ORDER
G. Krishnamurthy, Senior Vice President
1. This is an appeal arising out of an estate duty assessment made on the estate of late Shri Jagjit Sahni, who died on 21-11-1980. The accountable person Mrs. Aruna Sahni filed the account of the estate in which she showed that the deceased had one-third share in the HUF property situated at Anand Niketan, New Delhi, the value of which was disclosed at Rs. 2,89,000. Disagreeing with this value as the correct market value, the Assistant Controller estimated its market value at Rs. 3,08,361, which is the first objection raised in this appeal filed before us. As the difference between the value disclosed and the value estimated was very insignificant and since it is not possible to arrive at the precise market value and since in that process some estimate is called for, the methods of valuation being only the aids to come as near as possible to the market value, unless there is very wide variation between the value shown and estimated, it may not be possible for us to interfere with the value taken by the department in every case as if that is not the market value and the value shown by the assessee alone is the market value. Neither any principle of valuation nor any wide variation is involved in this case. We do not, therefore, wish to interfere. This ground is, therefore, rejected.
2. The next ground urged is that in arriving at the estate liable to duty a deduction of Rs. 86,750 claimed as provision for marriage and maintenance expenses of unmarried daughter should have been deducted. This claim was disallowed by the Assistant Controller on the ground that this claim did not fall within either the provisions of Section 33 of the Estate Duty Act, 1953 (‘the Act’) or Articles 304 and 440 of the Mulla’s Hindu Law. This matter when it came for hearing before the Appellate Controller, even he disallowed the claim. It may be useful here to briefly refer to the contentions raised before the Appellate Controller and the reasons given by him for disagreeing with those contentions. The contention raised before him was that it was the property which passes or deemed to pass on the deceased’s death that is to be brought to charge and for this purpose, the value of the cesser of such interest in the joint family property must be arrived at and in arriving at the value of cesser of interest, the Act states that a notional partition immediately before the death should be deemed to have taken place and the value of the share in that deemed partition allotted to the deceased must be taken. In arriving at the value of the property available for partition, all the claims of the members of the joint family must be provided for, namely, for marriage and maintenance expenses. In the case of an unmarried daughter, she has a right to be maintained out of joint family property as well as to be married and since a partition was to be deemed to have taken place before the death, the provision for marriage and maintenance expenses of the daughter must be made and only the balance should be taken to be available for partition. Denial of deduction for this liability would mean denying the right of the unmarried daughter to be maintained out of joint family property which is opposed to the well laid down principles under the Hindu law. Reliance was placed for this view on Articles 304 and 440. Also reference of the Appellate Controller was drawn to the decision of the Supreme Court in the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum [1981] 129 ITR 440 in which the Supreme Court laid down that in the case of notional partition deemed to have taken place under the statute, all the consequences which flow from a real partition have to be logically worked out, which means that the share of each member must be arrived at after making provision for all claims, charges that may lie under the law on the joint family property. Attention of the Appellate Controller was also drawn to various other cases to justify the quantum of the expenses claimed. The Appellate Controller did not agree with this contention. Referring to a decision of the Andhra Pradesh High Court in the case of CED v. Smt. P. Leelavathamma [1978] 112 ITR 739, he held that when the maintenance expenses of a wife of the deceased are not deductible, either during the lifetime of the husband on the ground that it was incchate during the lifetime or after his death because she is entitled to a share, on the same footing the marriage expenses of the daughter also were not a charge on or fastened to any property of the deceased during the lifetime of the deceased. In other words according to the Appellate Controller the position of the wife with regard to maintenance is same as the position of a daughter. He did not see any difference in this position even in the case of a HUF. Thus, he denied the claim of the assessee on the view that since the daughter like the wife is also entitled to a share in the assets of the deceased, the daughter is not further entitled to any maintenance much less for marriage expenses. It is against this decision that the accountable person has come up in appeal before us and reiterated more or less the same contentions. The departmental representative supported the view of the Appellate Controller by laying stress on the fact that the daughter being entitled to a share in the property of the deceased, she is not further entitled to the maintenance allowance nor could she claim any expenditure for her marriage. Therefore, the claim was rightly denied by the authorities below.
3. In our considered opinion the view canvassed for the department is neither justified in law nor can be supported by the decided authorities much less by the Andhra Pradesh High Court decision in Smt. P. Leelavathamma’s case (supra) relied upon by the Appellate Controller. Before we go to decided cases let us first examine the provisions of the Act. In this connection Section 7(1) and Section 39(1) of the Act are relevant. Section 7(1) provided :
Interests ceasing on death-(1) Subject to the provisions of this section, property in which the deceased, or any other person had an interest ceasing on the death of the deceased, shall be deemed to pass on the deceased’s death to the extent to which a benefit accrues or arises by the cesser of such interest, including, in particular, a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara, Marumakkattayam or Aliyasantana law.
