# !TZI CONTROLLER OF ESTATE DUTY MADRAS v. ALLADI KUPPUSWAMY

- **Citation:** [1977] 3 S.C.R. 721
- **Court:** Supreme Court of India
- **Decided:** 1977-05-03
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tzi-controller-of-estate-duty-madras-v-alladi-kuppuswamy-7242
- **Pages:** 14

## Headnote

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!TZI
CONTROLLER OF ESTATE DUTY MADRAS
v.
ALLADI KUPPUSWAMY
May 3, 1977
•
[P, N, BHAGWATI, N, L. UNTWALIA ANIJ S. MURTAZA FAZAL ALI, JJ.I
£.state Duty Act, 1953-Sections 7(1) and (2) and 39-Scope of.
Hindu
Joint
Fan1ily-Death
of
coparcener-Nature of interest
of
widow--Widow not claiminK partition during the life time-Death of widow--
Whether interc5t in joint fan1ily prop:erty
passes-Liability to estate
dutyfatate Duty Act, 1953, SS,, 5, 6, 7(1), 39, 40(a) and (b)-Hindu Women's
Siglu.1 tc I'roperty Act, 1937, Section 3(2).
Construction of fiscal statutes-Duty of the court-Legislative intent
reflected in the Acts must be given full effect to.
Sbri Anadi wa~ a member of the Hindu coparcenary consisting of hl1nself,
his wife (Smt. Alladi) and three sons.
Shri Alladi who died before the Estate
Duty Act 1953 came into force, during his life time had settled certain properties absolutely on his wife and had also declared certain other properties
to form part of the joint family properties. Smt. Alladi died on January 5,
1956, a fev.' months before the passing of the Hindu Su~cession Act, 1956.
The Assistant Controller of Estate Duty valued her estate at a total amount
of Rs. 7,25,527 /- including a sum of Rs. 2,02,271 /- being the value of her
I/4th share in the joint family properties, on the footing that as Smt. AUadi was
a member of the Hindu coparcenary, her interest in the joint family properties
passed on her death to the other three sons and the value of this interest being
l I 4th, the heirs would be liable to pay estate duty on the value of the I /4th.
share.
The respondent filed an appeal before the Central Board of Revenue
OJ.nd <..:ontended that as Smt. Allacli died as a Hindu widow she possessed no
coparcenary interest which could pass on her ·death; her interest merged without any benefit accruing or arising to the coparceners and hence section 7 subsection ( 1) had no application. This plea did not find favour with the Board
which upheld the order of the Assistant Controller of Estate Duty as correct.
The Board further held that the Hindu widow's estate created by s. 3(2) of
the ffindu WidO\VS Rights to Property Act, 1937, wa-s an interest in property--
which cef<sed on the death of the widow attracting estate duty. Thereupon,
the respondent moved the Board to make reference to ~he High Court of
Madras for decision of the questions of law involved in the case.
The Board
referred three questions to the High Court under section 64(1) of the Act,
but at thei time of the hearing of the reference, the respondent confined his arguments only to the following issue, namely "Whether on the facts and in the
circurristances of the case 1/ 4th share of the deceased in the joint family properties to which she was entitled under s. 3 of the Hindu Womens Rights to
Property Act, 1937, was correctly included in her estate as property deemed
to pass on her death under s. 7 of the Estate Duty Act, 1953." The High
Court relying on the decisions of the Privy Council in Attorney General of
Cey/011 v. Arunachalani Chettiar (1957) AC 513 and Gartside v. Inland Revenue
Comn1issio11ers 1968 AC 553 held that the interest of Smt. A11adi was not
a coparcenary interest which could have passed under s. 7(1) of the Act and
as the said interest was incapable of .valuation, it was not exigible to estate
duty and thus
held against the
Revenue and in favour of the .accountable
person.
