B.J. Divan, C.J.
1. In this case at the instance of the accountable person the following question has been referred to us for our opinion by the Tribunal :
'Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the deceased widow, as a member of the Hindu undivided family, was the absolute owner of one-half of the Hindu undivided family's property and that the same passed on her demise ?'
2. The facts leading to this case are that in the instant case we are concerned with the estate of Vraj Priya Bahuji Maharaj Goswami, who died on August 30, 1062, though in the statement of the case, her date of death is stated to be August 15, 1960. Vraj Priya was the widow of one Ranchhodlalji who died in 1961. Ranchhodlalji was the son of Madhusudanlalji who died some time in 1920. Madhusudanlalji had left behind him his wife, Tati, who was alive at the time of Vraj Priya's death and who we are informed is alive even to-day. At the time of Vraj Priya's death, Ranchhodlalji's son, Vrajraiji, was alive and he is the accountable person before us. Vrajraiji's son, Lalan, who was born on November 12, 1959, was also alive at the time of Vraj Priya's death. Thus it is obvious that at the time of his death Rachhodlalji was the karta of the Hindu undivided family of which the members were his son, Vrajraiji, and his wife, Vraj Priya. Prior to her death, Vraj Priya had not asked for any partition though she was entitled to do so by virtue of the right conferred upon her by the Hindu Women's Rights of Property Act, 1937 (hereinafter referred to as 'the 1937 Act'), and the Hindu Succession Act. The question was as to what was the quantum of her share in the joint family properties. The Assistant Controller of Estate Duty computed the dutiable estate of the deceased by including one-half of the property owned by the family at the time of her death. This one-half share worked out to Rs. 6,26,012. Against the decision of the Assistant Controller of Estate Duty, the matter was taken in appeal and the Appellate Controller of Estate Duty held that the deceased had become absolute owner of one-half share and that, therefore, the one-half share had passed under section 5 or section 6 of the Estate Duty Act on the death of Vraj Priya. Against the decision of the Appellate Controller of Estate Duty, the accountable person took the matter in appeal to the Tribunal. The Tribunal held that Vraj Priya had one-half share in the joint and undivided Hindu family properties and not either one-third or one-fifth as was contended for on behalf of the accountable person. According to the Tribunal as Madhusudanlalji, father of Ranchhodlalji, had died prior to 1937, Tati, widow of Madhusudanlalji had no right in the property of the joint family except her right of maintenance and residence, in accordance with ordinary Hindu law and, therefore, the Tribunal dismissed the appeal of the accountable person. Thereafter, at the instance of the accountable person, the Tribunal referred the question set out hereinabove to us for our opinion.
3. From the facts that we have set out hereinabove, it is clear that the question that we have to determine is as to what was the share of Vraj Priya in the joint and undivided Hindu family and in order to ascertain her share in the properties of the Hindu undivided family, we have to consider the provisions of the 1937 Act and the Hindu Succession Act, 1956. The 1937 Act provided by section 3 for devolution of petitioner under certain circumstances and so far as is material for the purposes of this judgment, sub-section (2) of section 3 provided :
'When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of her death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.'
Sub-section (3) provided :
'Any interest devolving on the Hindu widow under the provisions of this section shall be the limited interest known as a Hindu women's estate, provided, however, that she shall have the same right of claiming partition as a mala owner.'
4. Under section 14 of the Hindu Succession Act it has been provided -
'Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.'
5. It has been held by the Supreme Court in Kotturuswami v. Veeravva : AIR1959SC577 , that the word 'possessed' is used in section 14 in a broad sense and in its widest connotation and it means 'the state of owning or having in one's hand or power'. It need not be actual physical possession or personal occupation of the property by the female but may be possession in law. It may either be actual or constructive or in any form recognised by law. Hence the right which was conferred on the widow in a Mitakshara Hindu family by section 3 of the 1937 Act became enlarged by the Hindu Succession Act into a full estate and she became the absolute owner of that share in the Hindu undivided family.
