K.S. Puttaswamy, J.
1. In this reference made under section 64 of the Estate Duty Act, 1953 (Central Act No. 34 of 1953) ('the Act'), the Income-tax Appellate Tribunal, Bangalore Bench, Bangalore ('the Tribunal'), at instance of the accountable person ('the assessee') has stated a case and referred the following question of law for the opinion of this court :
'Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that neither the unmarried daughter nor the wife of the deceased had any interest in the property of the deceased while he was alive ?'
2. In order to appreciate the question referred to us, it is necessary in the first instance to notice the facts that are not in dispute.
3. One I. M. Manjunatha Gowda, son of I. S. Mallegowda of Agalkhan Estate, Chikkmagalur District, was a member of a joint Hindu Family (HUF) consisting of himself, his father and several other members. The Hindu undivided family owned extensive immovable properties. On May 4, 1955, there was a partition among the members of the said Hindu undivided family in which Manjunatha Gowda, who was then a minor, was allotted his share of movable and immovable properties of the Hindu undivided family.
4. On September 13, 1971, Manjunatha Gowda died leaving behind his wife, Smt. Satyaprema, and an unmarried daughter, Kumari Yeshaswini alias Sumana. In due course, Smt. Satyaprema filed an account of the estate passing on the death of Manjunatha Gowda under the Act before the Assistant Controller of Estate Duty, Bangalore, in which, she, inter alia, claimed that the deceased had only 4/5ths share ill the properties of the Hindu undivided family and the unmarried daughter had 1/5th share by virtue of section 8 of the Hindu Law Women's Rights Act, 1933 (Mysore Act No. 10 of 1933) ('the Mysore Act'), and the same had therefore to be excluded from levy of duty under the Act.
5. On August 29, 1973, the Assistant Controller of Estate Duty completed the assessment in which he rejected the aforesaid claim of the assessee and subjected the entire estate of the deceased to duty under the Act. Against the said order of the Assistant Controller of Estate Duty, the filed an appeal before the Appellate controller of Estate Duty Karnataka Charge, Bangalore ('the Appellate Controller'), who by his order dated May 7, 1976, allowed the same and accepted the said claim.
6. Aggrieved by the order made by the Appellate Controller, the Controller of Estate Duty in Karnataka, Bangalore ('the Revenue') filed an appeal before the Tribunal, which by its order dated August 24, 1977, allowed the same, reversed the order of the Appellate Controller and restored the order of the Assistant Controller of Estate Duty. Hence, this reference at the instance of the assessee.
7. Sri S. P. Bhat, learned counsel, has appeared for the assessee. Sri K. Srinivasan, senior standing counsel for the Income-tax Department, assisted by Sri H. Raghavendra Rao, has appeared for the Revenue. Both sides have relied on a number of rulings in support of their respective cases and we will refer to them at the appropriate stages.
8. That the question referred for our opinion is a question of law and is even an intricate question of law, can hardly be doubted amendment with itself has been repealed from March 16, 1985, by a later amendment with a saving clause and, therefore, the question will not hereafter arise except in pending proceedings from old Mysore area only. Even so, this court, on the very terms of the saving clause, is bound to examine and furnish its answer to the question referred by the Tribunal. A part from this, if the question is answered in favour of the assessee, that will result in substantial reduction of tax liability to her which also justifies this court to examine the question and furnish its answer. Sri Srinivasan, in our opinion, did not rightly urge to the contrary before us.
9. The Mysore Act was enacted in 1933 by His Highness the Maharaja of Mysore, who was the sovereign Ruler of the erstwhile Mysore State. The Mysore Act, a pre-Constitution Act, was enacted to enlarge the rights o Hindu women in the old Mysore Area. The Hindu Succession Act, 1956 (Central Act No. 30 of 1956) ('the Central Act'), which came into force from June 17, 1956, further liberalising the rights of Hindu women had not repealed the Mysore Act. Before the authorities and this court, both sides have proceeded on the assumption that the Mysore Act was in force in the old Mysore area and that, at any rate, section 8(1)(d) was not in conflict with the Central Act and that if the fact situation so justifies, that provision governs the claim of the assessee. We also proceed to examine the same on that basis only for purposes of this case.
10. Sri Bhat has urged that the term 'survivorship' occurring in section 8(1)(d) of the Mysore Act, a beneficial legislation, must be construed as even applying to cases of property passing on the partition and, so construed, the answer to the question must be in favour of the assessee.
11. Sri Srinivasan, in refuting the contention of Sri Bhat, has urged that the term 'survivorship', a well known expression of Hindu law, must receive the very meaning accepted by the courts and, so construed, it was but inevitable to answer the question against the assessee.