Allowing the appeal by certificate, the Court,
HELD: (I) By virtue of the provisions of the Act of 1937 a·Hindu widow
undoubtedly p-05sess a coparcenary jnterest
as
contemplated
by
s, 7 (I l
of the Act and she is also a member of the Hindu copar~enary as envisa~d·
by ,, 7 (2) of the Act f734 Bl
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SUPREME COURT REPORTS
[19771 3 s.c.i.
(2) Prior to the passing of the Act of 1937 a Hindu Woman had no right
A
t>r interest at all in a Hindu coparcenary. The Act of 1937 bettered the rights
of a Hindu widow and conferred on her by s. 3 th;: same interest

## Text

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!TZI
CONTROLLER OF ESTATE DUTY MADRAS
v.
ALLADI KUPPUSWAMY
May 3, 1977
•
[P, N, BHAGWATI, N, L. UNTWALIA ANIJ S. MURTAZA FAZAL ALI, JJ.I
£.state Duty Act, 1953-Sections 7(1) and (2) and 39-Scope of.
Hindu
Joint
Fan1ily-Death
of
coparcener-Nature of interest
of
widow--Widow not claiminK partition during the life time-Death of widow--
Whether interc5t in joint fan1ily prop:erty
passes-Liability to estate
dutyfatate Duty Act, 1953, SS,, 5, 6, 7(1), 39, 40(a) and (b)-Hindu Women's
Siglu.1 tc I'roperty Act, 1937, Section 3(2).
Construction of fiscal statutes-Duty of the court-Legislative intent
reflected in the Acts must be given full effect to.
Sbri Anadi wa~ a member of the Hindu coparcenary consisting of hl1nself,
his wife (Smt. Alladi) and three sons.
Shri Alladi who died before the Estate
Duty Act 1953 came into force, during his life time had settled certain properties absolutely on his wife and had also declared certain other properties
to form part of the joint family properties. Smt. Alladi died on January 5,
1956, a fev.' months before the passing of the Hindu Su~cession Act, 1956.
The Assistant Controller of Estate Duty valued her estate at a total amount
of Rs. 7,25,527 /- including a sum of Rs. 2,02,271 /- being the value of her
I/4th share in the joint family properties, on the footing that as Smt. AUadi was
a member of the Hindu coparcenary, her interest in the joint family properties
passed on her death to the other three sons and the value of this interest being
l I 4th, the heirs would be liable to pay estate duty on the value of the I /4th.
share.
The respondent filed an appeal before the Central Board of Revenue
OJ.nd <..:ontended that as Smt. Allacli died as a Hindu widow she possessed no
coparcenary interest which could pass on her ·death; her interest merged without any benefit accruing or arising to the coparceners and hence section 7 subsection ( 1) had no application. This plea did not find favour with the Board
which upheld the order of the Assistant Controller of Estate Duty as correct.
The Board further held that the Hindu widow's estate created by s. 3(2) of
the ffindu WidO\VS Rights to Property Act, 1937, wa-s an interest in property--
which cef<sed on the death of the widow attracting estate duty. Thereupon,
the respondent moved the Board to make reference to ~he High Court of
Madras for decision of the questions of law involved in the case.
The Board
referred three questions to the High Court under section 64(1) of the Act,
but at thei time of the hearing of the reference, the respondent confined his arguments only to the following issue, namely "Whether on the facts and in the
circurristances of the case 1/ 4th share of the deceased in the joint family properties to which she was entitled under s. 3 of the Hindu Womens Rights to
Property Act, 1937, was correctly included in her estate as property deemed
to pass on her death under s. 7 of the Estate Duty Act, 1953." The High
Court relying on the decisions of the Privy Council in Attorney General of
Cey/011 v. Arunachalani Chettiar (1957) AC 513 and Gartside v. Inland Revenue
Comn1issio11ers 1968 AC 553 held that the interest of Smt. A11adi was not
a coparcenary interest which could have passed under s. 7(1) of the Act and
as the said interest was incapable of .valuation, it was not exigible to estate
duty and thus
held against the
Revenue and in favour of the .accountable
person.