6. In Suketu Jayantilal Shah v. controller of Estate Duty  100 ITR 439 , this court has held that under section 3(2) of the 1937 Act, the widow of a member of a Hindu joint family is put in place of her husband and the husband's interest in the joint family property, though indefinite, would vest immediately upon his death in the widow. The widow who acquired the interest of her deceased husband under section 3(2) of the 1937 Act and who was possessed of the said interest on the coming into force of the Hindu Succession Act, 1956, became the absolute owner of that estate by operation of 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 Estate Duty Act. It was further held 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 Estate Duty Act. Thus, it is obvious that on Vraj Priya's death, whatever quantum of her share that might be held by her would pass on her death and would be liable to be included in the estate either under section 5 or under section 6 of the Estate Duty Act.
7. The Supreme Court has in two cases pointed out the method of computing the share of the Hindu widows under the 1937 Act as enlarged by the Hindu Succession Act. In Lakshmi Perumallu v. Krishnavenamma : 1SCR26 , Mudholkar J., delivering the judgment of the Supreme Court, has pointed out that in he opinion of the Supreme Court the correct legal position under the 1937 Act was as follows (page 829) :
'The High Court itself referred to the decision in Parappa v. Nagamma : AIR1954Mad576 which is a decision of the Full Bench constituted for resolving an apparent conflict between the decisions in Chinniah Chettiar v. Sivagami Achi : AIR1945Mad21 , and Subba Naicker v. Nallammal : AIR1950Mad192 . In the opinion of the Full Bench there was really no conflict between the two decision and that the right conferred by the Hindu Women's Rights to Property Act was a new right in modification of the pre-existing one. The Full Bench further held that section 3(2) of the Act does not bring about a severance of interest of the deceased coparcener, that his widow is not raised to the status of a coparcener though the continues to be a member of the joint Hindu family as she was before the Acts that the joint family would continue to exist as before subject only to her statutory rights and that the rights of the other members of the family would be worked out on the basis that the husband died on the date when the widow passed away, the right to survivorship being suspended till then. Further, according to the Full Bench, a widow can under the Act claim a share not only in the property owned and possessed by the family at the time of his death but also in the accretions arising therefrom, irrespective of the character of the accretions. The various decisions to which we have adverted rest on the view that the interest which the law has conferred upon the widow is a new kind of interest though in character it is what is commonly known as the Hindu widow's estate. This interest is in substitution of her right under the pre-existing Hindu law to claim maintenance. The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law become a coparcener she being entitled to claim partition of the joint family property is in the same position in which her deceased husband would have been in the matter of exercise of that right. That is to say, according to those decisions her interest is a fluctuating one and is liable to increase or decrease according as there are deaths in or additions to the members of the family or according as there are accretions to or diminutions of the property..... Undoubtedly she does not become a coparcener, though her interest in the family property is to be the same as that of her deceased husband except that in extent it is to be that the Hindu widow. (Now, of course, it has been enlarged by section 14 of the Hindu Succession Act, 1956)...... When the Act says that she will have the same right as her husband had it clearly means that she would be entitled to be allotted the same share as her husband would have been entitled to had he lived on the date on which she claimed partition.'
8. In Satrughan Isser v. Sabujpari : 1SCR7 , the legal position was again explained. In paragraph 4 Shah J., as he then was, delivering the judgment of the Supreme Court, has observed as follows regarding the 1937 Act :
'The Act seeks to make fundamental changes into the concept of a coparcenary and the rights of members of the family coparcenary property. The Hindu law as laboriously developed by the Anglo-Indian courts in the light of certain basic concepts expounded by the ancient law givers, had acquired a degree of consistency and symmetry. The Act in investing the widow of a member of a coparcenary with the interest which the member had at the time of his death has introduced changes which are alien to the structure of coparcenary. The interest of the widow arises not by inheritance, nor by survivorship, but by statutory substitution.'
Shah J., further pointed out in paragraph 5 :
'A Hindu coparcenary under the Mitakshara school consists of males alone : it includes only those members who acquire by birth or adoption interest in the coparcenary property. The essence of coparcenary is unity of ownership which is vested in the whole body of coparceners. While it remains joint, no individual member can predicate of the undivided property that he has a definite share therein. The interest of each coparcener is fluctuating, capable of being enlarged by deaths, and liable to be diminished by the birth of sons of coparceners : it is only on partition that the coparcener can claim that he has become entitled to a definite share. The two principal incidents of coparcenary property are : that the interest of coparcener devolves by survivorship and not by inheritance : and that the male issue of a coparcener acquires an interest in the coparcenary property by birth, no as representing his father but in his own independent right acquired by birth.'
