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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR FULL BENCH
G.P. Singh, J.S. Verma, C.P. Sen, JJ.
Controller of Estate Duty
Vs.
Smt. Rani Bahu
Miscellaneous Civil Case No. 35 of 1972
Decided On: 18.08.1981
A wife is entitled to a share when there is a partition between her husband and his sons. But under the strict Hindu law the wife did not get any right of ownership in the joint family property until the property was divided by metes and bounds and a share was allotted to her.
A wife could no doubt sue for reopening a partition if no share was allotted to her in the partition but her right of ownership did not arise till the actual division and allotment of a share to her.
But this strict rule of Hindu law has no application after the enactment of the Hindu Succession Act, 1956. Section 14 (l) of this Act declares that 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. The Explanation to the section defines "property" in very wide language to include both movable and immovable property acquired by a female Hindu by inheritance or devise. or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhans immediately before the commencement of this Act.
The right to share must be taken to accrue to the wife immediately a partition is made although in that partition she is not assigned any share.
This principle also applies when the partition effected is not through the agency of the Court but by act of parties.
(Para 4)
Merely by standing by or by not raising any objection a women does not lose her right to get a share and such a conduct does not amount to acquiescence or relinquishment.
(Para 6)
(2) Estate Duty Act, 1953 - Ss. 39, 7 & 5-wife not allotted a share in partition-her share cannot be included in the estate of the deceased husband though she did not sue for partition-Hindu Succession Act, 1956 - S. 14.
The partition in the instant case was effected by a deed of surrender executed on 11th November 1950. The wife was entitled to If6th share in the joint family property that was divided by the said partition between the deceased and his sons and a grandson of a predeceased son. The surrender deed did not mention her at all and no share was allotted to her. This fact however, did not deprive the wife in getting the right to her share which she could have enforced by instituting a suit for reopening the partition. The right to get 1/6th share in the joint family estate which accrued to her at this stage was property within the meaning of section 14 of the Hindu Succession Act and vested in her absolutely from the date of commencement of the Act. This right to get 1/6th share was in the entire property which after the partition came separately in the hands of the deceased and the three sons and a grandson. The wife did not sue for partition. She lived as a member of the joint Hindu family with her husband, the deceased. She was not a coparcener. The deceased was the sole coparcener in this family but still if' view of the change of law brought about by the Hindu Succession Act she had a right to share 116th in the property, which the deceased obtained in partition. The property that passed on the death of the deceased within the meaning of section 5 of the Estate Duty Act was only his 5/6th share in the estate that he got on partition and which be held at the time of his death, the reason being that l/6th of this estate was held by the deceased's wife, the accountable person. The estate duty could not be charged on the whole of the estate but only on 5/6th which passed on the death of the deceased under section 5. Even applying section 7 and section 39, the same result follows.
(Para 4)
(3) Precedent-legal position admitted or conceded-the view is not binding.
(Para 7)
(4) Estate Duty Act, 1953 - S. 10-amount gifted-possession and enjoyment transferred to the donees and enjoyment and possession of the donor excluded-property does not passed on the death of the donor-section 10 not applicable.
(Para 10)
(5) Practice (Civil)-pleas of acquiescence relinquishment or cesser of right by lapse of limitation-should be taken in the trial Court-cannot be raised in a reference.
(Para 6)
G.P. Singh, C.J.
1. This is a case stated by the Income Tax Appellate Tribunal under Section 64(1) of the E.D. Act, 1953, referring for our answer the following questions of law :
" 1. Whether the Tribunal was justified in accepting that only half the property will be deemed to have passed on the death of Chhotelal?
2. Whether the Tribunal has correctly interpreted Section 39(1) of the E.D. Act and held that on the death of a sole coparcener it must be deemed that there was a partition of a HUF and that the wife was entitled to have a share equal to that of her son ?
3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that Section 10 of the E.D Act is not applicable to the facts of the case and whether it was justified in deleting the amount of Rs 88,000 ? "
2. The reference arises in respect of the principal value of the estate left by one Chhotelal Nanhelal who died on March 2, 1967. The accountable person. Rani Bahu, is the widow of the deceased. The facts relevant to questions Nos. 1 and 2 are that the deceased, his wife. Rani Bahu, and his four sons constituted a joint Hindu family. One of the sons died in 1944 leaving a grandson. The grandson stepped into the shoes of his rather. On November 11, 1950, there was a partition by a surrender deed executed between the deceased and his three sons and the grandson of the pre-deceased son. The surrender deed gave particulars of the property which was allotted to the deceased. Clause (3) of the surrender deed stated that the deceased relinquished all his rights and other claims over the remaining assets of the joint family property. The sons and the grandson likewise declared that they had no claim or share in the property allotted to the deceased. The deceased and his wife continued as members of a joint Hindu family after the partition. The Trubunal held that although the deceased was the sole coparcener in the joint Hindu family consisting of himself and his wife, yet having regard to Section 39(1) of the Act his share in the joint family property would be one-half and only this share passed on his death under Section 7(1) of the Act.
3. A perusal of the surrender deed would go to show that no share whatsoever was allotted to the deceased's wife and she is not mentioned in the deed at all. It is also not her case that, although not separately mentioned her share was included in the deceased's share at the time of partition. She did not sue for reopening the partition during the deceased's lifetime.
4. A wife is entitled to a share when there is a partition between her husband and his sons. But under the strict Hindu law the wife did not get any right of ownership in the joint family property until the property was divided by metes and bounds and a share was allotted to her. Even a declaration of her share in a preliminary decree did not confer on her any right of ownership. A wife could no doubt sue for reopening a partition if no share was allotted to her in the partition but her right of ownership did not arise till the actual division and allotment of a share to her [Pratapmull Agarwalla v. Dharibati Bibi, Radhabai v. Pandharinath AIR 1941 Nag 135]. But this strict rule of Hindu law has no application after the enactment of the Hindu Succession Act, 1956. Section 14(1) of this Act declares that 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. The Explanation to the section defines " property " in very wide language to include both movable and immovable property acquired by a female Hindu by inheritance or devise or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property h
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