Allowing the appeal by certificate, the Court,
HELD: (I) By virtue of the provisions of the Act of 1937 a·Hindu widow
undoubtedly p-05sess a coparcenary jnterest
as
contemplated
by
s, 7 (I l
of the Act and she is also a member of the Hindu copar~enary as envisa~d·
by ,, 7 (2) of the Act f734 Bl
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SUPREME COURT REPORTS
[19771 3 s.c.i.
(2) Prior to the passing of the Act of 1937 a Hindu Woman had no right
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t>r interest at all in a Hindu coparcenary. The Act of 1937 bettered the rights
of a Hindu widow and conferred on her by s. 3 th;: same interest as possessed
hy her husband. [727 A]
(3) The words "the same interest as he himself had" in sub-section (2)
of s. 3 of the Act of 1937 clearly indicate that the statute gave effect to the
well-settled doctrine of Hindu shastric law that the persona of the husband
after his death continues through his wife who is a surviving half and the
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husband continues to live through the widow so long as the widow is alive.
When the Legislature used the expression "the same interest as he himself had",
it would include all the rights possessed by the husband which could devolve
Qn the wife. Thus, a Hindu widow was introduced for the first time into the
Hindu coparcenary having the same rights as her husband and became as it
were a member of the Hindu coparcenary with two qualifications, namely, (i)
she had only a limited interest and (ii) that she could not be a coparcener
because having regard to the nature of her entry into the family after marriage
with her husband, there was no question of her getting interest in the
Hindu
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coparcenary bv birth which is one of the most important incidents of a Hindu
<:Oparcenary. [727 D-EJ
( 4) The essence of coparcenary property is the unity of ownership which
is vested in the whole bcxly of coparceners and the two principal incidents of
coparcenary are that the interest of coparceners devolve by survivorship and not
by inheritance and that the male issue of a_ coparcenary acquires an interest
in the coparcenary property by birth and not as representing his father.
[729 D-El
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(5) A Hindu coparcenary has six essential characteristics, namely, (i) that
the lineal male descendants upto the third generation acquire an independent
right of ownership by birth and not as representing their ancestors; (ii) that
the members of the coparcenary have the right to work out their rights by
demanding partition; (iii) that until partition, each membe:r; has got ownership
extending over the entire property jointly with the rest and so long as no parti·
tion takes p1ace it is difficu1t for any coparcener to predicate the share which
he might receive; (iv) that as a result of such co-ownership the possession and
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enjoyment of the property is common; (v) that there can be no alienation of
the propertv without the concurrence of the other coparceners unless it be for
legal necessity and (vi) that the interest of a deceased member lapses on his
death and merges in the coparcenary property.
Applying these tests to the
interest of a Hindu widow who has been introduced into a
cooarcenarv by
virtue of the Act of 1937, it will be seen, that short of the first condition
she possesses all the necessary indicia of a cooarcenary interest.
The fact
that before the Act of 1956 she had the characteristic of a widow estate in her
interest in the prooerty does not detract any the less from this -position. There·
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fore, though a Hindu widow
cannot be a copa"rcener she has
cooarcenary
interest and is also a member of the conarcenarv bv virtue of the rights con·
ferred on her under the Act of 1937.
[731 F-H, 732 A-B-D)
State Bank of India v. Ghan1andi Ram (dead) through Shri G1irbax Rai [1969]
3 SCR 681- 686. applied.
(6) If the widow has not chosen to exercise her right of partition, there
is no severence of the Hindu coparcenary and on her death the interest of
the widow merges in the coparcenary property or lapse.s to the other co.
parceners.
Parappagari Parappa alias Han1nuutthappa and Anr. v. Parappagari Naganzan
and Ors. ILR 1954 Madras 183; S. T. Sabujpari and Anr. v. SatruRhan lsser and
Ors. AIR 1958 Patna 405, 410 and Mst. Khatrani Kuer v .. S1nt. Tapeslnvari Kuer
AIR 1964 Pat. 261, approved.