Then in paragraph 7 Shah J. observed :
'By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener : though invested with the same interest which her husband had in the petitioner she does not acquire the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substituting of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so long as that estate enures. But on the death of coparcener there is no dissolution of the coparcenary so as to carve out a defined interest in favour of the widow in the coparcenary property....... The interest acquired by her under section 3(2) is subject to the restrictions on alienation which are inherent in her estate.'
Finally, it has been observed (col. 2, page 275) :
'The right which the widow may claim is not different from the right which her husband could claim if he had been alive; therefore, the right of the coparceners to take the joint property by survivorship on the death of coparcener does not survive a demand for partition by the widow in the coparcenary.'
9. Thus, in order to ascertain the share of Vraj Priya which was an absolute estate alienable and disposable by virtue of section 14 of the Hindu Succession Act read with section 3(2) of the act of 1937, we have to ask ourselves as to what would have been the share of Vraj Priya in the Hindu undivided family property if a short time before her death, she had asked for partition. She would have the same right as her husband would have been entitled to had he lived on the date when the notional partition would take place for the purpose of ascertaining her share in the property. On that date the members of the Hindu undivided family would be nationally Ranchhodlalji, Vraj Priya herself, Tati, mother-in-law of Vraj Priya, Vrajraiji and Lalan. These would be the different members and the question would be as to what share Ranchhodlalji would have got if he had been alive and if a partition had taken place between the different members of the family on or about August 30, 1962, short time before Vraj Priya's death.
10. The male coparcener would be Ranchhodlalji, Vrajraiji and Lalan. So far as Lalan, the grandson of Ranchhodlalji, is concerned, he would undoubtedly be taking a share in his own right. He would be claiming that share in the same branch as his father, Vrajraiji, and, therefore, the notional partition would be between Ranchhodlalji on the one hand and Vrajraiji on the other. The question is whether Tati, mother of Ranchhodlalji, and Vraj Priya, wife of Ranchhodlalji, would be entitled to any share at the time of this notional partition. If neither of these two females, Tati and Vraj Priya, is entitled to any share, then Ranchhodlalji would be entitled to one-half share and Vrajraiji and Lalan between themselves would be entitled to the other half share.
11. It is obvious that so far as Vraj Priya was concerned, under ordinary Hindu law she would be entitled to a share on partition in lieu of her right to maintenance. It is now clear after the decision of the Supreme Court referred to above, that the right which has been given to a Hindu woman under the 1937 Act is also in lieu of partition. Therefore, if a notional partition takes place shortly before Vraj Priya's death, she could not be allowed a share twice over, namely, once under ordinary Hindu law and again under the 1937 Act. It is, therefore, clear that at the time of this notional partition as short time before Vraj Priya's death, she would not be entitled to any share except that which she gets under the 1937 Act.
12. The question then arises whether Tati, mother of Ranchhodlalji, would be entitled to any share. Regarding the share which is to be allotted to a mother on a partition between her son and grandson the position has been thus stated in Sir Dinshaw Mulla's commentary on Hindu Law, fourteenth edition, at page 405, article 317 :
'(1) A paternal grandmother (father's mother) cannot herself demand a partition, but when a partition takes place between her son's sons, her own sons being dead, she is entitled to a share equal to that of a son's son. She is similarly entitled to a share when a partition takes place between her son and the sons of a deceased son. But when partition takes place between her son and his sons, it has been held by the High Courts of Allahabad and Bombay that she is not so entitled; and by the High Courts of Calcutta and Patna that she is; the last decision proceeds on a text of Vyasa which allows her a share on such a partition.'
13. There are several decisions dealing with the position of the mother when a partition takes place between her son an his sons. The earliest decision in point of time in this connection which is relevant for the purpose is the decision in Sheo Narain v. Janki Prasad, being a decision of the Full Bench of the Allahabad High Court reported in ILR  All 505. It was held by the Full Bench that upon a partition between a father and his sons, the grandmother, that is, the father's mother, does not get a share in the case of a family governed by the Benares school of the Mitakshara law.
14. This decision of the Allahabad High Court was referred to by the Bombay High Court and distinguished by a Division Bench in Vithal Ramkrishna v. Prahlad Ramkrishna : AIR1915Bom85 . Shah J. has pointed out in that case that when a partition takes place between grandsons, the grandmother is entitled to a share in the family estate. For the purpose of arriving at this conclusion, the following text of Vyasa was relied upon, namely :
'The sonless wives of the father are declared equal shares and so are all paternal grandmothers declared equal to the mother.'
