1. We are concerned here with the estate of Smt. Purbai Velji Mulji.
Shri Velji Mulji, the husband of the deceased, died sometime in 1919 leaving behind him his widow, i.e., the deceased in the present case, his son-Shri Kunverji Velji, the accountable person in this case and a daughter. Kunverji Mulji was aged seven years at that time. He was, thus, a minor for whom the natural guardian was his mother, i.e., the deceased. Shri Velji Mulji was a partner in the firm of Ghampshi Bhara & Co. The deceased was not a partner in the said firm. In 1929 she purchased certain properties stated to be from the assets of her husband. On 8-5-1934, the deceased executed a trust settlement. It was recited in the trust deed that she was the absolute owner of certain properties mentioned in the trust deed. On her death, the accountable person, viz., Shri Kunverji Velji Mulji, informed the Assistant Controller that the property under consideration was purchased by the deceased out of the assets left by the husband of the deceased. She acquired no interest in the property, according to the Hindu law as then existing. Therefore, on her death, no property passed. The Assistant Controller, however, did not accept the plea on behalf of the accountable person. He held that the property enumerated in the trust deed passed on the death of the deceased, which is subjected to the Estate Duty, valuing it at Rs. 5,58,000.
2. The accountable person appealed before the Appellate Controller unsuccessfully, which came up as ED Appeal No. 99 (Bom.) of 1970-71 decided on 29-11-1972. The Tribunal felt that the matter was not properly investigated and restored the matter to the file of the Assistant Controller to ascertain the nature of the ownership by the deceased.
3. The Assistant Controller made a fresh assessment in pursuance of the Tribunal order. The Assistant Controller accepted that the property belonged to the HUF of the late husband of the deceased. As to the interest of the deceased in the property, he held that according to the Mayukh School of Hindu law, which was applicable to the deceased, after the death of the husband, the widow was entitled to a share equal to that of her son. There being only one son at the time of the death of the husband of the deceased, the share of the deceased in the property was half, which, according to him, was deemed to pass under Section 7 of the Estate Duty Act, 1953 ('the Act'). He valued her half share at Rs. 4,85,000 on the date of the death of the deceased.
4. On an appeal by the accountable person, the Appellate Controller accepted the plea of the accountable person that no property passed on the death of the deceased as her husband had died prior to 1937 before the passage of the Hindu Women's Rights to Property Act, 1937. She had no interest in the property. All that she had was merely a right of maintenance and, therefore, on her death on 12-3-1967, no property passed. Further, he supported his order by the Andhra Pradesh High Court decision in the case of Yelukuru Satyanarayana v. ACED  43 ITR (ED) 51.
5. The revenue is, therefore, in appeal against the order of the Appellate Controller on the ground that the Appellate Controller had erred in not considering the Supreme Court decision in the case of CED v. Alladi Kuppuswamy  108 ITR 439 and the Gujarat High Court decision in the case of Suketu Jayantilal Shah v. CED  100 ITR 439. On behalf of the accountable person, it is brought to our notice that the property is undisputedly a HUF property as already accepted by the Assistant Controller. The husband of the deceased died in 1919. All that the deceased acquired on his death was right of maintenance. It was not even a widow's estate. On the passage of the Hindu Women's Rights to Property Act, by the operation of Section 4 thereof, her right was not enlarged in any manner. Further, by the passage of Hindu Succession Act, 1956, it made no difference to her rights in the property.
6. We have carefully considered the facts and circumstances of the case and the submissions on either side. The property under consideration is undisputedly an HUF property of which Velji Mulji, the husband of the deceased, was the karta. At the time of the death of Velji Mulji, the family consisted of his widow, the deceased in the present case, Kunverji Velji, the accountable person in the present case and a daughter. The deceased acquired no right in the property except a right of maintenance. By operation of Section 4 of the Hindu Women's Rights to Property Act, she acquired no further right. Therefore, on her death no property passed. In this connection, the following extract from the Supreme Court decision in the case of Alladi Kuppuswamy (supra) may be profitably referred to, which summarises the legal position in respect of a woman, who was widowed prior to 1937 : In order to understand the content and character of the interest which a Hindu widow gets by virtue of the statutory provisions contained in the Act of 1937, there can be no doubt that, prior to the passing of the Act of 1937, a Hindu woman had no right or interest at all in a Hindu coparcenary. She was neither a coparcener nor a member of the coparcenary nor did she have any interest in it, except the right to get maintenance. She also had no right to demand partition of the coparcenary property after the death of her husband. The Act of 1937 introduced broad and important changes by bettering the rights of a Hindu widow and conferring on her the same interest as possessed by her husband....
Under Section 4 of the aforesaid enactment, more rights were conferred on a woman losing her husband after 1937. But the rights of the woman losing her husband prior to 1937 remained the same. As to the reliance on behalf of the revenue on the Supreme Court decision in the case of Alladi Kuppuswamy (supra) and the Gujarat High Court decision in the case of Suketu Jayantilal Shah (supra) as rightly pointed out by the learned representative for the accountable person, both these cases referred to the women, who lost their husbands after 1937. Clearly, therefore, the dicta laid by these Courts in these decisions has no application to the facts of the present case. In our opinion, therefore, the Appellate Controller was fully justified in deleting the value of this property from the estate of the deceased.