1. This appeal by the department arises out of the proceeding for assessment of estate duty. The deceased, Shri Nalinbhai B. Munshaw, died on 16-2-1976. At the time of his death, he was a member of HUF governed by the Mitakshara law. Section 34(1)(c) of the Estate Duty Act, 1953 ('the Act'), lays down that for the purpose of determining the rate of the estate duty to be paid on any property passing on the death of the deceased, in the case of property so passing which consists of a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara law, interest in the joint family property of all the lineal descendants of the deceased member shall be aggregated so as to form one estate and estate duty shall be levied thereon at the rate or rates applicable in respect of the principal value thereof. The Assistant Controller aggregated the interests of all the lineal descendants of the deceased under this provision. In the appeal filed by the accountable person, the Controller (Appeals) relied on the two decisions of the Tribunal rendered in 1975 and 1981 in which it was held, following the decision of the Madras High Court in V. Devaki Ammal. v. ACED  91 ITR 24, that Section 34(1)(c) was unconstitutional and deleted the said aggregation for calculating the rate of estate duty. The department has now come in appeal before us.
2. Shri L.N. Joy, the learned departmental representative, relied before us on several decisions of" the High Courts, wherein it has been held that Section 34(1)(c) was constitutional. The decisions relied on by him are: N.V. Somaraju v. Government of India  97 ITR 97 (AP), Hari Ram v. ACED  101 ITR 539 (Punj. & Har.), Badri Vishal Tandon v. ACED  103 ITR 468 (All.), S. Devendra Singh v. CED  136 ITR 176 (All.) and Ramniklal J. Daftary v. CED  136 ITR 422 (Guj.).
3. The learned representative for the assessee, on the other hand, relied on the decisions of the Madras High Court in V. Devaki Ammal's case (supra) and CED v. R.K. Chettiar  125 ITR 605, wherein it has been held that the said provision was unconstitutional. He also relied on the decision of the Tribunal in CED v. C.C. Dalai [ED Appeal No. 23 (Bom.) of 1980 decided on 5-3-1981], wherein on the basis of the decision of the Madras High Court and also the decision of the Tribunal in ED Appeal No. 19 (Bom.) of 1974-75 dated 13-5-1975, it was held that the said aggregation should not be made under Section 34(1)(c). Shri Desai further relied on the fact that the Supreme Court has dismissed the special leave petition filed by the department against the decision of the Madras High Court in R.K. Chettiar's case (supra).
4. We have considered the rival submissions. We find that the question of constitutional validity of Section 34(1)(c) had come up for consideration before a large number of High Courts. All the High Courts before whom this question came up for consideration, except the Madras High Court, have taken the view that the said section was not ultra vires the constitution. Thus, the preponderance of the judicial view is that the said provision is constitutionally valid. No decision of the Bombay High Court has been brought to our notice. In the circumstances, we deem in proper to follow the preponderant view which is found enunciated in the decisions of the other High Courts. As regards the dismissal of the special leave petition against the decision of the Madras High Court in R.K. Chettiar's case (supra) Shri Desai has relied on the information published in  143 ITR (St.) 67 wherein it has been mentioned that the Supreme Court had dismissed special leave petition by the department against the judgment dated 15-4-1980 of the Madras High Court in R.K. Chettiar's case (supra), whereby the High Court, on a reference, had held that where the lands were gifted by the deceased but the income therefrom was used by him in his business, the value of lands gifted could not be included in the principal value of the estate, and also had further held, following V. Devaki Ammal's case (supra) that the interests of the lineal descendants could not be included in the ancestral property. From the above note published in the Statute portion of the Income-tax Reports, it is not clear whether the special leave petition had been sought by the department on both the questions that had arisen for decision in R.K. Chettiar's case (supra) or whether the special leave petition had been sought only on one of those two questions. Besides, since the Supreme Court has already granted the special leave petition against the decision of the Madras High Court in V. Devaki Ammal's case (supra), it follows that the question of constitutional validity is before the Supreme Court pending for final adjudication. That matter does not stand concluded by the dismissal of special leave petition in R.K. Chettiar's case (supra). Consequently, we are not inclined to follow the decisions of the Madras High Court in the cases of V. Devaki Ammal (supra) and R.K.Chettiar (supra), solely on the ground that the special leave petition against the latter decision has been dismissed by the Supreme Court.
5. As far as the decisions of the Tribunal are concerned, those decisions are of the years 1975 and 1981. The learned representative for the assessee expressly stated before us that he was not aware of any decision of the Tribunal rendered in subsequent years which had followed the view of the Madras High Court in preference to the preponderance of the view of the other High Courts. At the time when the two decisions of the Tribunal were given in the years 1975 and 1981, the decisions of several other High Courts were not available before the Tribunal for consideration. In fact, in the decision of the Tribunal cited before us, there is reference to a decision of the Andhra Pradesh High Court, which has been distinguished by the Tribunal. Since, at the present, we have before us decisions of large number of the High Courts, which have taken a view contrary to that taken by the Madras High Court, we would follow the decisions of those High Courts in preference to the decision of the Madras High Court on this point. We may mention here that in the Madras High Court, the earlier view was that the said provision was constitutional--PL.S.RM.Ramanathan Chettiar v. ACED  76 ITR 402 (Mad.).
6. It is true that when two views are reasonably probable relating interpretation of a particular provision of statute, the one which is in favour of the assessee should normally be preferred. However, where there is difference of opinion on the question whether a particular provision of a statute was constitutionally valid, the view in favour of constitutional validity should normally be accepted, particularly when the said view is taken by majority of the High Courts before whom the question came up for consideration. In this view of the matter, we prefer to follow the decisions of other High Courts rather than those of the Madras High Court on the question of the constitutional validity of Section 34(1)(c). Accordingly, we set aside the order of the Controller (Appeals) on this point and restore that of the Assistant Controller.