Section 39(1) provided the method how the value of interest in coparcenary property ceasing on death is to be arrived at. It says :
Valuation of interest in coparcenary property ceasing on death.-(1) The value of the benefit accruing or arising from the cesser of a coparcenary interest in any joint family property governed by the Mitakshara school of Hindu law which ceases on the death of a member thereof shall be the principal value of the share in the joint family property which would have been allotted to the deceased had there been a partition immediately before his death.
So the mandate of Section 39(1) is the value of the benefit ceasing on the death of a member of a joint family shall be the principal value of the share in the joint family property, which would have been allotted to the deceased had there been a partition immediately before his death. This means that a partition immediately before the death has to be presumed. When the partition is to be presumed all the legal consequences that have a bearing on the partition as well as the rules and principles of partitioning joint family property must be applied all because the principal value of the share in the joint family property has to be ascertained. The principal value of the property can only be ascertained if only all the claims that may possibly have a bearing on the joint family property are fully met. Leaving out any claim by any member of the family would not satisfy the requirements of Section 39(1) because the share to be allotted in the partition of a joint family property would either be more or less if those claims are not provided for. We do not wish to go into the question as to what are the claims that are to be provided for in the case of a partition but for our present purpose, we have to see whether unmarried daughter has got any claim. In this context Sub-section (3) of Section 39 also becomes relevant because that section says that for the purpose of estimating the principal value of the joint family property of a Hindu family governed by the Mitakshara law, in order to arrive at the share which would have been allotted to the deceased had the partition taken place immediately before his death, the provisions of the Act are notionally applied to the whole of the joint family property as if the entire property belonged to the deceased. This Sub-section (3) of Section 39 which places a duty to treat the entire joint family property as belonging to the deceased for the purpose of arriving at his share has implicit in it that all allowances available and all adjustments necessary have to be made. In arriving at the property liable to partition, debts payable out of the joint family property, legal personal debts of the karta and the provision for maintenance of disqualified heirs and female members have to be provided for. The question would then be whether marriage expenses of unmarried daughters is also to be included by taking into account the fiction imposed by Section 39(3). A Hindu joint family or undivided family applies to all schools of Hindu law. A Hindu family can ordinarily consist of all the descendants in the main line from a common ancestor, their wives and unmarried daughters. The fundamental principle of Hindu family is the tie of sapindaship. The normal condition of the family is jointness not only in property but also in food and worship. A joint Hindu family is a broader entity while a Hindu coparcenary is a much narrower body including only those persons, who acquire by birth an interest in the joint or coparcenary property. Now let us see what Article 304 of Hindu Law states. In order to determine what property is available for partition, provision must first be made for joint family debts which are payable out of the joint family property. Then personal debts of the father are not tainted with immorality. Then maintenance of dependent female members and of disqualified heirs and lastly comes the marriage expenditure of unmarried daughters. It is for this reason we have mentioned in the earlier portion of our order that in arriving at the value of cesser of interest applying the fiction provided for in Section 39(3) provision for the above have to be made. At that time we have not mentioned about the marriage expenditure of unmarried daughters because that was the question in issue. Article 304 is specific that property available for partition can be arrived at only after provision is made for the joint family debts, legal personal debts of the father, maintenance and marriage expenses of dependent female members, disqualified heirs and unmarried daughters. Article 304 further laid down that where a partition takes place between the sons, a provision must be made for the funeral expenses of the widow and the major of the last male holder. It is only after these provisions are made, an account must be taken of the joint family property in the hands of the manager and other members of the family. Article 304(2) provided for a situation of allowing or not of marriage expenses of the male members of the family. It provided that a male member of the family, who is not married at the time of partition is not entitled to have a provision made on partition for his marriage expenses. But that section clearly provided that the case of unmarried daughter was different and it stands on a different footing. That article provided that her right to maintenance and marriage expenses out of the joint family property is in lieu of a share on partition. Provision should, therefore, be made for her marriage expenses. In this context the judgment of the Privy Council in the case of Rajgopala v. Venkataraman 51 CWN 829 may be seen. Article 440 lays down in the case of joint family governed by the Mitakshara law, the joint family property is liable while the family