(7) It was not the intent of the legislature which was fully aware of the
statutory interest conferred on a H:ndu widow bv virtue of the Act of 1937
and the incidents thereof that though a Hindu widow has got the same interest
as her husband in the Hindu coparcenary and has also the right to demand
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OONTROLLER ESTATE DUTY v. ALLADI KUPPUSWAMY (Fazill Ali, J.) 7 23
partition and her interest is a fluctuating one would lapse to the other coparceners in case of her death without seeking partition in the same manner
as that of other coparceners, yet it should be exempt from estate duty. In
the instant case, Smt. Alladi was a member of the Hindu coparcenary, her
interest was undoubtedly a coparcenary interest which lapsed on her death
ap.d merged into the coparcenary, It was clearly capable of valuation, it being
covered by s. 39 of the Act. Th;: High Court was in error in basin2 its
decision on the Arunachalam Chettiar's case and also in Gartside's case ignoring
the :decisions of this Court and also the peculiar and special provisions of
tho Act. [732 F, 733 A-C]
Attorney-General of Ceylon v. Arunchalam Chettiar (1957)
AC 513=
34 ITR (E.D.) 20 and Gartside v. Inland Revenue Commissioners (1968) AC
553=70 ITR 663 (H.L.) held inapplicable.
(8) It is wrong to contend that the widow could not be treated either a•
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a member of the Hindu coparcenary or as having been conferred coparcenary
interest in the property. Even though the wido\v is not ~ coparcener in the
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itrictly legal sense of the term, the interest which she has is the same interest
as her husband and that is the coparcenary interest with the only limitation
placed on her bys. 3(3) of the Act of 1937, namely, that her interest would
be limited interest, of a Hindu widow. In the instant case, Smt. Alla di possieiied a coparcenary interest which lapsed on her death and merged into the
coparcenary and was clearly covered by the inclusive part of sub-s. (1) of
s. 7 and under s. 39, the value of the benefit accruing or arising from the
cesier of the coparcenary interest was to be determined by taking the principal
value of the share and the joint family property which would have been allotted
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tQ -~ had there been partition immediately before her death. The present
c~se squarely falls within the ambit of s. 7(1) latter part and sub-s. (2) of
s. 7 of the Act ·which
attracts s. 39. By reason of the inclusive part of
su_b-s. (1) of s. 7 it must be taken to have passed on her death and was hence
exigib!e to estate duty. [733 D-G] ·
(9) When the phraseology of a particular section of the statute takes within
itS sweep the transaction which is taxable, it is not for the court to strain and
stteiS the language of the section so as to enable the tax-payer to escape the tax.
The· .legislative intent reflected in the Act of 1937 and Estate Duty Act, 1953,
must be given full effect to. [733 H, 734 Al
ClvIL APPELLATE JURISDICTION : Civil Appeal No. 2003/71
(From the Judgment and Order dated 5-12-1969 of the Madras
High Court in Tax-Case No. 40 of 1965)
S. T. Desai, P. L. Juneja and R. N. Sachthey, for the appellant.
G. Ve11katarama Sastry, K. R. Ramamani and J. Ramiimurthi for
the respondent.
The Judgment of the Court was delivered by
FA7-AL Au, J.-This appeal by certificate is directed against a Full
Bench judgment of the Madras High Court dated December 5 1969Alladi Kuppuswami v. Controller of Estate Duty, Madra~(')-by which
the reference made to the High Court by the Central Board of Revenue
was answered in favour of the accountable person ·and against the
Revenue.
The case involves an interesting and important question of
law in respect of ambit and scope of ss. 7(1) & (2) as also 39 of the
(I) 76 !. T. R. 500
7-707SCI/77
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SUPREME COURT REPORTS
[1977] 3 S.C,R.
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.Estnte Duty Act, 1953-hereinafter referred to as 'the Act'.
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In order
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to decide the question of law arising in the appeal, it may be necessary
to set out briefly the facts of the case.
