{"id":4389,"date":"1977-05-03T00:00:00","date_gmt":"1977-05-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/controller-of-estate-duty-madras-vs-alladi-kuppuswamy-on-3-may-1977"},"modified":"2016-12-03T07:28:41","modified_gmt":"2016-12-03T01:58:41","slug":"controller-of-estate-duty-madras-vs-alladi-kuppuswamy-on-3-may-1977","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/controller-of-estate-duty-madras-vs-alladi-kuppuswamy-on-3-may-1977","title":{"rendered":"Controller Of Estate Duty Madras vs Alladi Kuppuswamy on 3 May, 1977"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Controller Of Estate Duty Madras vs Alladi Kuppuswamy on 3 May, 1977<\/div>\n
Equivalent citations: 1977 AIR 2069, \t\t 1977 SCR (3) 721<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nCONTROLLER OF ESTATE DUTY MADRAS\n\n\tVs.\n\nRESPONDENT:\nALLADI KUPPUSWAMY\n\nDATE OF JUDGMENT03\/05\/1977\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nBHAGWATI, P.N.\nUNTWALIA, N.L.\n\nCITATION:\n 1977 AIR 2069\t\t  1977 SCR  (3) 721\n 1977 SCC  (3) 385\n\n\nACT:\n\tEstate\tDuty Act, 1953--Sections 7(1) and (2) and  39--Scope\n\tof.\n\t    Hindu  Joint   Family--Death  of  coparcener--Nature  of\n\tinterest  of widow--Widow not claiming partition during\t the\n\tlife time--Death of widow--Whether interest in Joint  family\n\tproperty   passes--Liability  to estate\t  duty--Estate\tDuty\n\tAct, 1953, Ss. 5, 6, 7(1), 39, 40(a) and (b)---Hindu Women's\n\tRights to property Act, 1937, Section 3(2).\n\tConstruction\tof    fiscal\tstatutes--Duty\t  of\t the\n\tcourt--Legislative   intent  reflected in the Acts  must  be\n\tgiven full effect to.\n\n\n\nHEADNOTE:\n\t    Shri  Alladi was a member of the Hindu coparcenary\tcon-\n\tsisting\t of himself his wife (Smt. Alladi) and\tthree  sons.\n\tShri  Alladi who died before the Estate Duty Act  1953\tcame\n\tinto force, during his life time had settled certain proper-\n\tties  absolutely on his wife and had also  declared  certain\n\tother  properties to form part of the joint  family  proper-\n\tties.\tSmt.  Alladi died on January 5, 1956, a\t few  months\n\tbefore\tthe passing of the Hindu Succession Act,  1956.\t The\n\tAssistant  Controller of Estate Duty valued her estate at  a\n\ttotal  amount  of  Rs. 7,25,527\/- including  a\tsum  of\t Rs.\n\t2,02,271\/-  being the value of her 1\/4th share in the  joint\n\tfamily\tproperties, on the footing that as Smt.\t Alladi\t was\n\ta member of the Hindu coparcenary, her interest in the joint\n\tfamily\tproperties. passed on her death to the\tother  three\n\tsons  and the value Of this interest being 1\/4th, the  heirs\n\twould  be  liable  to pay estate duty on the  value  of\t the\n\t1\/4th,\tshare.\t The respondent filed an appeal\t before\t the\n\tCentral\t Board of Revenue and contended that as Smt.  Alladi\n\tdied as a Hindu widow she possessed no coparcenary  interest\n\twhich  could pass on her death; her interest merged  without\n\tany benefit accruing or arising to the coparceners and hence\n\tsection 7 subsection (1) had no application.  This plea\t did\n\tnot  find favour with the Board. which upheld the  order  of\n\tthe  Assistant\tController of Estate Duty  as  correct.\t The\n\tBoard further held that the Hindu widow's. estate created by\n\ts.  3(2) of the Hindu Widows Rights to Property\t Act,  1937,\n\twas an interest in property which ceased on the death of the\n\twidow  attracting  estate duty.\t Thereupon,  the  respondent\n\tmoved  the  Board  to make reference to the  High  Court  of\n\tMadras for decision of the questions of law involved in\t the\n\tcase.  The Board referred three questions to the High  Court\n\tunder  section\t64(1)  of the Act, but at the  time  of\t the\n\thearing\t of  the  reference,  the  respondent  confined\t his\n\targuments  only to the following issue, namely\t\"Whether  on\n\tthe  facts and in the circumstances of the case 1\/4th  share\n\tof the deceased in the joint family properties to which\t she\n\twas  entitled  under  s. 3 of the  Hindu  Womens  Rights  to\n\tProperty Act, 1937, was correctly included in her estate  as\n\tproperty  deemed  to  pass on her death under s.  7  of\t the\n\tEstate\tDuty  Act,  1953.\"  The High Court  relying  on\t the\n\tdecisions of the Privy Council in Attorney General of Ceylon\n\tv. Arunachalam Chettiar (1957) AC 513 and Gartside v. Inland\n\tRevenue Commissioners 1968 AC 553 held that the interest  of\n\tSmt. Alladi was not a coparcenary interest which could\thave\n\tpassed under s. 7(1) of the Act and as the said interest was\n\tincapable  of valuation, it was not exigible to estate\tduty\n\tand  thus   held against the  Revenue and in favour  of\t the\n\taccountable person.\n\tAllowing the appeal by certificate, the Court,\n\t    HELD: (1) By virtue of the provisions of the Act of 1937\n\ta  Hindu widow undoubtedly possess a  coparcenary   interest\n\tas   contemplated  by  s. 7(1) of the Act and she is also  a\n\tmember\tof the Hindu coparcenary as envisaged by s. 7(2)  of\n\tthe Act. [734 B]\n\t722\n\t(2)  Prior to the passing of the Act of 1937 a\tHindu  Woman\n\thad  no right interest at all in a Hindu  coparcenary.\t The\n\tAct of 1937 bettered the rights a Hindu widow and  conferred\n\ton  her by s. 3 the same interest as possessed her  husband.\n\t[727 A]\n\t    (3)\t The words \"the same interest as he himself had\"  in\n\tsub-section (2) of s. 3 of the Act of 1937 clearly  indicate\n\tthat the statute gave effect to the well-settled doctrine of\n\tHindu shastric law that the persons of the husband after his\n\tdeath continues through his wife who is a surviving half and\n\tthe  husband continues to live through the widow so long  as\n\tthe  widow is alive. When the Legislature used\tthe  expres-\n\tsion'  \"the same interest as he himself had\", it  would\t in-\n\tclude  all the rights possessed by the husband\twhich  could\n\tdevolve\t  on the wife.\tThus, a Hindu widow  was  introduced\n\tfor  the  first time into the Hindu coparcenary\t having\t the\n\tsame rights as her husband and became as it were a member of\n\tthe  Hindu coparcenary with two qualifications, namely,\t (i)\n\tshe had only a limited interest and (ii) that she could\t not\n\tbe  a coparcener because having regard to the nature of\t her\n\tentry into the family after marriage with her husband, there\n\twas no question of her getting interest in the\tHindu copar-\n\tcenary by birth which is one of the most important incidents\n\tof a Hindu coparcenary. [727 D-E]\n\t    (4) The essence of coparcenary property is the unity  of\n\townership  which is vested in the whole body of\t coparceners\n\tand the two principal incidents of coparcenary are that\t the\n\tinterest  of coparceners devolve by survivorship and not  by\n\tinheritance  and  that the male issue of a  coparcenary\t ac-\n\tquires\t an  interest in the coparcenary property  by  birth\n\tand not as representing his father.