R. S. PATHAK, J. :- This is a reference made by the Appellate Tribunal under Section 64(1) of the Estate Duty Act, 1953. The question referred is:-

"Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the deceased had no interest in the 2/3rd of the Hindu undivided family properties? If not, whether her interest was 1/6th of the total Hindu undivided family assets?"

2. There was a Hindu undivided family consisting of D.P. Halwasiya, his two wives Tribeni Devi and Anari Devi, a son and three daughters. D.P. Halwasiya died on December 22, 1957. Thereafter, Tribeni Devi died on December 5, 1958. This reference is concerned with the estate duly payable on the death of Tribeni Devi.

3. The Assistant Controller of Estate Duty determined the extent of the interest held by Tribeni Devi in the Hindu undivided family property. He observed that on the death of her husband she was entitled to a one-sixth share had there been a partition, and that she was also entitled under Section 6 of the Hindu Succession Act, 1956 to share equally with the other members in her husband's interest in the Hindu undivided family property assuming a notional partition. On that basis, he included a 1/6th share and a 1/18th share of the family property as the interest passing on her death for the purposes of estate duty.

4. On appeal by the accountable person, the Zonal Appellate Controller expressed the view that the deceased did not have any share in the Hindu undivided family property under the Hindu Women's Rights to Property Act, 1937 and, therefore, on that account the Assistant Controller was wrong in holding her entitled to a 1/6th share. But applying Section 6 of the Hindu Succession Act, he held that as the husband upon partition before his death would have been entitled to a 1/3rd share in the family property, a 1/6th share in this interest devolved on Tribeni Devi, and therefore, she would have been entitled to a 1/18th share in the family property. Two appeals were filed before the Appellate Tribunal, one by the accountable person and the other by the Assistant Controller. During the hearing of the appeals, the Departmental Representative conceded that on the basis of the interest devolving on Tribeni Devi upon her husband's death she was entitled to a 1/30th share of the Hindu undivided family property. The Appellate Tribunal found accordingly. The Appellate Tribunal also held that she did not have any interest in the balance of the family property left after carving out the husband's share. The appeals were disposed of accordingly.

5. It was contended before us on behalf of the Controller of Estate Duty that during the life time of her husband Tribeni Devi enjoyed a share in the property by virtue of the Hindu Women's Rights to Property Act, 1937, that this interest although originally a limited interest known as a Hindu Woman's estate became an absolute estate under Section 14 of the Hindu Succession Act. In addition, it is contended, she became entitled to a share in the interest of the husband in the Hindu undivided family property by virtue of Section 6 of the Hindu Succession Act.

6. We have carefully considered the matter, and it seems to us that the position in law is as follows:-

Under the Hindu Women's Rights to Property Act, 1937 no interest could be said to devolve on Tribeni Devi. Section 3(2) of that Act confers an interest on a female in Hindu undivided family property governed by the Mitakshara law only upon the death of her husband. Upon his death, as his widow she is entitled to the same interest in the property as he himself had, it being a limited interest known as a Hindu Woman's estate superadded to it is the same right of claiming partition as a male owner. Section 3(2) does not come into play while the husband is alive. Therefore, while the husband is alive a Hindu woman under the Mitakshara law cannot be said to enjoy any interest in the Hindu undivided family property. Trib