Sri Alladi Krishnaswami Iyer
died some time before the passing of the Estate Duty Act, 1953, but
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during his life time he had settled certain properties absolutely on hfa
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wife ·smt. Alladi Venkatakshmamma-to be referred in short as 'Sm!.
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Alladi'-and be had also declared certain other properties to from part
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of the joint family properties.
Sri Alladi Krishnaswami Iyer-hereafter to be referred to as "Sbri Alladi" was a member of the Hindu
coparcenary consisting of himself, his wife and three sons.
In the
instant case we are only concerned with the joint family properties left
by Shri Alladi.
Smt. Alladi died on January 5, 1956 a few months
before the passing of the Hindu Succession Act,. 1956 and the Assisc
tant Controller of Estate Duty valued her estate at a total amount of
Rs. 7,25,527 including a sum of Rs. 2,02,271 being the value of her
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Hh share in the joint family pr(\]lerties. The dispute in the present case
centres round the inclusion of the aforesaid sum of Rs. 2.02,2711-.
'Ibe Revenue assessed the estate duty on the footing that as Smt.
Alladi was a member of the Hindu coparcenary her interest in the joint
famil) properties passed on her death to the other three sons and the
'1alue of this interest being ! 14th the heirs would be liable to pay estate
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duty on the value of the !/4th share assessed at Rs. 2,02,271/-. Tile
accountable persons raised several contentions before the Revenue ineluding the question as to whether or not the Act would apply to agricultural lands as also whether interest on certain fixed deposits in Government securities would be assessable under the Act.
It appears,
however, that before the High Court the respondent pressed only the
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question relating to the inclusion of the value of 1I4th share of Smt.
Alladi valued at Rs. 2,02,2711-. The respondent filed an appeal before
the Board and contended that as Smt. Alladi died as a Hindu widow
..
she possessed no coparcenary interest which could pass on her death :
her interest merged without any benefit accruing or arising to the
coparceners and hence s. 1 sub-s. (1) had no aoplication.
The plea
taken by the respondent did not find favour with the Central Board
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of Revenue which upheld the order of the Assistant Controller of
Estate Duty.
Thereupon the re;-pondent moved the Board of Revenue to make a
ieference to the High Court of Madras for decision of the questions of
Jaw involved in the case.
The Board accordingly referred the following questions to the High Court :
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"1. Whether on the facts and in the circumstances of
the case one-fo~h share of the deceased in the joint family
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properti~s, to which she was entitled under section 3 of the
Hindu Women's Ri~hts to Property Act, 1937, was correctly
tii
included in her estate as property deemed to pass on her
dtath under section 7 of the &tate Duty Ac~ 1953?
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2. Whether the Estate Duty Act, 1953, in so far as it
,
seeks to levy duty on agricultural lands, is ultra vires of the
legislative powers of the Union Legislature ?
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.CONTROLLER ESTATE DUTY v. ALLADI KUPPUSWAMY (Fazal Ali, J.)' 725
· 3. Whether, on the facts and in the circumstances of the
case, the accrued interest on fixed deposits and Govermuent
securities up to the date of death of the deceased was correctly included in her estate under section 34(2) of the Estate
Duty Act, 1953 ?
Although three questions had been referred to the High Court by the
Huard, at the hearing of the appeal the respondent gave up questions
Nos. 2 and 3 and confined his arguments only to question No. 1 whicb
falls for determination in this case.
The High Court, relying mainly
on lhe decisions of the Privy Council in Attorney-General of Cey/011
v. Arw1achalam Chettiar;(') and Ganside v. Inland Revenue: Commissioners(') came to the conclusion that the interest of Smt. Alladi
wa, not a coparcenary interest which could have passed under s. 7 ( l)
of the Act and as the said interest was incapable of valuation wns
nnf exigible to estate duty.
Thereafter the appe:Jant applied to the
High Court for granting a certificate of fitness for leave to appeal to
this Court and the same having been granted the appeal has now been
placed before us for hearing.