\n\t\t\t\t\t\t       [729 D-E]\n\t    (5)\t A Hindu coparcenary has six essential\tcharacteris-\n\ttics, namely, (i) that the lineal male descendants upto\t the\n\tthird  generation acquire an independent right of  ownership\n\tby birth and not as representing their ancestors; (ii)\tthat\n\tthe  members of the coparcenary have the right to  work\t out\n\ttheir rights by demanding partition; (iii) that until parti-\n\ttion,  each  member  has got ownership\textending  over\t the\n\tentire\tproperty  jointly with the rest and so\tlong  as  no\n\tpartition takes place it is difficult for any coparcener  to\n\tpredicate  the share which he might receive; (iv) that as  a\n\tresult of such co-ownership the possession and enjoyment  of\n\tthe property is common; (v) that there can be no  alienation\n\tof the property without the concurrence of the other  copar-\n\tceners\tunless it be for legal necessity and (vi)  that\t the\n\tinterest of a deceased member lapses on his death and merges\n\tin  the coparcenary property.  Applying these tests  to\t the\n\tinterest  of a Hindu widow who has been\t introduced  into  a\n\tcoparcenary  by virtue of the Act of 1937, it will be  seen,\n\tthat  short  of the first condition she\t possesses  all\t the\n\tnecessary indicia of a coparcenary interest.  The fact\tthat\n\tbefore the Act of 1956 she had the characteristic of a widow\n\testate in her interest in the property does not detract\t any\n\tthe  less  from this position.\tTherefore,  though  a  Hindu\n\twidow  cannot be a  coparcener she has\tconarcenary interest\n\tand  is\t also a member of the coparcenary by virtue  of\t the\n\trights\tconferred on her under the Act of 1937.\t  [731\tF-H,\n\t732 A-B-D]\n\t  State\t Bank of India v. Ghamandi Ram<\/a> (dead)  through\tShri\n\tGurbax Rai [1969] 3 SCR 681. 686 applied.\n\t    (6) If the widow has not chosen to exercise her right of\n\tpartition,  there no severenee of the Hindu coparcenary\t and\n\ton her death the interest of the widow merges in the  copar-\n\tcenary property or lapses to the other coparceners.\n\t    Parappagari\t Parappa  alias Harmmanthappa  and  Anr.  v.\n\tParappagari  Nagaman  and  Ors. ILR 1954  Madras  183;\tS.T.\n\tSabujpari  and\tAnr. v. Satrughan Isser and  Ors.  AIR\t1958\n\tPatna  405,  410 and Mst. Khatrant Kuer v.  Smt.  Tapeskwari\n\tKuer AIR 1964 Pat 261, approved.\n\t    (7)\t It was not the intent of the legislature which\t was\n\tfolly  aware of the statutory interest conferred on a  Hindu\n\twidow by virtue of the Act of 1937 and the incidents thereof\n\tthat  though a Hindu widow has got the same interest as\t her\n\thusband\t in the Hindu coparcenary and has also the right  to\n\tdemand\n\t723\n\tpartition and her interest is a fluctuating one would  lapse\n\tto the other coparceners in case of her death without  seek-\n\ting partition in the same manner as that of other  coparcen-\n\ters,  yet  it  should be exempt from estate  duty.   In\t the\n\tinstant case, Smt. Alladi was a member of the Hindu coparce-\n\tnary,  her interest was undoubtedly a  coparcenary  interest\n\twhich  lapsed on her death and merged into the\tcoparcenary.\n\tIt was clearly capable of valuation, it being covered by  s.\n\t39  of the Act.\t The High Court was in error in\t basing\t its\n\tdecision  on  the Arunachalam Chettiar's case  and  also  in\n\tGartside's  case  ignoring the decisions of this  Court\t and\n\talso the peculiar and special provisions of the Act. [732 F,\n\t733 A-C]\n\t    Attorney-General  of  Ceylon  v.  Arunchalam    Chettiar\n\t(1957)\t AC  513  34 ITR (E.D.) 20 and\tGattside  v.  Inland\n\tRevenue\t Commissioners (1968) AC 553=70 ITR 663 (H.L.)\theld\n\tinapplicable.\n\t    (8)\t It is wrong to contend that the widow could not  be\n\ttreated\t either as a member of the Hindu coparcenary  or  as\n\thaving been conferred coparcenary  interest in the property.\n\tEven  though the widow is not a coparcener in  the  strictly\n\tlegal  sense of the term, the interest which she has is\t the\n\tsame  interest\tas her husband and that is  the\t coparcenary\n\tinterest  with the only limitation placed on her by s.\t3(3)\n\tof  the\t Act  of 1937, namely, that her\t interest  would  be\n\tlimited\t interest, of a Hindu widow.  In the  instant  case,\n\tSmt.  Alladi possessed a coparcenary interest  which  lapsed\n\ton her death and merged into the coparcenary and was clearly\n\tcovered\t by  the inclusive part of sub-s. (1) of  s.  7\t and\n\tunder  s. 39, the value of the benefit accruing\t or  arising\n\tfrom the cesser of the coparcenary interest was to be deter-\n\tmined  by  taking the principal value of the share  and\t the\n\tjoint family property which would have been allotted to\t her\n\thad there been partition immediately before her death.\t The\n\tpresent\t case  squarely falls within the ambit\tof  s.\t7(1)\n\tlatter\tpart  and sub-s. (2) of s. 7 of the Act\t which\t at-\n\ttracts s. 39.  By  reason of the  inclusive part  of  sub-a.\n\t(1) of s. 7 it must be taken to have passed on her death and\n\twas hence exigible to estate duty. [733 D-G]\n\t    (9) When the phraseology of a particular section of\t the\n\tstatute\t takes\twithin its sweep the  transaction  which  is\n\ttaxable,  it is not for the court to strain and\t stress\t the\n\tlanguage  of  the section so as to enable the  tax-payer  to\n\tescape the tax. The legislative intent reflected in the\t Act\n\tof 1937 and Estate Duty Act, 1953, must be given full effect\n\tto. [733 H, 734 A]\n\n\n\nJUDGMENT:\n<\/pre>\n
\tCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2003\/71
\n\t    (From  the\tJudgment and Order dated  5-12-1969  of\t the
\n\tMadras High Court in Tax-Case No. 40 of 1965)
\n\t    S.T.  Desai,  P.L.\tJuneja and R.N.\t Sachthey,  for\t the
\n\tappellant.\n<\/p>\n
\t      G. Venkatarama Sastry, K.R. Ramamani and J. Ramamurthi
\n\tfor the respondent.\n<\/p>\n
\tThe Judgment of the Court was delivered by
\n\t    FAZAL  ALI, J.–This appeal by certificate\tis  directed
\n\tagainst a Full Bench judgment of the Madras High Court dated
\n\tDecember  5, 1969-Alladi Kuppuswami v. Controller of  Estate
\n\tDuty,  Madras(1)–by  which the reference made to  the\tHigh
\n\tCourt by the Central Board of Revenue was answered in favour
\n\tof the accountable person and against the Revenue.  The case
\n\tinvolves  an  interesting and important question of  law  in
\n\trespect\t of ambit and scope of ss. 7(1) & (2) as also 39  of
\n\tthe
\n\t(1) 76 I.T.R. 500
\n\t7–707SCI\/77
\n\t 724<\/span>
\n\tEstate Duty Act, 1953–hereinafter referred to as ‘the Act’.
