Chandra Reddy, C.J.
1. The following question is referred by the Central Board of Revenue under Sub-section (1) of Section 64 of the Estate Duty Act 1953 (Act XXXIV of 1953) for the opinion of this Court:
'Whether on the facts and circumstances of the case, the deceased's share in the joint family property has been correctly taken as one half under Section 39 of the Act.'
2. The facts leading to this reference are briefly these. One Poonamchand died on 19-11-1954 at Hyderabad leaving behind him his son Motilal and his widow. A statement of account in form E. D. was filed by the accountable person before the Assistant Controller of Estate Duty, Special Estate Duty-cum-Income-tax Circle, Hyderabad declaring an estate of Rs. 81,803/-. The assessing authority determined the principal value of the deceased's estate at Rs. 1,76,890 as against Rs. 81,803 declared by him after notice to the accountable person.
While agreeing to substitute the valuation as suggested by the proper officer, he objected to the valuation of the cesser of interest which the deceased had in the coparcenary property. Though originally the contention was that this cesser of interest should be valued at 1/4 of the total value, ultimately the stand taken by him was that the cesser of interest of the deceased was to be taken at 1/3 since the deceased, his wife and the accountable person were each entitled to one share. It was urged that the parties were governed by the Benares school of Hindu Mitakshara law and hence his mother was also entitled to a share equal to that of the father, if there was a partition in the family.
3. The Assistant Controller of Estate Duty did not accept the contention of the accountable person on the ground that the mother, was not entitled to a share on partition between the father and sons on two grounds viz. (i) that the family due to its long stay in Hyderabad State was deemed to have adopted the local customs and, as such, was governed by the Madras School of Mitaksham Hindu Law and (it) that a Marwadi scholar well versed in Hindu dharma opined that, according to the custom prevailing among marwadis, the mother was not entitled to a share on partition between the father and the sons.
He observed that though the accountable person was requested to produce evidence to show that at a partition in the family of the deceased or of any other relative a share had been allotted to the mother he was unable to cite any case among any of the marwadi families where such a share had been allotted. For these reasons the concerned officer thought that though the ancient texts allowed a share to the mother on partition, the practice had fallen into disuse for the past several centuries and, as such, it was necessary to presume that the principle kid down in the ancient texts came to be modified by the influence of custom. In the result, he held that the deceased had 1/2 share in the coparcenary property and calculated the dutiable estate of the deceased at Rs. 1,76,890/-.
4. The appeal preferred by the assessee to the Central Board of Revenue under Section 63 of the Act was dismissed. The reasons in support of the dismissal of the appeal in this regard are contained in the following words:
(1) It has been admitted that the forefathers of the deceased had migrated to the Hyderabad State and had settled down there and had since adopted some of the local customs and manners. It is admitted by all the authorities that in South India, the rules of Mitakshara Law of allotting a share to the wife have long since become obsolete, vide Mayne's Hindu Law (11th edition page 531) and Mulla's Hindu Law (10th Edition page 315). Hence, the family of the deceased was taken to have been influenced by the local customs in the matter of partition to the extent that the practice of Madras school of not allotting a share to the wife had come to be adopted as personal law.
(2) Since a female member was not entitled to a share in this case on partition under customary law, the valuation of the share of the deceased has to be determined on the basis of a notional partition as between the deceased and his son only.
5. Thereupon, the person accountable requested the Central Board of Revenue to make a reference under Section 64 for the opinion of this Court on various issues. The Board was inclined to state a case for the opinion of the court only in regard to the question of law mentioned above.
6. At the outset, it should be borne in mind that the appellate authority docs not rest its decision on the practice of allowing a share to the mother on partition having fallen into disuse for some centuries and that the ancient texts came to be modified by the influence of custom. Even otherwise this view could not be maintained. The non-assertion of rights by the mother or the wife of a Hindu in several cases does not make Such a right obsolete. It may be that in most of the cases the mother or the wife might not insist on the recognition of such a right. But that does not put an end to the claims of the mother or the wife to be allotted a share at the time of the partition.