The respondent reiterated his contentions before us and submitted
that s. 7 ( 1) of the Act had no applicat'on to the facts of the present
case, and therefore, the share of Smt. Alladi was not exigible to estate
ducy.
The appellant, however, submitted that a Hindu widow had a
coparcenary interest in the joint family properties which could be valued on the basis of the factors enumerated in s. 39 of the Act, the High
Court was in error in holding that the interest of Smt. Alladi was not
capable of any valuation.
The appellant, therefore, submitted that
the High Court had not correctly appreciated the legal nature and
character of the interest of the Hindu widow conferred on her by virtue
of the Hindu Women's Rights to Property Act, 1937.
In our opinion the answer to the problem would naturally lie in a
correct interpretation of ss. 7(1) & (2) of the Act as also on a true
construction of s. 3 (2) of the Hindu Women's Rights to Property
Act, 1937 as amended by Act 11 of 1938. It is true that while this
Court has had occasions to interpret the provisions of the
Hindu
Women's Rights to Property Act, 1937-hereafter referred to as 'the
Act of 1937'-on several occasions, yet the exact point which arises in
this case has not yet been determined by this Court. In ordeic
to
understand the implications of the arguments advanced by counsel for
the parties before us. it may be necessary to extract the relevant provisions of the Act as also of the Act of 1937. Section 7 sub-ss. (I) &
(2) of the Act run thus :
"7. Interests ceasing on death,-
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(!) Subject to the provisions of this section, property in
which the deceased or any other person had an interest ceasin!! on the death of the deceased shall be deemed to pass on
the deceased's death to the extent to which a benefit accrues
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(1) (1957) A. C. 513-34 I. T. R. (E.D.) 20
{2) (1968) A.C5·53-70 I.T.R. 663 (H. L.)
SUPREME COURT REPORTS
[1977] 3 S.C.R,
A
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 Jaw.
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(2) If a member of a Hindu coparcenary governed by
the Mitakshara school of law dies, then the provisions of
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su!Hection ( 1) shall apply with respect to the interest of
the deceased in the coparcenary property only :-
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(a) if the deceased had completed his eighteenth year at
the time of his death, or
(b) where he had not completed his eighteenth year at
the time of his death, if his father or other male ascendant in the male line was not a coparcener of the
same family at the time of his death."
It would be seen that s. 7 ( 1) consist of two parts-the first part refers
to the interest of the deceased which ceases on his death and accord-
. iil~ to this part two conditions are necessary before there is a passing
of the interest-(!) that there mnst be a cesser of the interest by
virtue of the death of the deceased; and (2) that as a result of such
cesser a benefit accrues or arises.
The second part of sub-s. ( 1 )
contains an inclusive category which brings within the fold of sub-s.
( 1) a coparcenary interest in the joint family property of a Hindu
family governed by the Mitakshara. Marumakkattayam or Aliyasantana
Jaw.
In the instant case, we are mainly concerned with the Mitakshara Jaw.
We might dispose of a short argument advanced by Mr.
S. T. Desai in support of the appeal on this question.
It was submitted that the words "governed by the Matakshara, Marumakkattayam or A/iyasantana law" clearly show that the coparcenary interest
. has been used in a wide sense and cannot be restricted to the strict
coparcenary interest known to the M itakshara law alone. In the
view which we take in this case, however, it is not at all necessary to
go into this point.
The main question for determination is as to
whether the interest acquired by a Hindu widow under the Act of
1937 can be said to be a coparcenary interest in the legal sense of the
term.
Once a Hindu widow is held to have a coparcenary interest,
then there would be no difficulty in treating her as a member of the
Hindu coparcenary, in which case her interest could be easily valued
according to the relevant provision of s. 39 of the Act which runs
thus:
"39. (!) 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 a 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
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been a partition immediately before his death."