\n\tIn  order to decide the question of law arising in  the\t ap-
\n\tpeal,  it may be necessary to set out briefly the  facts  of
\n\tthe   case.    Sri  Alladi  Krishnaswami  Iyer\t died\tsome
\n\ttime.before  the passing of the Estate Duty Act,  1953,\t but
\n\tduring\this  life  time he had\tsettled\t certain  properties
\n\tabsolutely  on his wife Smt. Alladi  Venkatakshmamma–to  be
\n\treferred in short as ‘Smt. Alladi’–and he had also declared
\n\tcertain\t other properties to from part of the  joint  family
\n\tproperties.   Sri Alladi Krishnaswami Iyer hereafter  to  be
\n\treferred  to  as  “Shri Alladi” was a member  of  the  Hindu
\n\tcoparcenary consisting of himself, his wife and three  sons.
\n\tIn  the\t instant case we are only concerned with  the  joint
\n\tfamily properties left by Shri Alladi.\tSmt. Alladi died  on
\n\tJanuary 5, 1956 a few months before the passing of the Hindu
\n\tSuccession Act, 1956 and the Assistant Controller of  Estate
\n\tDuty  valued  her estate at a total amount ot  Rs.  7,25,527
\n\tincluding  a sum of Rs. 2,02,271 being the value of her\t the
\n\tshare  in the joint family properties.\tThe dispute  in\t the
\n\tpresent\t case centres round the inclusion of  the  aforesaid
\n\tsum of Rs- 2,02,271\/-. The Revenue assessed the estate\tduty
\n\ton  the footing\t that  as  Smt. Alladi was a member  of\t the
\n\tHindu  coparcenary her interest in the joint family  proper-
\n\tties  passed  on her death to the other three sons  and\t the
\n\tvalue of this interest being 1\/4th the heirs would be liable
\n\tto pay estate duty on the value of the 1\/4th share  assessed
\n\tat  Rs. 2,02,271\/-.  The accountable persons raised  several
\n\tcontentions before the Revenue including the question as  to
\n\twhether or not the Act would apply to agricultural lands  as
\n\talso  whether interest on certain fixed deposits in  Govern-
\n\tment  securities  would\t be assessable under  the  Act.\t  It
\n\tappears, however, that before the High Court the  respondent
\n\tpressed\t only the question relating to the inclusion of\t the
\n\tvalue\tof  1\/4th  share  of  Smt.  Alladi  valued  at\t Rs.
\n\t2,02,271\/-. The respondent filed an appeal before the  Board
\n\tand contended that as Smt. Alladi died as a Hindu widow\t she
\n\tpossessed  no coparcenary interest which could pass  on\t her
\n\tdeath:\ther interest merged without any benefit accruing  or
\n\tarising\t  to  the coparceners and hence s. 7 sub-s. (1)\t had
\n\tno  application.  The plea taken by the respondent  did\t not
\n\tfind  favour with the Central Board of Revenue which  upheld
\n\tthe order of the Assistant Controller  of Estate Duty.
\n\t    Thereupon  the respondent moved the Board of Revenue  to
\n\tmake a reference to the High Court of Madras for decision of
\n\tthe  questions of law involved in the case.  The  Board\t ac-
\n\tcordingly  referred  the  following questions  to  the\tHigh
\n\tCourt:\n<\/p>\n
\t\t\t    “1.\t Whether,  on the facts and  in\t the
\n\t\t      circumstances of the case, one-fourth share of
\n\t\t      the  deceased in the joint family\t properties,
\n\t\t      to  which she was entitled under section 3  of
\n\t\t      the  Hindu  Women’s Rights  to  Property\tAct,
\n\t\t      1937, was correctly included in her estate  as
\n\t\t      property\tdeemed\tto pass on her\tdeath  under
\n\t\t      section 7 of the Estate Duty Act, 1953 ?<\/p>\n
\t\t\t    2. Whether the Estate Duty Act. 1953, in
\n\t\t      so far as it seeks to levy duty on agricultur-
\n\t\t      al  lands, is ultra vires of  the\t legislative
\n\t\t      powers of the Union Legislature ?\n<\/p><\/blockquote>\n
\t\t      725<\/span><\/p>\n
\t\t\t    3.\tWhether,  on the facts\tand  in\t the
\n\t\t      circumstances of the case, the accrued  inter-
\n\t\t      est  on fixed deposits and Government  securi-
\n\t\t      ties  up to the date of death of the  deceased
\n\t\t      was  correctly  included in her  estate  under
\n\t\t      section 34(2) of the Estate Duty Act, 1953 ?\n<\/p><\/blockquote>\n
\tAlthough three questions had been referred to the High Court
\n\tby  the\t Board at the hearing of the appeal  the  respondent
\n\tgave  up questions Nos. 2 and 3 and confined  his  arguments
\n\tonly to question No. 1 which falls for determination in this
\n\tcase.\tThe High Court, relying mainly on the  decisions  of
\n\tthe Privy Council in Attorney-General of Ceylon v. Arunacha-
\n\tlam Chettiar;(1) and Gartside v. Inland Revenue’ Commission-
\n\ters(2)\tcame  to the conclusion that the  interest  of\tSmt.
\n\tAlladi\twas  not  a coparcenary interest  which\t could\thave
\n\tpassed\tunder s. 7 (1) of the Act and as the  said  interest
\n\twas incapable of valuation was not exigible to estate  duty.
\n\tThereafter  the\t appellant  applied to the  High  Court\t for
\n\tgranting  a certificate of fitness for leave. to  appeal  to
\n\tthis  Court and the same having been granted the appeal\t has
\n\tnow been placed before us for hearing.\n<\/p>\n
\t    The respondent reiterated his contentions before us\t and
\n\tsubmitted that s. 7(1) of the Act had no application to\t the
\n\tfacts of the present case, and therefore, the share of\tSmt.
\n\tAlladi\twas  not exigible to estate  duty.   The  appellant,
\n\thowever,  submitted  that a Hindu widow\t had  a\t coparcenary
\n\tinterest  in  the  joint family properties  which  could  be
\n\tvalued\ton the basis of the factors enumerated in s.  39  of
\n\tthe  Act,  the High Court was in error in holding  that\t the
\n\tinterest  of Smt. Alladi was not capable of  any  valuation.
\n\tThe appellant, therefore, submitted that the High Court\t had
\n\tnot correctly appreciated the legal nature and character  of
\n\tthe  interest of the Hindu widow conferred on her by  virtue
\n\tof the Hindu Women’s Rights to Property Act, 1937.
