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Assistant Controller of Estate Vs. Shambhuprashad Tibrewala - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Jabalpur
Decided On
Judge
Reported in(1985)11ITD378Jab
AppellantAssistant Controller of Estate
RespondentShambhuprashad Tibrewala
Excerpt:
.....before us.6. in the case of alladi kuppuswami (supra), the hon'ble supreme court held that a hindu widow succeeding to the interest of her husband in a hindu coparcenary by virtue of section 3(2) and (3) of the hindu women's rights to property act, 1937, undoubtedly, possessed a coparcenary interest as contemplated by section 7(1) of the 1953 act.although she cannot be a coparcener, yet she is a member of the hindu coparcenary as envisaged by section 7(1). the hon'ble court made observations to the effect that on her death prior to the coming into force of the hindu succession act, there is a cesser of her interest and by reason of the inclusive part of section 7(1), her interest must be deemed to pass on her death and would be exigible to estate duty.such interest, the hon'ble.....
Judgment:
1. This appeal by the revenue is directed against the order of the Appellate Controller, dated 23-4-1981, relating to the assessment of the estate of deceased Smt. Tamkori Devi, Tibrewala, Jabalpur.

2. The issue before us that whether, on the facts and in the circumstances of the case, the Appellate Controller erred in holding that the deceased had no coparcenary interest in the property of the HUF of which she was a member and, as such, her interest in the coparcenary property is not includible under the Estate Duty Act, 1953 ('the Act'), after passing of the Hindu Succession Act, 1956.

3. The parties have been heard at length. Before we come to the legal aspects of the issue, it would be necessary to bring into focus factual background of the case which is as under. The husband of late Smt.

Tamkori Devi died long ago prior to coming into force of the Hindu Succession Act. After the death of her husband, the family consisted of Smt. Tamkori Devi widow, her son, Shambhuprashad, and three unmarried daughters. Smt. Tamkori Devi died on 3-11-1976 leaving behind her son, Shri Shambhuprashad, who is the accountable person for the purpose of estate duty proceedings before us. It is a common ground that before her death, Smt. Tibrewala had not claimed partition of the joint family properties, nor there was any partition effected by the said members.

She died intestate.

4. Return for estate duty was filed on 2-9-1977. During the course of assessment proceedings, the Assistant Controller found that the joint family assets consisted of immovable property, in the form of capital account of Rs. 1,23,878. He issued a notice to the accountable person to show why the interest of the deceased in this amount may not be included in the chargeable estate of the deceased. The accountable person claimed that a sum of Rs. 45,000 out of the above amount is a provision for marriage of the three unmarried daughters. However, the Assistant Controller, after discussion with the accountable person and his counsel, allowed Rs. 30,000 out of the capital amount of Rs. 1,23,878 as deduction for the marriage of three unmarried daughters.

The balance of the amount of Rs. 93,878 was divided into two portions, that is, one-half each for the deceased and her son. Thus, the sum of Rs. 46,939 was arrived at as the deceased's coparcenary interest in the HUF property that passed on her death. This was included in the chargeable estate of the deceased in the assessment made by the Assistant Controller. The accountable person felt aggrieved and took the matter before the Appellate Controller.

5. The Appellate Controller accepted the contention of the accountable person that after the coming into force of the Hindu Succession Act, the coparcenary interest of the deceased was not chargeable to estate duty because the judgment of the Supreme Court in the case of CED v.Alladi Kuppuswami [1977] 108 ITR 439 was not applicable to the facts of this case. Hence, the grievance of the revenue before us.

6. In the case of Alladi Kuppuswami (supra), the Hon'ble Supreme Court held that a Hindu widow succeeding to the interest of her husband in a Hindu coparcenary by virtue of Section 3(2) and (3) of the Hindu Women's Rights to Property Act, 1937, undoubtedly, possessed a coparcenary interest as contemplated by Section 7(1) of the 1953 Act.

Although she cannot be a coparcener, yet she is a member of the Hindu coparcenary as envisaged by Section 7(1). The Hon'ble Court made observations to the effect that on her death prior to the coming into force of the Hindu Succession Act, there is a cesser of her interest and by reason of the inclusive part of Section 7(1), her interest must be deemed to pass on her death and would be exigible to estate duty.