In order to understand the content and character of the interest which
a Hindu widow gets by virtue of the statutory provisions contained in
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CONTROLLER ESTATE DUTY v. ALLADI KUPPUSWAMY (Faziil Ali,!.) 72 7
the Act of 1937 there can be no doubt that prior to the passing of
the Act of 1937 a Hindu woman had no right or interest at all in a
Hindu coparcenary.
She was neither a coparcener nor a member of
the coparcenary nor did she have any interest in it, except the right to
get maintenance.
She also had no right to demand partition of the
coparcenary property after the death of her husband.
The Act of
1937 introduced broad and important changes by bettering the rights
of a Hindu widow and conferring on her the same interest as possessed by her husband.
Sub-sections (2) and (3) of s. 3 of the Act of
1937 run thus :
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"(2) When a Hindu governed by any school of Hindu
law other than the Dayabhaga school or by customary law
dies having at the time of his death an interest in a Hindu
joint family property, his widow shall, subject to the proviC
sions of sub-section (3), have in the property the same
interest as he himself had."
,
"(3)Any interest devolving on a Hindu widow
under
the provisions of this section shall be the limited interest
known as a Hindu Woman's estate, provided however that
she shall have the same right of claiming partition as a male
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owner.
The words "the same interest as he himself had" in sub s, (2) of s, 3
of the Act of 1937 clearly indicate that the statute gave effect to the
well settled doctrine of Hindu Shastric Law that the persona of the
husband after his death continues through his wife who is the surviving
half of the husband and the husband continues to live through the
widow so long as the widow is alive. It was this concept of the Hindu
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Law which was sought to be recognised and given effect to by the
Act of 193 7. In these circumstances, therefore, when the Legislature
used the expression "the same interest as he himself had" it would
include all the bundle of rights possessed by the husband which would
devolve on the wife and if there were to be any !imitations on thooc
rights they were spelt out by sub-s. (3) itself, namely, that while the
Hindu widow would have the same right and interest as her husband,
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her interest would only be the limited interest known as a
Hindu
Woman's estate. Sub-section (2) of s. 3 of the Act of 1937 further
conferred on the widow the right to demand partition and on partition
she was entitled to get the same share as her husband. Thus the position appears to be that a Hindu widow was introduced for the first
time into the Hindu coparcenary having the same rights as her husband
and became as it were a member of the Hindu coparcenary with two
G
qualifications, viz., ( 1) that she had only a limited interest; and (2)
that she could not be a coparcener because having regard to the nature
of her entry into the family after marriage with her husband there was
no question of her getting interest in the Hindu coparcenary by birth
which is -me of the most important incidents of a Hindu coparcenary.
All the other rights of a coparcener were duly conferred on her by the
Act of 1937.
,
.
H
Dwelling on the conten{ and import of the nature of the interest
<lf a Hindu widow this Court pointed out in laisri Sahu v. Rajdewan
B.
c
D
F
G
H
728
SUPREME COURT REPORTS
[1977) 3 S.C.R.
Dubey & Others(') that on the death of her husband the. properties
vested in the widow and she fully represented the estate.
In this connection, this Court made the following observations :
"When a widow succeeds as heir to her husband,
the
ownership in the properties, both legal and beneficial, vests
in her.
She fully represents the estate, the interest of the
reversioners therein being only spes succession's. The widow
is entitled to the full beneficial enjoyment of the estate and
is not accountable to any one. It is true that she cannot alienate the properties unless it be for necessity or for benefit to
the estate, but this restriction on her powers is not one imposed for _the benefit of revers_ioners but is an incident of the
estate as known to Hindu law."
Similarly in a later case in Potti Lakshmi Perumallu
v.
Patti
KrisJ,navenamma(2 ) this Court reiterated that a Hindu widow was the
surviving half of her husband and so long as she was alive the husband
continued to live in her. This Court observed as follows :
''The decisions also recognise that though the
widow
does not, by virtue of the interest given to her by the new
law become a coparcener she being entitled to claim partition
of the joint family property is in the same position in which
her
deceased husband would have been in the matter of
exercise of that right.