\n\t    In our opinion the answer to the problem would naturally
\n\tlie in a correct interpretation of ss- 7(1) & (2) of the Act
\n\tas  also  on  a true construction of s. 3(2)  of  the  Hindu
\n\tWomen’s Rights to Property Act, 1937 as amended by Act 11 of
\n\t1938.  It is true that while this Court has had occasions to
\n\tinterpret  the provisions of  the  Hindu Women’s  Rights  to
\n\tProperty  Act,\t1937–hereafter referred to as\tthe  Act  of
\n\t1937′—on  several  occasions, yet the\t exact\tpoint  which
\n\tarises\tin  this case has not yet been\tdetermined  by\tthis
\n\tCourt.\t In  order  to understand the  implications  Of\t the
\n\targuments advanced by counsel for the parties. before us, it
\n\tmay  be necessary to extract the relevant provisions of\t the
\n\tAct as also of the Act of 1937.\t Section 7 sub-ss. (1) & (2)
\n\tof the Act run thus:\n<\/p>\n
\t\t      “7. Interests ceasing on death,–
\n\t\t\t     (1)  Subject to the provisions of\tthis
\n\t\t      section, property in which the deceased or any
\n\t\t      other  person had an interest ceasing  on\t the
\n\t\t      death of the deceased shall be deemed to\tpass
\n\t\t      on the deceased’s death to the extent to which
\n\t\t      a benefit accrues
\n\t\t      (1957) A.C. 513–34 I.T.R. (E.D.) 20
\n\t\t      (2) (1968) A.C5.53–70 I.T.R. 663 (II. L.)
\n\t\t      726<\/span>
\n\t\t      or  arises  by the cesser\t of  such  interest,
\n\t\t      including, in particular, a coparcenary inter-
\n\t\t      est  in the joint family property of  a  Hindu
\n\t\t      family governed by the Mitakshara, Marumakkat-
\n\t\t      tayam or Aliyasantana law.\n<\/p><\/blockquote>\n
\t\t\t      (2) If a member of a Hindu coparcenary
\n\t\t      governed by the Mitakshara school of law dies,
\n\t\t      then the\tprovisions  of sub-section (1) shall
\n\t\t      apply  with  respect to the  interest  of\t the
\n\t\t      deceased in the coparcenary property only :–\n<\/p><\/blockquote>\n
\t\t\t   (a)\tif  the deceased had  completed\t his
\n\t\t      eighteenth year at the time of his death, or\n<\/p><\/blockquote>\n
\t\t\t      (b)  where  he had not  completed\t his
\n\t\t      eighteenth year  at the time of his death,. if
\n\t\t      his  father or other male as  cendant  in\t the
\n\t\t      male  line  was not a coparcener of  the\tsame
\n\t\t      family at the time of his death.”\n<\/p><\/blockquote>\n
\tIt  would  be seen that s. 7(1) consist\t of  two  parts–the
\n\tfirst  part  refers to the interest of\tthe  deceased  which
\n\tceases\ton his death and according to this part\t two  condi-
\n\ttions are necessary before there is a passing of the  inter-
\n\test–(1)  that\tthere must be a cesser of the  interest\t  by
\n\tvirtue\tof  the\t death of the deceased; and (2)\t that  as  a
\n\tresult\tof  such cesser a benefit accrues  or  arises.\t The
\n\tsecond\tpart  of sub-s. (1) contains an\t inclusive  category
\n\twhich  brings  within the fold of sub-s. (1)  a\t coparcenary
\n\tinterest  in  the joint family property of  a  Hindu  family
\n\tgoverned by the Mitakshara, Marumakkattayarn or Aliyasantana
\n\tlaw.  In the instant case, we are mainly concerned with\t the
\n\tMitakshara  law.  We might dispose of a short  argument\t ad-
\n\tvanced\tby Mr. S.T. Desai in support of the appeal  on\tthis
\n\tquestion.  It was submitted that the words “governed by\t the
\n\tMatakshara,  Marumakkattayam  or Aliyasan ana  law”  clearly
\n\tshow that the coparcenary interest  has been used in a\twide
\n\tsense  and  cannot be restricted to the\t strict\t coparcenary
\n\tinterest  known\t to the Mitakshara law alone-  In  the\tview
\n\twhich we take in this case, however, it is not at all neces-
\n\tsary to go into this point.  The main question for  determi-
\n\tnation\tis  as to whether the interest acquired by  a  Hindu
\n\twidow under the Act of 1937 can be said to be a\t coparcenary
\n\tinterest in the legal sense of the term.  Once a Hindu widow
\n\tis held to have a coparcenary interest, then there would  be
\n\tno  difficulty\tin  treating her as a member  of  the  Hindu
\n\tcoparcenary,  in  which case her interest  could  be  easily
\n\tvalued\taccording to the relevant provision of s. 39 of\t the
\n\tAct  which  runs thus:\n<\/p>\n
\t\t\t     “39.  (1)\tThe  value  of\tthe  benefit
\n\t\t      accruing\tor   arising from the  cesser  of  a
\n\t\t      coparcenary  interest  in\t any  joint   family
\n\t\t      property governed by the. Mitakshara school of
\n\t\t      a\t Hindu\tlaw which ceases on the death  of  a
\n\t\t      member thereof shall be the principal value of
\n\t\t      the  share in the joint family property  which
\n\t\t      would  have been allotted to the deceased\t had
\n\t\t      there been a partition immediately before\t his
\n\t\t      death.”\n<\/p><\/blockquote>\n
\t\t      In order to understand the content and charac-
\n\t\t      ter  of the interest which a Hindu widow\tgets
\n\t\t      by  virtue  of the statutory  provisions\tcon-
\n\t\t      tained in
\n\t\t      727<\/span>
\n\t\t      the  Act\tof 1937 there can be no\t doubt\tthat
\n\t\t      prior  to\t the passing of the Act\t of  1937  a
\n\t\t      Hindu woman had no right or interest at all in
\n\t\t      a Hindu coparcenary.  She was neither a copar-
\n\t\t      cener nor a member of the coparcenary nor\t did
\n\t\t      she have any interest in it, except the  right
\n\t\t      to get maintenance.  She also had no right  to
\n\t\t      demand partition of  the coparcenary  property
\n\t\t      after  the death of her husband.\tThe Act\t  of
\n\t\t      1937 introduced broad and important changes by
\n\t\t      bettering\t the  rights of a  Hindu  widow\t and
\n\t\t      conferring  on her the same interest  as\tpos-
\n\t\t      sessed  by her husband.  Sub-sections (2)\t and
\n\t\t      (3) of s. 3 of the Act of 1937 run thus:
\n\t\t\t    “(2) When a Hindu governed by any school
\n\t\t      of  Hindu law other than the Dayabhaga  school
\n\t\t      or by customary law dies having at the time of
\n\t\t      his death an interest in a Hindu joint  family
\n\t\t      property,\t his  widow shall,  subject  to\t the
\n\t\t      provisions  of  sub-section (3), have  in\t the
\n\t\t      property\t the   same interest as\t he  himself
\n\t\t      had.”\n<\/p><\/blockquote>\n
\t\t\t    “(3)Any  interest devolving on  a  Hindu
\n\t\t      widow   under the provisions of  this  section
\n\t\t      shall be the limited interest known as a Hindu
\n\t\t      Woman’s  estate,\tprovided  however  that\t she
\n\t\t      shall  have the same right of claiming  parti-
\n\t\t      tion as a male owner.\n<\/p><\/blockquote>\n
\tThe  words “the same interest as he himself had” in  sub  s.