15. The main question as has been pointed out in subsequent decisions by the Bombay High Court is the question as to who is to be considered as the father in a case like this. Undoubtedly, following this decision of the Bombay High Court, if a partition is taking place amongst the different grandsons of the lady concerned being the sons of a predeceased son of that lady, then she would be entitled by virtue of this decision in Vithal Ramkrishna v. Prahlad Ramkrishna  17 Bom LR 361 (Bom) to a share at the time of partition amongst the grandsons when the partition takes place by metes and bounds.
16. However, in Jamnabai v. Vasudeo Sagarmal ILR  Bom 417 : AIR 1930 Bom 302, it was held that under the Mitakshara, on partition between a father and his son, the grandmother is not entitled to a share. The emphasis which was laid by Kemp, Acting Chief Justice, was that when a partition takes place between the father and his son, the father's mother is excluded as she is not the sonless wife of his father, that is, of the husband of that widowed mother and the text of Vyasa was distinguished in this manner and so was the decision of the Bombay High Court in Vithal Ramkrishna v. Prahlad Ramkrishna : AIR1915Bom85 . The Full Bench of the Allahabad High Court in Sheo Narain v. Janki Prasad ILR  All 505 was followed in this case.
17. Another Division Bench of the Bombay High Court in Jotiram v. Ramchandra AIR 1941 Bom 382, also took the same view. The Division Bench there held that in order to entitle a grandmother to a share the texts postulate a division between the direct descendant inter se of her deceased husband provided that the dividing parties are not related to one another as father and son. Where the division takes place between the grandson on the one hand and other collaterals, who are not the direct descendants of the deceased grandfather, on the other, the grandmother is not entitled to a share and as such is not a necessary party to the partition suit although it would be desirable to make her a party having regard to her right to maintenance. The earlier decision of the Bombay High Court was referred to in this connection.
18. Thus, it is obvious that if the notional partition was to be contemplated as having taken place a short time before Vraj Priya's death between Ranchhodlalji on the one hand and Vrajraiji and his branch, on the other, then Tati, mother of Ranchhodlalji, who would not, therefore, be a sonless widow as contemplated by Vyasa, would not be entitled to any share and she would be sonless entitled to a right of maintenance without getting a share in the joint family estate. Under these circumstances Ranchhodlalji, in that notional partition, would get one-half share and the other half share would go to the branch of Vrajraiji where Lalan would also have a share in his own right. The result, therefore, is that the share which Ranchhodlalji would have got on such notional partition taking place would be one-half share and neither more nor less, subject of course to the right of maintenance of Tati, the mother of Ranchhodlalji. It is this held share which Ranchhodlalji would have got if a notional partition had taken place if he had been alive an which Vraj Priya would have got if a partition had taken place at the instance of Vraj Priya shortly before Vraj Priya's death and this share passes on Vraj Priya's death. Therefore, it must be held that on the death of Vraj Priya, one-half share in the joint family property passes on the death to her heirs and it is this one-half share which was liable to be included in her estate for the purposes of the estate duty.
19. We find that in paragraph 9 of its order, the Tribunal has made provision for an amount of Rs. 25,000 as a provision for maintenance of Tati and it has been held to be a reasonable provision for her maintenance. In view of this fact it is obvious that the proper principles of law have been followed by the Tribunal in arriving at the share of Vraj Priya and also in seeing to it that Tati who was entitled to a right of maintenance is properly taken care of at the time of computation of the estate of which one-held share is deemed to have passed on the death of Vraj Priya.
20. Under these circumstances it must be held that Vraj Priya, the deceased widow, who was a member of the Hindu undivided family was the absolute owner of one-half of the Hindu undivided family's property and that this one-half share passed on her demise either under section 5 or, in the alternative, under section 6 of the Estate Duty Act. We must, therefore, answer the question referred to us in the affirmative, that is, in favour of the revenue and against the accountable person. The accountable persons will pay costs of this reference to the Controller.
21. Mr. Shah at this stage applies orally under section 65 of the Estate Duty Act for a certificate for leave to appeal to the Supreme Court. As the question involved in this case is a substantial question of law, we grant the certificate and we certify that this is a fit case for appeal to the Supreme Court.