is still joint for the legitimate marriage expenses of male members of the family and of the daughters of male members of the family. The Hindu law texts enjoin the payment of expenses on Sanskaras or sacraments out of the joint family property. Marriage is a Sanskara. Article 437 of the Hindu Law provided that two ceremonies are essential to the validity of a marriage, one is invocation before the sacred fire and Saptapathy before the sacred fire by the bridegroom and the bride jointly. As marriage is, thus, a Sanskara, its expenses are to be borne out of the joint family property. It is also laid down by the judicial authorities that a debt contracted for the marriage of a coparcener or a daughter of a coparcener in a joint Hindu family is a debt contracted for the family purpose and, therefore, for the benefit of the family and that is to be taken into account in arriving at the property, available for partition. Thus, the Hindu law texts have laid down in unequivocal terms that the marriage expenses of unmarried daughter is a liability of the joint family and provision must be made for those expenses at the time of partition. That claim is now denied in this case by the department on the sole ground that the daughter like wife is entitled to a share on partition and, therefore, the claim for deduction of marriage expenses is not allowable. This view does not seem to be correct because the case relied upon for this purpose, namely, the decision of the Andhra Predesh High Court in Smt. P. Leelavathamma’s case (supra) did not lay down this rule. There the deceased, a sole surviving coparcener of a HUF, died intestate leaving behind him his mother, widow and a minor, unmarried daughter. The accountable person for the purpose of estate duty claimed deduction of certain sum towards the maintenance and marriage expenses of the daughter and another sum towards the maintenance expenses of the widow. The claim was based on the plea that during the lifetime of the deceased, he was under an obligation to maintain the daughter as well as to perform her marriage. The Assistant Controller rejected the claim in respect of the maintenance expenses of the widow and allowed only Rs. 20,000 towards the marriage expenses of the daughter. The appeal to the Appellate Controller failed but on a further appeal to the Tribunal, the Tribunal upheld the contention of the accountable person and allowed maintenance expenses of the wife and enhanced the claim for the maintenance and marriage expenses of the daughter. On a reference to the High Court at the instance of the revenue, the Andhra Pradesh High Court pointed out that the wife is not entitled to separate maintenance after the death of the deceased under Section 22(2) of the Hindu Adoptions and Maintenance Act, 1956. She had no choate or clear right against any specific property of the deceased when he was alive in respect of her claim for maintenance and her right is only personal in nature. It is only after she files a suit and obtains a decree with a charge for her maintenance on a particular portion of the property, that the portion of the property thus charged can be said to be a charge on the estate. The Andhra Pradesh High Court therefore, held that the Tribunal was not right in allowing deduction towards maintenance expenses of the wife. The department later required the Tribunal to state four questions to the High Court for its opinion out of which the first question was whether on the facts and in the circumstances of the case the Tribunal is correct in law in allowing deduction towards marriage and maintenance expenses of the unmarried daughter of the deceased from the estate passing on his death and whether there is any material to fix a higher amount than allowed by the Assistant Controller. When these questions were rejected by the Tribunal the department filed a reference to the High Court and the High Court also observed that these are questions of fact and not questions of law. In coming to this conclusion the High Court pointed out that the Assistant Controller when he allowed certain amount towards the marriage expenses of the unmarried daughter and when the Tribunal enhanced the allowance to a larger amount, the Tribunal was only interfering with the factual conclusions of the Assistant Controller and did not go into the legal principle although the Tribunal made incidental references to the claim made on behalf of the daughter while discussing the claim made on behalf of the wife and those incidental references did not give rise to a question of law. This decision cannot, therefore, be an authority for the proposition as was supposed by the Appellate Controller that the High Court pronounced on the allowance of the marriage expenses of the unmarried daughter in arriving at the property available for partition. The conclusion of the Appellate Controller that the daughter stands on the same footing as wife is patently incorrect. It is no doubt true that under Section 6 of the Hindu Succession Act, 1956, if a male Hindu dies having at the time of his death an interest in the Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary and the daughter of the deceased will also get a share as a class I heir. This is more clearly amplified in Section 8 of the Hindu Succession Act, which provided the general rule of succession in the case of males is that the properly of a male Hindu dying intestate devolve firstly on the heirs specified in class I of the Schedule to the Hindu Succession Act. The Schedule provides for daughter in the same capacity as son. In that way the daughter is also classified as a class I heir of the Schedule who will take a share in the property of a male Hindu dying intestate. This section comes into operation only when the succession opens, i.e., when the male Hindu dies. We are