumar's case [1976] 105 ITR 795 (Guj). In the aforesaid decision, the question for consideration was" Whether on the facts and in the circumstances of the case, by release deed dated September 11, 1961, a valid partition between the mother and the minor son was effected ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the particular asset which they were holding jointly, i.e., the joint family business. The question was, whether by the document dated 11th September, 1961, any valid partition could be effected between Kalavati on the one hand and Bhadrakumar on the other. While answering this question against the assessee, this court held : " As a result of the release deed dated November 10, 1956, executed by the major son, G, the business thereafter belonged to the joint family of which the members were S, K and B. As S had left a will, by virtue of the proviso to section 6 of the Hindu Succession Act, a notional partition took place as at the time of his death and the one-third share of S in the family business devolved under his will equally on the three legatees, K, G, and B, who thus became entitled to one-ninth share each in the business as tenants-in-common. " It was further held : " As a result of the will and by virtue of the release deed executed by G on September 11, 1961, as regards G's one-third share in the business, K and B each became entitled to one-sixth share in his or her own individual separate right and not as a member of the Hindu undivided family and they must be as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hindu Women's Rights to Property Act, 1937, and, secondly, when this limited interest got enlarged in 1956, by operation of s. 14 of the Hindu Succession Act. To work out the exact extent of the undivided interest of Kevalbai in the joint family property, the question of effecting notional partition would assume importance and in considering such a question, inhibition against Hindu female herself demanding partition vis-a-vis the surviving coparcener can never be pressed into service. In fact, this is entirely a different situation wherein notional partition has to be effected as per the statutory requirements of the relevant provisions of the aforesaid Acts. It is further interesting to note that even in Shantikumar's case [1976] 105 ITR 795 (Guj) itself, the theory of notional partition had to be pressed into service while ascertaining the shares of different heirs, Kalavati, Gautamkumar and Bhadrakumar vis-a-vis Shantikumar at the time when Shantikumar died and for that purpose, the provisions of s. 6 of the Hindu Succession Act were required to be resorted to. Under these circumstances, it is not possible to accept the contention of Mr. Patel that the ratio of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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