\n\t(2)  of\t s. 3 of the Act of 1937 clearly indicate  that\t the
\n\tstatute\t gave effect to the well settled doctrine  of  Hindu
\n\tShastric  Law  that the persons of the.\t husband  after\t his
\n\tdeath  continues through his wife who is the surviving\thalf
\n\tof the husband and the husband continues to live through the
\n\twidow so long as the widow is alive.  It was this concept of
\n\tthe  Hindu Law which was sought to be recognised  and  given
\n\teffect\tto  by\tthe Act of 1937.   In  these  circumstances,
\n\ttherefore,  when’ the Legislature used the  expression\t“the
\n\tsame  interest as he himself had” it would include  all\t the
\n\tbundle\tof rights possessed by the husband which  would\t de-
\n\tvolve on the wife and if there were to be any limitations on
\n\tthose rights they were spelt out by subs. (3) itself,  name-
\n\tly, that while the Hindu widow would have the same right and
\n\tinterest  as  her husband, her interest would  only  be\t the
\n\tlimited\t interest  known as a  Hindu Woman’s  estate.\tSub-
\n\tsection (2) of s. 3 of the Act of 1937 further conferred  on
\n\tthe widow the right to demand partition and on partition she
\n\twas entitled to get the same share as her husband.  Thus the
\n\tposition appears to be that a Hindu widow was introduced for
\n\tthe  first time into the Hindu coparcenary having  the\tsame
\n\trights as her husband and became as it were a member of\t the
\n\tHindu  coparcenary with two qualifications, viz.,  (1)\tthat
\n\tshe  had only a limited interest; and (2)that she could\t not
\n\tbe  a coparcener because having regard to the nature of\t her
\n\tentry into the family after marriage with her husband  there
\n\twas no question of her getting interest in the Hindu  copar-
\n\tcenary by birth which is one of the most important incidents
\n\tof a Hindu coparcenary. All the other rights of a coparcener
\n\twere duly conferred on her by the Act of 1937.
\n\t    Dwelling on the content and import of the nature of\t the
\n\tinterest  of a Hindu widow this Court pointed out in  Jaisri
\n\tSahu v. Rajdewan<\/a>
\n\t728<\/span>
\n\tDubey  &  Others(1)  that on the death of  her\thusband\t the
\n\tproperties vested in the widow and she fully represented the
\n\testate.\t  In this connection, this Court made the  following
\n\tobservations:\n<\/p>\n
\t\t\t“When  a widow succeeds as heir to her\thus-\n<\/p><\/blockquote>\n
\t\t      band,  the   ownership in the properties, both
\n\t\t      legal  and  beneficial, vests   in  her.\t She
\n\t\t      fully  represents the estate, the interest  of
\n\t\t      the    reversioners  therein being  only\tspes
\n\t\t      succession’s.  The widow\t is entitled to\t the
\n\t\t      full  beneficial enjoyment of the\t estate\t and
\n\t\t      is not accountable to any one. It is true that
\n\t\t      she  cannot alienate the properties unless  it
\n\t\t      be  for  necessity  or for  benefit  to\t the
\n\t\t      estate, but  this restriction on her powers is
\n\t\t      not one imposed for the benefit of  reversion-
\n\t\t      ers  but\tis an incident of  the\t  estate  as
\n\t\t      known to Hindu law.”\n<\/p><\/blockquote>\n<\/blockquote>\n
\t\t\t  Similarly in a later case in Potti Lakshmi
\n\t\t      Perumallu\t  v.  Potti  Krishnavenamma<\/a>(2)\tthis
\n\t\t      Court  reiterated that a Hindu widow  was\t the
\n\t\t      surviving\t half of her husband and so long  as
\n\t\t      she was alive the husband continued to live in
\n\t\t      her.  This ‘Court observed as follows:
\n\t\t\t     “The  decisions  also  recognise\tthat
\n\t\t      though  the  widow does not, by virtue of\t the
\n\t\t      interest given to her by the new law become  a
\n\t\t      coparcener she being entitled to claim  parti-
\n\t\t      tion  of the joint family property is  in\t the
\n\t\t      same  position in which her  deceased  husband
\n\t\t      would  have been in the matter of exercise  of
\n\t\t      that  right.   That is to\t say,  according  to
\n\t\t      these decisions her interest is a\t fluctuating
\n\t\t      one  and\tis liable to  increase\tor  decrease
\n\t\t      according as there are accretions to or  dimi-
\n\t\t      nutions of the property.\tIn our opinion these
\n\t\t      decisions lay down the law correctly.”\n<\/p><\/blockquote>\n
\tIt  may be pertinent to note that in the aforesaid case\t the
\n\tCourt  was  considering the nature of the interest  which  a
\n\twidow  derived by virtue of the statutory substitution\tcon-
\n\ttained in s.3(2) of the Act of 1937. It was also pointed out
\n\tthat  like  other  coparceners of a  Hindu  coparcenary\t the
\n\tinterest of a widow until separated by a partition continued
\n\ta  fluctuating\tone  which was liable to  increase  case  or
\n\tdecrease with the deaths or additions in the family.\n<\/p>\n
\t\t   In Satrughan Isser v. Smt. Subujpari &  Others<\/a>(3)
\n\tthis  Court  pointed out that the interest  conferred  on  a
\n\tHindu  widow arose by statutory substitution and the Act  of
\n\t1937  introduced  changes  which were go far  alien  to\t the
\n\tstructure  of a Hindu coparcenary.  In this  connection\t the
\n\tCourt observed as follows:\n<\/p>\n
\t\t\t     “The  Act in inventing the widow  of  a
\n\t\t      member  of  a coparcenary\t with  the  interest
\n\t\t      which the member had at the time of his  death
\n\t\t      has introduced changes which are alien to the
\n\t\t      (1) [1962] 2 S.C.R. 558, 564-565.
\n\t\t      (2) [1965] 1 S.C.R. 26, 33.\n<\/p><\/blockquote>\n
\t\t      (3) [1967] 1 S,C.R. 7.\n<\/p><\/blockquote>\n
\t\t      729<\/span><\/p>\n
\t\t      structure of a coparcenary.  The interest of a
\n\t\t      widow arises not by inheritance nor by  survi-
\n\t\t      vorship, but by statutory substitution:
\n\t\t\t    A Hindu coparcenary under the Mitakshara
\n\t\t      school  consists of males alone:\tit  includes
\n\t\t      only  those  members who acquire by  birth  or
\n\t\t      adoption interest in the coparcenary property.
\n\t\t      The essence of coparcenary property  is  unity
\n\t\t      of ownership which is vested in the whole body
\n\t\t      of  coparceners.\tWhile it remains  joint,  no
\n\t\t      individual  member can predicate of the  undi-
\n\t\t      vided  property that he has a  definite  share
\n\t\t      therein.\tThe interest of each  coparcener  is
\n\t\t      fluctuating,  capable   of being\tenlarged  by
\n\t\t      deaths,  and  liable to be diminished  by\t the
\n\t\t      birth  of sons to coparceners: it is  only  on
\n\t\t      partition\t that the coparcener can claim\tthat
\n\t\t      he  has become entitled to a  definite  share.
