The wife of a deceased coparcener is entitled to a share in the joint family property under the Hindu Succession Act, even if she did not claim it during partition. This share does not pass on the death of the husband.

Vijayvargiya, J

1. By this reference under Section 64(1) of the E.D. Act, 1953 (hereinafter referred to as "the Act"), the Income Tax Appellate Tribunal, Indore Bench, Indore, has referred the following questions of law for the opinion of this court:-

"1.Whether, on the facts and circumstances of the case, the Tribunal was in law justified in holding that 1/2 of the property passed on the death of Mohanlal.

2. Whether, on the facts and circumstances of this case, the Tribunal was in law justified to hold that Smt. Kessarbai was entitled to share at the moment of the death of Mohanlal ? "

2. The facts giving rise to this reference as set out in the statement of the case are as follows : The deceased Mohanlal Ladha died on February 19, 1966. The accountable person, Kanhaiyalal, was the son of the deceased. Kanhaiyalal died during the pendency of this reference and the present respondents have been substituted as his legal representatives. The accountable person filed an account of the estate of the deceased disclosing the net principal value of the estate at Rs. 86,980. The deceased, Mohanlal, formed an HUF along with his son, Kanhaiyalal, and his wife, Smt. Kessarbai. The movable property of this HUF was partitioned on October 30, 1951, by entries in the books. On February 13, 1952, partition of the immovable properties was effected by a registered deed. There was a complete partition of all the assets which hitherto belonged to the HUF and the claim of partition filed on behalf of the erstwhile HUF was accepted in the Income Tax assessment by the ITO. In the partition the business carried on by the HUF under the name and style of M/s. Mohanlal Kanhaiyalal was allotted to the deceased, Mohanlal. Mohanlal also received in the partition two houses and shares and other securities including cash worth over Rs. 6,30,000. Kanhaiyalal, the accountable person, as the son of the deceased, received a sum of Rs. 5,50,000 in addition to a house. In the partition nothing was given to Kessarbai, wife of the deceased. Mohanlal thereafter filed the returns under the I.T. Act and also under the W.T. Act in the status as an individual and he was assessed as such up to the year 1964. In the assessment year 1966-67 covering the accounting period 1965, Mohanlal filed his returns claiming the status of an HUF, The Department accepted the change in the status both under the I.T. Act and also under the W.T. Act. The accountable person claimed before the EDO that on the death of Mohanlal only 1/2 share in the property held by the deceased passed and not the entire estate which fell to the share of Mohanlal in the partition between himself and the accountable person because the other half share of the property vested in and belonged to Kessarbai, wife of the deceased, Mohanlal. The Asst. Controller negatived the contention of the accountable person and held that the entire estate passed on the death of Mohanlal. On appeal by the accountable person the Zonal Appellate Controller held that Smt, Kessarbai did not claim her share from her husband in the partition and she waived the right to claim her share, and, therefore, the entire estate held by the deceased, Mohanlal, shall be deemed to have passed on his death. Consequently, the appeal of the accountable person was dismissed. On further appeal by the accountable person, the Tribunal accepted the contention of the accountable person and held that Smt. Kessarbai was entitled to a share equal to that of her son at the time of the death of Mohanlal and in that event only 1/2 share of the property shall be deemed to have passed on the death of Mohanlal. To this extent the Tribunal allowed the appeal of the accountable person. At the instance of the Revenue, the Tribunal has referred the aforesaid questions of law for the opinion of this court.

3. The crucial point involved in the questions referred to us has been concluded by the decision of a Full Bench of this court in CED v. Smt. Rani Bahu [1983]