12. Section 8 of the Mysore Act which is material and on the construction of which the question hinges reads thus :
'Section 8 : Certain females entitled to shares at partition. - (1) (a) At a partition of joint family property between a person and his son or sons his mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue shall be entitled to a share with them.
(b) At a partition of joint family property among brothers, their mother, their unmarried sisters and widows and unmarried daughters of their predeceased undivided brothers who have left no male issue shall be entitled to share with them.
(c) Sub-sections (a) and (b) shall also apply mutatis mutandis to a partition among other coparceners in a joint family.
(d) Where joint family property passes to a single coparcener by survivorship, it shall so pass subject to the rights to share of the classes of females enumerated in the above sub-section.'
13. Even here, we are primarily concerned with the true scope and ambit of section 8(1)(d) only. Section 8(1)(d) of the Act very advisedly uses the expression that 'where the joint family property passes to a single coparcener by survivorship' and not to all cases of property passing on the death of a coparcener. In repelling the case of the assessee, the Tribunal has referred to the meaning given to the term 'survivorship' in Chambers Dictionary and has held against her But we are of the view that the Tribunal would have done well to ascertain its meaning, virtually a term of art, from any of the well known treatises on Hindu Law and Law Lexicons. Even to understand the term 'survivorship', we may briefly notice some of the principles of Hindu law that have a bearing on the same
14. The system or school of Hindu law prevalent in the old Mysore Area is the Mitakshara system of Hindu law.
15. A joint Hindu family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters bound together by the fundamental principle of sapindaship or family relationship which is the essence and distinguishing feature of the institution (vide Karsondas Dharamsey v. Gangabai  ILR 32 Bom 479). This body is purely a creature of law and cannot be created by act of parties save in so far that by adoption or marriage a stranger may be affiliated as a member thereof (vide Sudarsanam v. Narasimhulu  ILR 25 Mad 149). An undivided family which is the normal condition of Hindu society is ordinarily joint not only in estate but in food and worship and, therefore, not only the concerns of the joint family, but whatever relates to their commensality and their religious duties and observances are regulated by the members or by the manager to whom they have expressly or by implication delegated the task of regulation (vide Virada Pratapa Ragunanda Deo v. Brozo Kishore patta Deo  ILR 1 Mad 69; 3 IA 154 (PC). The joint family status being the result of birth, possession of joint property is only an adjunct of the joint family and is not necessary for its constitution (vide Haridas Narayandas Bhatia v. Devkuvarbai Mulji  : AIR1926Bom408 . Nor is it that all the members possess equal rights or status even though the property of the family is called joint family property.
16. A coparenary is a narrower body than a joint family and consists of only those persons who have taken by birth an interest in the property of the holder for the time being and who can enforce a partition whenever they like. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. Thus, while a son, a grandson, or a great-grandson is a coparcener with the holder of the property, the great-great-grandson cannot be a coparcener with with him, because he is removed by more than three degrees from the holder. The reason why coparcenership is so limited is to be found in the peculiar tenet of the Hindu religion that only descendants up to three degrees can offer spiritual ministration to an ancestor. Besides, only males can be coparceners, and all females are excluded from the coparcenary, because the test of coparcenership is the right to enforce a partition and no female has that right though females like wives and mothers may be allotted shares when a partition takes place. Though a common ancestor is necessary for the origination of a coparcenary, it may yet continue without him, consisting of collaterals and their descendants, some of them being removed more than three degrees from the deceased common ancestor (vide Yenumala v. Ramandora (6 MHCR 93); Girwurdharee v. Kalahul (4 SD 9) and Moro Vishwanath v. Ganesh  10 Bom HCR 444).
17. As seen earlier, a Hindu undivided family and a coparcenary are not one and the same in Hindu law. But, for purposes of taxation under the Act, as in other tax measures like the Income-tax Act, they are treated as one and the same.
18. Mulla in his Principles of Hindu Law, 15th edition (edited by S. T. Desai) neatly sums up the principle of 'survivorship' under the heading 'Survivorship' at para. 229 on page 299 in these words :
'On the death of a coparcener, his interest in the coparcenary property does not pass by succession to his heirs. It passes by survivorship to the other coparceners, subject to the rule that where the deceased coparcener leaves male issue, they represent his rights to a share on partition, and are his sole legal representatives for purposes of execution of money decrees passed against him.'
19. The term `survivorship' derived from the words `survive and survivor' have been defined as hereunder in The Law Lexicon of British India by P. Ramanatha Aiyar (1940 Edn.) :
'Survive : The word `survive' in its popular signification may mean over living a specified individual,' or `living beyond a specified event,' or it may mean `still living' or `living at some designated period of time'.