\n\t\t      The  two\tprincipal incidents  of\t coparcenary
\n\t\t      property are: that the interest of coparceners
\n\t\t      devolves\tby survivorship and not\t by  inheri-
\n\t\t      tance; and that the mate issue of a coparcener
\n\t\t      acquires\t an  interest  in  the\t coparcenary
\n\t\t      property\tby  birth, not as  representing\t his
\n\t\t      father  but in his own independent  right\t ac-
\n\t\t      quired by birth.”\n<\/p><\/blockquote>\n
\t\t      As  pointed out above the essence of  coparce-
\n\t\t      nary property is the unity of ownership  which
\n\t\t      is vested in the whole body of coparceners and
\n\t\t      the  two\tprincipal incidents  of\t coparcenary
\n\t\t      property are that the interest of\t coparceners
\n\t\t      devolves\tby survivorship and not\t by  inheri-
\n\t\t      tance and that the male issue of a  coparcener
\n\t\t      acquires\t an  interest  in  the\t coparcenary
\n\t\t      property by birth and not as representing\t his
\n\t\t      father.  Alter having described the  incidents
\n\t\t      of a Hindu coparcenary, the Court proceeded to
\n\t\t      observe as follows:\n<\/p><\/blockquote>\n
\t\t\t    “By the Act (Act of 1937) certain  anti-
\n\t\t      thetical concepts are sought to be reconciled.
\n\t\t      A widow of a coparcener is invested by the Act
\n\t\t      with  the same interest which her husband\t had
\n\t\t      at  the time of his death in the\tproperty  of
\n\t\t      the  coparcenary.\t She is\t thereby  introduced
\n\t\t      into the coparcenary, and between the  surviv-
\n\t\t      ing  coparceners of her husband and the  widow
\n\t\t      so  introduced,  there  arises  community\t  of
\n\t\t      interest\tand  unity of possession.   But\t the
\n\t\t      widow does not on that account become a copar-
\n\t\t      cener: though invested with the same  interest
\n\t\t      which her husband had in the property she does
\n\t\t      not acquire the right which her husband  could
\n\t\t      have exercised over the interest of the  other
\n\t\t      copareeners.   Because of statutory  substitu-
\n\t\t      tion  of\ther  interest  in  the\t coparcenary
\n\t\t      property\tin place of her husband,  the  right
\n\t\t      which  the  other coparceners  had  under\t the
\n\t\t      Hindu  law of the Mitakshara school of  taking
\n\t\t      that  interest  by the  rule  of\tsurvivorship
\n\t\t      remains  suspended  so  long  as\tthat  estate
\n\t\t      enures.\t     *\t       *\t *  She\t has
\n\t\t      still  power to make her interest definite  by
\n\t\t      making a demand for partition, as a male owner
\n\t\t      may.  If the widow
\n\t\t      730<\/span>
\n\t\t      after  being introduced into family  to  which
\n\t\t      her  husband belonged does not seek partition,
\n\t\t      on the termination of her estate her  interest
\n\t\t      will merge into the coparcenary property.”
\n\t\t      Again  this Court did not approve of  the\t as-
\n\t\t      sumption\tmade by some Courts that  the  fight
\n\t\t      vested  in the widow was liable to revert\t to-
\n\t\t      the  coparcenary,\t even where, on\t demand\t for
\n\t\t      partition it became separated from the  copar-
\n\t\t      cenary  property, and in this connection\tthis
\n\t\t      court observed as follows:\n<\/p><\/blockquote>\n
\t\t\t      “The assumption that though the  right
\n\t\t      vested  in the widow by the Act is a right  of
\n\t\t      property\twhich  may on demand  for  partition
\n\t\t      become separated from the coparcenary property
\n\t\t      it  is still liable to revert to the  coparce-
\n\t\t      nary  on\tthe  determination  of\tthe  widow’s
\n\t\t      estate,  does  not  give full  effect  to\t the
\n\t\t      statutory\t conferment  upon the widow  of\t the
\n\t\t      same  right  of claiming partition as  a\tmate
\n\t\t      owner”.\n<\/p><\/blockquote>\n
\t\t      Finally this Court approved of certain  obser-
\n\t\t      vations  made  by\t the Madras  High  Court  in
\n\t\t      Parappagari  Parappa  alias  Hammanthappa\t and
\n\t\t      Another  v. Parappagari Nagamma and  others(1)
\n\t\t      where  Subba  Rao J.as he then was,  made\t the
\n\t\t      following observations:\n<\/p><\/blockquote>\n
\t\t\t     “She could ask for partition and  sepa-
\n\t\t      rate  possession of her husband’s\t share.\t  In
\n\t\t      case  she asked for partition,  her  husband’s
\n\t\t      interest\t‘should be worked out having  regard
\n\t\t      to  the circumstances obtaining in the  family
\n\t\t      on  the  date of partition.   If\tshe  divided
\n\t\t      herself  from the other members of the  family
\n\t\t      during  her  lifetime,  on  her  demise\t the
\n\t\t      succession  would be traced to her husband  on
\n\t\t      the  basis that the property was his  separate
\n\t\t      property.\t  If  there was\t no  severance,\t  it
\n\t\t      would  devolve  by survivorship to  the  other
\n\t\t      members  of the joint Hindu family :”  It\t is,
\n\t\t      therefore,  manifest from the aforesaid  deci-
\n\t\t      sion  that  if  the widow had  not  chosen  to
\n\t\t      exercise\ther right of partition, there is  no
\n\t\t      severance of the Hindu coparcenary and on\t her
\n\t\t      death the interest of the widow merges in\t the
\n\t\t      coparcenary  property or lapses to  the  other
\n\t\t      coparceners. As already indicated above,\tthis
\n\t\t      Court in Satrughan v. Smt. Sabujpari &  others
\n\t\t      (supra)  had taken the same view and had\tcon-
\n\t\t      firmed  the  Division Bench  decision  of\t the
\n\t\t      Patna High Court in Smt. Sabujpari and another
\n\t\t      v.  Satrughan Isser and others(2),  where\t the
\n\t\t      Patna High Court after considering the  entire
\n\t\t      law on the subject, observed thus:
\n\t\t\t   “After  having  considered  the   various
\n\t\t      authorities  and\tthe various aspects  of\t the
\n\t\t      case,  my\t conclusions  are  that,  under\t the
\n\t\t      Provisions  of the Act a widow of\t a  deceased
\n\t\t      coparcener  is placed in same position as\t the
\n\t\t      deceased coparcener was, for the reason of the
\n\t\t      fiction  that  half the body of  the  deceased
\n\t\t      husband survived in the widow; that, like\t her
\n\t\t      husband, the widow also is entitled to  effect
\n\t\t      severance of the joint status
\n\t\t      (2) A.I.R. 1958 Pat. 405, 410.\n<\/p><\/blockquote>\n
\t\t      731<\/span><\/p>\n
\t\t      of the family by an unequivocal expression  of
\n\t\t      intention separate;*\t*\t * that\t  in
\n\t\t      case the widow does not exercise her right  of
\n\t\t      partition\t and  dies  without  expressing\t any
\n\t\t      intention\t to  separate, the interest  of\t the
\n\t\t      husband, which she enjoyed, goes by  survivor-
\n\t\t      ship  to\tthe  other  members  of\t the   joint
\n\t\t      family.”\n<\/p><\/blockquote>\n