Such interest, the Hon'ble Court held has to be valued in accordance with Section 39 of the Act. Under Section 39, the value of the benefit accruing or arising from the cesser of her coparcenary interest has to be determined by taking the principal value of the share in the joint family which would have been allotted to her had there been a partition immediately before her death.

7. In the case of Suketu Jayantilal Shah v. CED [1975] 100 ITR 439, a case came before the Gujarat High Court with the following facts. One Jayantilal Shah expired in 1944. He died in jointness with his wife, Subhadra, two sons and an unmarried daughter. The said joint family owned certain shares, loans, jewellery and immovable properties including agricultural lands. Under Section 3(2) of the Hindu Women's Rights to Property Act, 1937, on the demise of the said Jayantilal Shah, his widow, Subhadra, acquired the same interest in the joint family properties which her husband had at the time of his demise.

After the death of Jayantilal Shah, his widow, Subhadra, and their two sons and one unmarried daughter continued in jointness. The widow died on 14-11-1959, leaving behind her, two sons and one unmarried daughter who along with her constituted a joint Hindu family as stated above.

Smt. Subhadra had not claimed the partition of joint family properties before her death nor there was any partition effected amongst the said members.

8. On the above facts, the Hon'ble Gujarat High Court held that the widow, who acquired the interest of her deceased husband under Section 3(2), and who was possessed of the said interest on the coming into force of the Hindu Succession Act, became the absolute owner of that estate by operation of law under section 14 of the said Act and, thus, she would have all the rights of a full owner to possess, manage, and enjoy exclusively and of disposal either by any act inter vivos or by will the said estate. On her death intestate, her interest in the joint family properties would pass and devolve by succession on her heirs and to that extent it would be required to be included in the estate liable to pay duty under the Act. The Hon'ble Court further clarified that in any case, the widow having become the absolute owner of the share which she inherited from her husband, would be competent to dispose it of, it being an incident of full ownership, and, therefore, her interest would be deemed to be property passing on her death under Section 6 of the Act.

9. In another case of Goswami Vrajraiji Ranchhodlalji Maharaj v. CED [1978] 112 ITR 851, the Gujarat High Court considered the case of estate duty on the following facts. One R died in 1920 leaving behind his wife VP, his son VR and his mother T. VR had a son, L. The widow, VP, died on 30-8-1962. The Assistant Controller held that she was entitled to one-half of the family property. He valued that share at Rs. 5,26,012 for the purpose of estate duty. His order was upheld on appeals before the Appellate Controller and the Tribunal.

10. On a reference to the Hon'ble High Court, at the instance of the assessee, it was held that the widow of a member of a Hindu joint family is put in the place of her husband and the husband's interest in the joint family property, though indefinite, would vest immediately upon his death in his widow. The widow who acquired the interest of her deceased husband under Section 3(2) of the Hindu Women's Rights to Property Act, and who was possessed of the said interest on coming into force of the Hindu Succession Act became the absolute owner of estate by operation of Section 14. Thus, she would have all the rights of a full owner and would be competent to dispose it of which is an incident of full ownership. Therefore, her interest would be deemed to be property passing on her death under Section 5 or Section 6 of the Act.

The right which has been given to Hindu women under the Hindu Women's Rights to Property Act is also in lieu of partition. Therefore, if a notional partition were to take place shortly before VP's death, she would not be allowed to share twice over, namely, one under ordinary Hindu law and again under the Hindu Women's Rights to Property Act.

Therefore, at the time of the notional partition before VP's death, she would not be entitled to any share except that which she gets under the Hindu Women's Rights to Property Act. The Hon'ble Court, therefore, observed that the Tribunal was right in holding that the deceased widow was the absolute owner of one-half of the HUF property and that the same passed on her demise.

11. From the above position of law brought out by the Hon'ble Courts with regard to the rights of a widow in the coparcenary property, it becomes clear that on the death of Smt. Tamkori Devi, her coparcenary interest in the capital account of the HUF, which was its only joint family property, passed on her death and was includible into the chargeable estate by virtue of Sections 5, 6, 7 and 39. The AAC, therefore, erred in holding that the deceased had no coparcenary interest in the property of the HUF of which she was a member and that the interest of the deceased in the coparcenary property is not includible in the estate of the deceased after the coming into force of the Hindu Succession Act. We, therefore, reverse his order and restore in its place the order of the Assistant Controller.


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