1. The first effective ground in this estate duty appeal by the accountable person is that the Appellate Controller should have held that the estate duty payable was to be allowed as deduction from the principal value of the estate. It is fairly admitted by the counsel for the accountable person that the question herein has been the subject-matter of consideration by the various High Courts and that all the High Courts have decided the question against the claim. He, however, submits that the matter is pending before the Supreme Court and, therefore, wants to keep the issue alive.
2. We find that the Karnataka High Court in the case of Smt. V. Pramila v. CED  99 ITR 221, the Andhra Pradesh High Court in the cases of CED v. Estate of Late Omprakash Bajaj  110 ITR 263 and CED v.Smt. P. Leelavathamma  112 ITR 739, the Gujarat High Court in the case of Smt. Shantaben Narottamdas v. CED  111 ITR 365 and the All-ahabad High Court in the case of Maharani Raj Laxmi Kumari Devi v.CED  121 ITR 1002 have held the estate duty payable was not to be deducted from the principal value of the estate. Following respectfully the aforesaid decisions, we uphold the order of the Appellate Controller in this behalf.
3. The second and the last ground in this appeal is whether some provision for maintenance and marriage expenses of the unmarried daughters and widows of the family should be made before computing the value of the deceased's interest in the joint family property.
4. It is common ground that the deceased has been the karta of his joint Hindu family and that he is survived by his widow (who has no share on partition in this case), two sons and one unmarried daughter.
The value of the joint family property is Rs. 1,15,460. However, the accountable person claimed that before computing the deceased's interest in the joint family property on the basis of a notional partition, it was necessary to make provision by setting apart a sum of Rs. 40,000 out of the joint family property for the maintenance of the widow and the unmarried daughter as also for the marriage expenses of the unmarried daughter. In this manner she computed the value of the deceased's interest at Rs. 25,155, i.e., one-third (of Rs. 1,15,460 minus Rs. 40,000). The departmental authorities, on the other hand, held that there was no scope for setting apart the sum of Rs. 40,000 as aforesaid and that the value of the deceased's interest was Rs. 38,488, i.e., one-third of Rs. 1,15,460.
5. There is no dispute that the value of the deceased's interest in the joint family property is to be included in the principal value of the estate under Section 7 of the Estate Duty Act and that Section 39 of the Act provides that such an interest will be the share in the joint family property which would have been allotted to the deceased had there been a partition immediately before his death. Thus, for the purpose of computing the value of the deceased's interest, one has to contemplate a notional partition as envisaged under the Shastrie Hindu Law. In this connection reference may usefully be made to Article 304 of Mulla's Hindu Law which defines 'property available for partition' as the joint family property as reduced by the provision to be made for the maintenance and marriage expenses of such members of the family who are not entitled to a share on partition. It is pertinent that in the State of Tamil Nadu unmarried daughters and widows are members of the family but are not entitled to shares on partition.
6. A similar question, it seems, came up for consideration before the Madras High Court in the case of Karupanna Gounder v. Chinna Nachhamal AIR 1974 Mad. 379. The deceased in that case was the karta of the joint Hindu family. He was survived by his widow, one son and five daughters one of whom was unmarried. The unmarried daughter claimed that besides the share she would get in the share of her father's interest in the joint family property, she was entitled to some amount by way of provision for maintenance and marriage expenses out of the joint family property. The claim was negatived by the Madras High Court in these words : The maintenance is a matter for which provision is made in the Act and therefore any one claiming maintenance which takes in the marriage expenses of unmarried daughter under Section 3(6) of the Act], would have to work his/her rights only under the provisions of the Act and the textual Hindu law cannot be invoked at all. It cannot, therefore, be contended that the abrogation of the textual law under Section 4 of the Act would be limited to the maintenance right in lieu of the estate of the deceased only and that such textual law as against the remaining part of the joint family property cannot be said to have been abrogated.
7. Fairly admitting that the point at issue is broadly covered by the Madras High Court's aforesaid decision against the accountable persons, Shri Kumbhat, the learned counsel for the accountable persons, contended that the aforesaid decision was distinguishable. He stated that there was no partition as in the present case and we were only to compute the value of the deceased's interest in the joint family property on the assumption of partition in the family immediately before his death. It is pointed out that the Hindu Adoptions and Maintenance Act makes provision for the maintenance of dependent members of the family vis-a-vis the property of the deceased and not the property out of which the deceased gets by way of his share. Shri Kumbhat thus submits that the obligation as regards maintenance of the dependent members of the family is both on the individual and the HUF.While, after passing of the Hindu Adoptions and Maintenance Act, the obligations of the individual are and can only be governed by that Act only, the obligation as regards HUF's property, about which there is no provision made in the Hindu Adoptions and Maintenance Act, will have to be governed by the Shastric Hindu law. Alternatively, it is urged that an unmarried daughter may not be entitled to claim maintenance by way of right [the issue pressed before the Madras High Court (supra)].
However, it may not be very correct to say that for the purpose of determining the property available for partition in terms of Shastrie Hindu law, provision cannot be or should not be made for the mainte-nance and marriage expenses of the unmarried daughters and widows of the family.
8. The learned standing counsel has submitted that the point at issue is squarely covered by the aforesaid Madras High Court decision and that it is not open to us to distinguish the said decision on the ground that a particular argument or contention was not raised or was not considered by the High Court in its aforesaid decision.
9. We have considered rival contentions carefully. It appears that Article 304 of Mulla's Hindu Law which provides for determination of 'the property available for partition' before actual notional partition can take place has not been considered as such by the learned Judges of the Madras High Court. The distinction drawn before us by the learned counsel that the provisions of the Hindu Adoptions and Maintenance Act refer to the maintenance qua deceased own property only and not the joint family property in which the deceased also had an interest and, therefore, that the Act may not modify or affect the maintenance provisions as regards joint family property under the Shastrie Hindu law, also seems apparently significant. However, the issue is squarely covered by the Madras High Court decision (supra) and it is not open to us to distinguish it on the ground that some relevant aspects were not considered in that case. The propriety demands of us to assume that all such aspects were considered but their Lordships did not consider it worthwhile to refer to them in their order. Therefore, respectfully following the said decision, we hold that there is no justification for provision as regards maintenance and marriage expenses of the unmarried daughter and the widow before computing the property available for partition so as to further determine the deceased's interest in the said property.