\t\t      We  find ourselves in complete agreement\twith
\n\t\t      the observations made by the Patna High  Court
\n\t\t      to which one, of us (Untwalia, J., as he\tthen
\n\t\t      was) was a party.\t The view taken by the Patna
\n\t\t      High Court in the aforesaid case was later  on
\n\t\t      approved\tby  a Full Bench of the\t Patna\tHigh
\n\t\t      Court in Mst. Khatrani Kuer v. Smt. Tapeshwari
\n\t\t      Kuer(1).\n<\/p><\/blockquote>\n
\t\t\t  In  State  Bank of India v.  Ghamandi\t Ram<\/a>
\n\t\t      (dead) through Shri Gurbux Rai(2), this Court,
\n\t\t      while  dealing  with the\tincidents  of  Hindu
\n\t\t      coparcenary, observed as follows:
\n\t\t\t “According  to\t the  Mitakshara  School  of
\n\t\t      Hindu Law all   the property of a Hindu  joint
\n\t\t      family  is held in  collective   ownership  by
\n\t\t      all the coparceners in a quasi-corporate capa-\n<\/p><\/blockquote>\n
\t\t      city.    *       *      *\t    The incidents of
\n\t\t      coparcenership  under the Mitakshara law\tare:
\n\t\t      first, the lineal male descendants of a person
\n\t\t      up to the\t third\tgeneration, acquire on birth
\n\t\t      ownership\t in  the  ancestral   properties  is
\n\t\t      common;  secondly, that no alienation  of\t the
\n\t\t      property.\t any time work out their  rights  by
\n\t\t      asking  for  partition;  thirdly,\t that\ttill
\n\t\t      partition\t each member has got  ownership\t ex-
\n\t\t      tending  over the entire property,  conjointly
\n\t\t      with  the rest; fourthly, that as a result  of
\n\t\t      such co-ownership the possession and enjoyment
\n\t\t      of the properties is common; fifthly, that  no
\n\t\t      alienation of the property is possible  unless
\n\t\t      it  be for necessity, without the\t concurrence
\n\t\t      of  the  Coparceners, and\t sixthly,  that\t the
\n\t\t      interest\tof a deceased member lapses  on\t his
\n\t\t      death  to the survivors.\tA coparcenary  under
\n\t\t      the Mitakshara School is a creature of law and
\n\t\t      cannot  arise  by\t act of\t parties  except  in
\n\t\t      so  far that on adoption the adopted  son\t be-
\n\t\t      comes a coparcener with his adoptive father as
\n\t\t      regards  the ancestral properties of the\tlat-
\n\t\t      ter.”\n<\/p><\/blockquote>\n
\tThus  analysing the ratio of a aforesaid case regarding\t the
\n\tincidents  of  a Hindu coparcenary it would  appear  that  a
\n\tHindu coparcenary has six essential characteristics, namely,
\n\t(1) that the lineal male descendants up to the third genera-
\n\ttion acquire an independent right of ownership by birth\t and
\n\tnot as representing their ancestors; (2) that the members of
\n\tthe  coparcenary have the right to work out their rights  by
\n\tdemanding  partition; (3) that until partition, each  member
\n\thas  got. ownership extending over the entire property\tcon-
\n\tjointly\t with  the. rest and so long as no  partition  takes
\n\tplace,\tit is difficult for any copercener to predicate\t the
\n\tshare  which he might receive; (4) that as a result of\tsuch
\n\tco-ownership the possession and enjoyment of the property iS
\n\tcommon; (5) that there can be no alienation of the  property
\n\twithout
\n\t  (1) A.I.R. 1964 Pat 261. [19691 3 S.C.R, 681,686.\n<\/p>\n
\t732<\/span><\/p>\n
\tthe  concurrence of the other coparceners unless it  be\t for
\n\tlegal  necessity;  and (6) that the interest of\t a  deceased
\n\tmember\tlapses\ton his death and merges in  the\t coparcenary
\n\tproperty.   Applying these tests to the interest of a  Hindu
\n\twidow  who has been introduced into a coparcenary by  virtue
\n\tof  the Act of 1937, we find that, excepting  condition\t No.
\n\t(1),  all other conditions are fully satisfied in case of  a
\n\tHindu  widow succeeding to the interest of her husband in  a
\n\tHindu  coparcenary.   In other words,  after  her  husband’s
\n\tdeath  the  Hindu widow under the Act of 1937  has  got\t the
\n\tright  to demand partition, she cannot predicate  the  exact
\n\tshare  which she might receive until partition is made,\t her
\n\tdominion extends to the entire property conjointly with\t the
\n\tother members of the coparcenary, her possession and  enjoy-
\n\tment  is  common, the property cannot be  alienated  without
\n\tconcurrence  of\t all the members of the family,\t except\t for
\n\tlegal  necessity,  and\tlike other  coparceners\t she  has  a
\n\tfluctuating interest ‘in the property which may be increased
\n\tor  decreased by deaths or additions in the family.   It  is
\n\tmanifest that she cannot fulfil the first condition, because
\n\tshe enters the coparcenary long after she is born and  after
\n\tshe  is married to her husband and acquires his interest  on
\n\this death.  Thus, short of the first condition, she possess-
\n\tes all the necessary indicia of a coparcenary interest.\t The
\n\tfact that before the Act of 1956, she had the characteristic
\n\tof  a widow-estate in her interest in the property does\t not
\n\tdetract any the less from this position.  It must follow  as
\n\ta  logical corollary that though a Hindu widow cannot  be  a
\n\tcoparcener,  she has coparcenary interest and she is also  a
\n\tmember of a coparcenary by virtue of the rights conferred on
\n\ther under the Act of 1937.\n<\/p>\n
\t    There  is  yet another important aspect  of\t the  matter
\n\twhich  has  to be considered.  At the time when\t the  Estate
\n\tDuty Act was passed in 1953, the Legislature was fully aware
\n\tof the statutory interest conferred on a widow by virtue  of
\n\tthe Act of 1937 and the incidents thereof. In these  circum-
\n\tstances\t it is not reasonable to infer that the\t Legislature
\n\tcould  have intended that though a Hindu widow has  got\t the
\n\tSame  interest as her husband in the Hindu  coparcenary\t and
\n\thas  also  the right to demand partition  and  her  interest
\n\twhich is a fluctuating. one would lapse to the other  copar-
\n\tceners in case of her death without seeking partition in the
\n\tsame  manner as that of other coparceners, yet it should  be
\n\texempt from estate duty.\n<\/p>\n
\t    The\t sheet-anchor of the argument of the respondent\t was
\n\tthe  Privy Council decision in Arunachalam  Chettiar’s\tcase
\n\t(supra).   In  the first place, the facts of that  case\t are
\n\tclearly distinguishable from the facts of the present  case.
\n\tIn  that  case,\t the Hindu  undivided  family  consisted  of
\n\tfather,\t son  and  some female members.\t  According  to\t the
\n\tPrivy\tCouncil,  the  females\twere  merely   entitled\t  to
\n\tmaintenance.  The females there could not have any  interest
\n\tin  the coparcenary nor could any such argument be  advanced
\n\tbecause\t there\twas no statute similar to the Act  of  1937.
\n\tMoreover,  in  the  Estate Duty Ordinance  which  was  being
\n\tconstrued  by  the  Privy  Council  there  was\tneither\t any
\n\tprovision  like the inclusive part of sub-s. (1) and  sub-s.