7. The only question is whether in law she is entitled to a share at the time of the partition. That the position of the mother of a Hindu to whom the Benares school of Mitakshara law is applicable still remains unchanged in this behalf is evident from Pratap Singh v. Dalip Singh, AIR 1930 All 537. This case has reviewed the law on the subject exhaustively. It is apparent from that case that so far as the right of the mother to a share was concerned, it was never in doubt. Sea Bilaso v. Dinanath, ILR 3 All 88 and Beti Kunwar v. Janki Kunwar, ILR 33 All 118. Mt. Dular Koeri v. Dwarkanath, ILR 32 Cal 234, discloses that even a wife has a right to a share at the time of the partition.
8. No ruling has been cited, to us which has negatived the claim of a mother or a wife of a Hindu governed by Benares school of Mitakshara law to a right. AIR 1930 All 537, lays down that the fact that the mother had not put forward a claim for a share in the previous partition, would not amount to acquiescence of no right. Thus, there is no foundation for the opinion that under the Benares school of Mitakshara law, the mother or the wife had ceased to be entitled to a share at the time of the partition. Further, the emigrated family would be governed by the family law as it was when they left and not as it existed at the time the rights of the parties fall to be determined.
9. We will now see whether there is any basis for the decision of the appellate authority. The Central Board took the view that the family of the deceased was taken to have been influenced by local customs for the reason that the fore-fathers of the deceased had migrated to Hyderabad State and had settled down there and 'had since adopted some of the local customs and manners'. In this connection, we have to mention that the only admission that seems to have been made before the Assistant Controller was that the family of the accountable person had been staying in Hyderabad for a long time.
It appears from the order of the Assistant Controller that, when it was put to the accountable person that owing to long stay in Hyderabad State, the family should be deemed to have adopted local customs and as such was governed by the Madras School of Mitakshara law, it was submitted on his behalf that the deceased belonged to the manvadi family, that marwadis were governed by the Benares School of Mitakshara Hindu Law and that, as per that school the wife of the deceased was entitled to a share. This makes it clear that there-was no admission by or on behalf of the accountable person that they had adopted some of the local customs and manners.
10. Even on the footing that such an admission was made, it could not be assumed that they were influenced by local customs in the matter of partition to the extent that the practice of the Madras school of not allowing a share to the wife had come to be adopted as personal law.
11. It is well established that where a Hindu, family migrates from one part of the country to another, prima facie, they carry with them their personal law in regard to matters of succession etc. It is on the person who asserts that such a Hindu had adopted the new local custom to affirmatively prove it. It is not for the descendants of the Hindu, who have migrated, to make out a case that they have not renounced the personal law. In Abdur-rahim v. Halimabai, AIR 1915 PC 86, the Privy Council laid down the dictum that where a Hindu family migrates from a part of India to another, prima facie, they carry with them their personal law and if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted.
12. We may here also refer to a passage from Mulla's Hindu Law, 11th Edition, occurring at page 14:-
'Where a Hindu family migrates from one State to another, the presumption is that it carries with it its personal law, that is the laws and customs as to succession and family relations in the State from which it came. But this presumption may be rebutted by showing that the family has adopted the law and usage of the province to which it has migrated.
It is the law existing at the time of migration which continues to govern the migrated members until it is renounced. It is the law in force in the State at the time of their leaving it which continues to govern persons who have migrated to another State.'
To a similar effect is the statement of law contained in Mayne's Hindu Law. It is manifest that unless the Revenue Board has any material which would rebut that presumption it must be taken that they are still governed by the law in force in the territory at the time they migrated. There is no trace of renunciation of personal law by the family or the accountable person. That being the position even if there has been some change in law in this regard, that would not alter the rights that would accrue under the law existing at the time of migration.
13. In this case, the Asst. Controller had thrown the onus of proving that they had not given up the usages bearing on succession etc., and not adopted the local customs and usage in respect thereof on the accountable person as is apparent from his order (vide last paragraph, page 6 of the printed papers).
14. In these circumstances, our answer is that the deceased's share in the joint family property has to be taken as 1/3 under Section 39 of the Act. The accountable person is entitled to his costs. Advocate's fee is fixed at Rs. 250/-.