not in this case concerned with, who will be entitled to share in the property left by the deceased by applying the rules of succession laid down in the Hindu Succession Act. Merely because on the operation of the Hindu Succession Act a daughter gets a share docs not mean that in the notional partition of the joint family property contemplated in Section 39(3), which is to take place before the death, the daughter would be denied the right to maintenance or marriage expenses. There is thus, to our mind, a confusion in the thinking process of the Appellate Controller. The daughter is no doubt entitled to a share out of the deceased’s share but what we have got to see is what is the property available for partition on the deemed partition contemplated under Section 39(1). At that stage the question of daughter getting a share will not arise. Therefore, that reason is inapplicable. Similarly the Hindu Adoptions and Maintenance Act makes it an obligation on the part of a Hindu to maintain his daughter as a dependent. This is clear from Sub-section (3) of Section 20 of the Hindu Adoptions and Maintenance Act, under which an obligation of a person to maintain his unmarried daughter is made specific, the only exception being a case where the unmarried daughter has got her own earnings or property. Thus, the provisions of the Hindu Adoptions and Maintenance Act far from supporting the revenue’s case supports the assessee’s plea. Thus, the argument of the Appellate Controller that the wife and the daughter are on the same footing is not correct either factually or in law. Now a somewhat similar question came up for consideration before the Calcutta High Court in the case of CGT v. Basant Kumar Aditya Vikram Birla [1982] 137 ITR 72. That was a case arising under the Gift-tax Act, 1958. But the principle laid down by the Calcutta High Court and the nature of the marriage expenses of unmarried daughter vis-a-vis joint family property was of relevance to us. The assessee there is a HUF. The HUF made gifts to daughter at the time of her marriage. The assessee claimed exemption from the levy of gift-tax on these gifts on the ground that these gifts should be regarded as marriage expenses. When the claim was disallowed, an appeal was filed before the AAC contending that an unmarried daughter was entitled to have her marriage expenses met by the HUF and when a gift was made in discharge of that obligation, there was no gift at all. The AAC decided the matter against the assessee. In further appeal before the Tribunal, the Tribunal took the view that the assessee was under a legal obligation to bear the marriage expenses and, therefore, those gifts did not amount to gifts without consideration.
Then the question came before the Calcutta High Court in the following form :
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that jewellery, cash and fridge of the value of Rs. 67,744 given by the assessee to Smt. Jayasree Mehta, at the time of her marriage, did not fall within the ambit of the term ‘gift’ as defined in Section 2(xii) of the Gift-tax Act, 1958 ? (p. 73)
By referring to Article 304(2), which dealt with the property available for partition, which we referred to earlier, the High Court agreed with the conclusion of the Tribunal and held in favour of the assessee. The Calcutta High Court also referred to the provisions made in the Hindu Adoptions and Maintenance Act and pointed out that the traditional concept of Hindu law of obligating the joint family to meet the marriage expenses of unmarried daughter was not only altered by this Act but was recognised. The expression ‘maintenance’ used in that Act was defined to include in the case of unmarried daughter reasonable expenses of and incidental to her marriage. Elucidating this position further the Calcutta High Court pointed out that the satutory law imposed upon the karta or the father, as the case may be, the obligation of maintaining the daughter along with the obligation to incur expenses on the occasion of the marriage. They also made a reference to a decision of the Supreme Court in the case of Venkatesh Dhonddev Deshpande v. Sou, Kusum Dattatraya Kulkarni AIR 1978 SC 1791 to fortify their conclusion. After referring to the entire case law on the subject including the Hindu Adoptions and Maintenance Act, the Calcutta High Court pointed out that the legal as well as moral obligation under the Hindu law of a HUF to incur expenses on the occasion of the marriage of an unmarried daughter is recognised by the Courts. A daughter has a right as long as the family remained joint and had properties to have her marriage expenses met out of the joint family fund. The legitimate marriage expenses of the daughter will have to be met out of the funds of the joint family. This judgment of the Calcutta High Court is a direct decision on the question that arose before us and this decision is in no way contrary to the decision of the Andhra Pradesh High Court in the case of Smt. P. Leelavathamma (supra). In view of this decision and the textual injunctions based upon the judicial pronouncement and Sastriac law, we are of the view that the assessee is entitled to the claim that it made and its rejection is opposed to law. The property available for partition though it is deemed to be notional under Section 39(1), cannot be arrived at without providing for the maintenance and marriage expenses of the unmarried daughter, which is a legitimate charge on the family property. This also takes into account the legal fiction created by Section 39(3). There is no dispute about the quantum of expenditure claimed. We, therefore, hold that the claim of the assessee should be accepted and we direct the Assistant Controller to deduct that amount and modify the assessment accordingly.
4. In the result, the appeal is allowed in part.