\n\t(2)  of s. 7 nor any provision similar to s. 39 of the\tAct.
\n\tIn these circumstances, we do not see how the Privy  Council
\n\tdecision in Arunachalam Chattiar’s case
\n\t733<\/span>
\n\t(supra)\t can be called in aid to support the  contention  of
\n\tthe respondent.\t In the instant case, once it is held, as it
\n\tmust be, that Smt. Alladi was a member of the Hindu coparce-
\n\tnary,  her interest was undoubtedly a  coparcenary  interest
\n\twhich  lapsed on her death and merged into the\tcoparcenary.
\n\tIt  was also clearly capable of valuation, unlike the  posi-
\n\ttion in Arunachalam Chettiar’s case where the Privy  Council
\n\twas  construing\t a provision  similar to s. 40 of  the\tAct,
\n\twhich,\tin  our opinion, has no application in\tthe  present
\n\tcase, it being covered by s. 39 of the Act.  A fortiori\t the
\n\tsame  observations apply to the case of Gertside  v.  Inland
\n\tRevenue Commissioners (supra).\tThat case has no application
\n\there  where  we are concerned with the concept\tof  a  Hindu
\n\tcoparcenary  which is totally alien to the  estates  contem-
\n\tplated\tunder the English Acts.\t For these  reasons,  there-
\n\tfore,  we  are\tclearly of the opinion that  the  two  cases
\n\trelied\tupon  by the High Court do not appear to be  of\t any
\n\tassistance  in deciding the points at issue in\tthe  present
\n\tappeal, and the High Court was in error in basing its  deci-
\n\tsion  on the aforesaid cases ignoring the decisions of\tthis
\n\tCourt  as  also the peculiar and special provisions  of\t the
\n\tAct.\n<\/p>\n
\t    Finally,  it was vehemently contended by Mr. Sastri\t for
\n\tthe respondent that the right of a Hindu widow under the Act
\n\tof 1937 was merely a statutory substitution of a new  status
\n\tby  her introduction into the copercenary and she could\t not
\n\tbe  treated  either as a coparcener or a me,  tuber  of\t the
\n\tcopercenary or to possess any kind of coparcenary  interest.
\n\tWhile we agree that the widow after the introduction in\t the
\n\tcoparcenary  could not be held to have become a\t coparcener,
\n\tbecause one of the essential characteristics of a  coparcen-
\n\ter,  namely,  acquisition of interest by  birth,  is  wholly
\n\twanting\t in  her case, yet when the  Legislature  which\t was
\n\tfully  aware of the status of a Hindu widow under the  Shas-
\n\ttric  Law  chose to improve her status by conferring  a\t new
\n\tright  on  her under the Act of 1937, and with\tthis  avowed
\n\tobject clothed her with all the rights and concomitants of a
\n\tcoparcener’s  interest,\t it is futile to  contend  that\t the
\n\twidow  could not be treated either as a member of the  Hindu
\n\tcoparcenary or as having been conferred coparcenary interest
\n\tin the property.  Even though the widow is not a  coparcener
\n\tin the strictly legal sense of the term, the interest  which
\n\tshe has is the same interest as her husband and that is\t the
\n\tcoparcenary interest with the only limitation placed on\t her
\n\tby  s.\t3(3) of the Act of 1937, namely, that  her  interest
\n\twould be the limited interest of a Hindu widow. The  conclu-
\n\tsion is therefore inescapable that Smt. Alladi did possess a
\n\tcoparcenary  interest which lapsed on her death\t and  merged
\n\tinto the coparcenary and the case was clearly covered by the
\n\tinclusive  part\t of sub-s. (1) of s. 7 and under s.  39\t the
\n\tvalue of the benefit accruing or arising from the cesser  of
\n\ther coparcenary interest was to be determined by taking\t the
\n\tprincipal  value of the share in the joint  family  property
\n\twhich  would  have been allotted to her, had  there  been  a
\n\tpartition immediately before her death.\n<\/p>\n
\t     The  last plank of the argument of the  respondent\t was
\n\tthat  the Estate Duty Act being a fiscal statute  should  be
\n\tconstrued  strictly so as to give every benefit of doubt  to
\n\tthe subject.  There can be no quarrel with this\t proposition
\n\tbut  when  the phraseology of a particular  section  of\t the
\n\tstatute takes within its sweep the transaction which is
\n\t734<\/span>
\n\ttaxable,  it is not for the Court to strain and\t stress\t the
\n\tlanguage  of  the section so as to enable the  tax-payer  to
\n\tescape\tthe tax.  In the view that we take in this case,  it
\n\tis manifest that the legislative intent reflected in the Act
\n\tof  1937  and the Estate Duy Act, 1953, must be\t given\tfull
\n\teffect.\n<\/p>\n
\tSummarising,  therefore,  the position that  emerges  is  as
\n\tfollows:\n<\/p>\n
\t    By\tvirtue of the provisions of the Act of 1937 a  Hindu
\n\twidow  undoubtedly possesses a coparcenary interest as\tcon-
\n\ttemplated  by s. 7( 1 ) of the Act and she is also a  member
\n\tof  a Hindu copercenary as envisaged by s. 7(2) of the\tAct.
\n\tOn the death of Smt. Alladi, therefore, there was clearly  a
\n\tcesser of her interest and her interest merged in the coper-
\n\tcenary property and by reason of the inclusive part of\tsub-
\n\ts.  (1\t) of s. 7, it must be taken to have  passed  on\t her
\n\tdeath  and  was hence exigible to estate  duty.\t  Since\t Smt
\n\tAlladi\twas  a member of the copercenary, this\tinterest  of
\n\ther’s  which passed on her death was liable to be valued  in
\n\taccordance with the method provided by s. 39 of the Act.
\n\t    The interpretation of s. 40 of the Act is not free\tfrom
\n\tdifficulty,  but as the present case squarely  falls  within
\n\tthe ambit of s. 7 (1 ) latter part and sub-s. (2) of s. 7 of
\n\tthe Act which attracts s. 39, it is not\t   at all  necessary
\n\tfor  us\t to enter into the complex domain of the  scope\t and
\n\tambit of s. 40 of the Act in this case.\n<\/p>\n
\t    The\t result is that the appeal is allowed, the  judgment
\n\tof the High Court is set aside and the question referred  to
\n\tthe  High Court is answered in the affirmative.\t There\twill
\n\tbe no order as to costs.\n<\/p>\n
\tS.R.\t\t\t\t\t\t      Appeal\n\tallowed.\n\t735<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Controller Of Estate Duty Madras vs Alladi Kuppuswamy on 3 May, 1977 Equivalent citations: 1977 AIR 2069, 1977 SCR (3) 721 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: CONTROLLER OF ESTATE DUTY MADRAS Vs. RESPONDENT: ALLADI KUPPUSWAMY DATE OF JUDGMENT03\/05\/1977 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA BHAGWATI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-4389","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nController Of Estate Duty Madras vs Alladi Kuppuswamy on 3 May, 1977 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/controller-of-estate-duty-madras-vs-alladi-kuppuswamy-on-3-may-1977\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Controller Of Estate Duty Madras vs Alladi Kuppuswamy on 3 May, 1977 - 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