The primary meaning of the word `survive' is to live beyond the life or extent of, or to outlive; but it also has a secondary meaning, namely, to live after, and as used in the phrase, ' if either of my said sons should die without leaving a child which shall survive him', the testator could not have used the word `survive' in its ordinary acceptation, but in the sense of `who shall live after him'. There has been much discussion in the books as to the proper construction of the words `survive' and `survivor' when used in wills; but it is now settled by numerous decisions that the same rule of construction will be applied to these words as to any others, namely, that they shall be taken in their literal and ordinary import unless there is something in the context or attending circumstances which shows that they were used in a different sense.
Survivor : `Survivor' is usually applied to the longest liver of two or more partners or trustees, and has been applied in some cases to the longest liver or joint tenants and legatees, and to others having a joint interest in anything.
Romilly M. R. said : `My opinion is, that the meaning of the word 'survive' or 'survivor' imports that a person who is to survive must be living at the time of the event which he is to survive. I have consulted several dictionaries on this subject. I have consulted Johnson and Richardson and the Authorities cited by them; and in all instances it appears to me to mean to `outlive', that is, to be alive at the time of a particular event, or the death of a particular person, which event or person the other is to survive. It is true that Dr. Johnson puts as one of the meanings 'to live after another'... But all the passages from the English writers cited tend to the conclusion that the person who survives an event, must be living at the time when that event takes place, and that 'to live after', is somewhat ambiguous in itself '. On a context, `survive' has been construed `to live after'. (Re Clark (13 WR 115; 3 DGJ & S 111))'.
20. Survivorship : The living of one of two or more persons after the death of the other or others. In relation to property the condition that exists where a person becomes entitled to property by reason of his having survived another person who had an interest in it.
`Title by survivorship' exists only when the estate is held in joint ownership (as) among Hindu coparceners governed by the Mitakshara law.'
21. From these meanings that are apposite, it is clear that 'survivorship' is different from partition.
22. When property of a coparcener passes by survivorship, the legal incidents of the same are entirely different from the legal incidents that ensue on allotment of a share at a partition to a coparcener or a member of a Hindu undivided family. Both are separate and distinct. Both in law and fact, they are separate and distinct and can never be treated as one and the same. To treat them as one and the same, is to throw overboard the well-settled principles of Hindu law that have never been in doubt at any time.
23. Section 8(1)(d) of the Mysore Act very advisedly uses 'when property passes to a single coparcener by survivorship' and not to allotment at a partition or by any other mode of devolution. Admittedly, the properties did not pass to the deceased, Manjunatha Gowda, by survivorship but was allotted to him at a partition. If that is so, section 8(1)(d) of the Mysore Act does not help the assessee to sustain her claim that the 1/5th share of the deceased had passed to his unmarried daughter.
24. That section 8 of the Mysore Act is a beneficial piece of legislation enacted to enlarge the rights of Hindu women is absolutely correct. But that provision must also be interpreted as not to rewrite the same and throw overboard the well settled principles of Hindu law. We are of the view that the construction suggested by Sri Bhat would really amount to legislation in the thin guise of interpretation which is impermissible.
25. We are also of the view that the principles enunciated in Heydon's case (3 Co Rep 7a) or in Smith v. Hughes  1 WLR 830, noticed and dealt with by Maxwell on the Interpretation of Statutes (Twelfth Edition) under the heading 'The other main Principles of Interpretation', at pages 40 to 43, do not really bear on the construction of section 8(1)(d) of the Mysore Act and do not assist Shri Bhat.
26. We have carefully read the ruling of the Supreme Court in Nagendra Prasad v. Kempananjamma, : 1SCR124 , which affirmed the decision of a Division Bench of this court between the same parties reported as Nagendra Prasad v. Kempanajamma  1 Mys LJ 600, and the other rulings of this Court and the former Mysore High Court which had occasion to interpret section 8(1)(d) of the Mysore Act noticed by the Supreme Court. We are of the view that every one of those rulings do not really help the assessee to sustain her claim.
27. On the foregoing discussion, we hold that the Tribunal and the Assistant Controller Estate of Duty were right in disallowing the claim of the assessee and the Appellate Controller was in error in accepting the same. From this, it follows that our answer to the question referred to us must be in the affirmative, against the assessee and in favour of the Revenue.
28. In the light of our above discussion, we answer the question referred to us in the affirmative, against the assessee and in favour of the Revenue. But, in the circumstances of the Case, we direct the parties to bear their own costs.