That is to say, according to these
decisions her interest is a fluctuating one and is liable to incre.ase or decrease according as there are accretions to or
diminutions of the property. In our opinion these decisions
l~y down the law correctJy."
lt may be pertinent to note that in the aforesaid case the Court was
wnsidering tb.e nature of the interest which a widow derived by virtue
Qf the statutory substitution contained in s.3(2) of the Act of 1937.
It was ;),lsp {lOinted out that like other coparceners of a Hindu copar-
~
lhe W.tcr"!lt of a widow until separated by a partition continu~d
lo 1:icl a fiui;iuating o~ which was liable to increase or decrease with
th~ .dea(}js pr ;idditions in the family.
1\1 $Ptm~n lsser v. Smt. Subujpari & others(') this Court pointed
.O!ll fP#t lhti intere~ col)ferred on a Hindu widow arose by statutory
:stitutiPn '"1<! t)ie Al;t of 1937 introduced changes which were so
alien w thl.> stmctun: of a Hindu coparcenary. In this connection
Cp\lft omerved llS f.olJows :
"Tlu: Act in inv~ting the widow of a member of a coparc.enary with (l)e interest which the member had at the time
pf his de11th has int;oduced changes which are alien to the
(1) [1962] 2 S.C.R. 558, 564-565.
(2) [19~5] I S.C.R. 26, 33.
(3) [196711 s.~.R. 7.
\
'
'
t
CONTROLLER ESTATE DUTY v. ALLADI KUPrUSWAMY (Fa.<al Ali, J.) 729
structure of a coparcenary. The interest of a widow arises
not by inheritance nor by survivorship, but by statutory substitution :
•
•
•
*
A Hindu coparcenary under the M itakshara school consisbs of males alone : it includes only those members who
acquire by birth or adoption interest in the coparcenary property. The essence of CDparcenary property is unity ot
ownership which is vested in the whole body of coparceners.
While it remains joint, no individual member can predicate
of the undivided property that he has a definite share therein.
The jnterest of each coparcener is fluctuating, capable
of
being enlarged by deaths, and liable to be diminished by the
birth of sons to coparceners : it is only on partition that the
coparcener can claim that he has become entitled to a definite
share. The two principal incidents of coparcenary property
are : that the interest of coparceners devolves by survivorship and not by inheritance; and that the male issue of a
coparcener acquires an interest in the coparcenary property
by birth, not as representing his father but in his own independent right acquired by birth."
As pointed out above the essence of coparcenary property is the unity
of ownership which is vested in the whole body of coparceners and
the two principal incidents of coparcenary property are that the interest
A
•
B
c
D
of coparceners devolves by survivorship and not by inheritance and
E
that the male issue of a coparcener acquires an interest in the coparcenary property by birth and not as representing his father.
After
having described the incidents of a Hindu coparcenary, the Court proceeded to observe as follows :
"By the Act (Act of 1937) certain antithetical concepts
are sought to be reconciled.
A widow of a coparcener is
F
invested by the Act with the same interest which her husband
had at the time of his death in the property of the coparcenary.
She is thereby introduced into the coparcenary, and
between the surviving coparceners of her husband and the
widow so introduced, there arises community of interest and
unity of possession. But the widow does not on that account
become a coparcener : though invested with the same interest
G
which her husband had in the property she does not acquire
the right which her husband could have exercised over .the
interest of the other coparceners. Because of statutory substitution of her interest in the coparcenary property in place
Qf her husband, the right which the other coparceners had
under the Hindu law of the Mitakshara school of taking that
interest by the rule of survivorship remains suspended so
H
long as that estate enures.
•
•
*
She has still power to make her interest definite by making
a demand for partition, as a male owner may. If the widow
A
B
c
D
E
F
G
H
730
SUPREME COURT REPORTS
[1977] 3 s.c.R.
after being introduced into family to which her
husband
belonged does not seek partition, on the termination of her
estate her interest will merge into the coparcenary property .. "
Again this Court did not approve of the assumption made by some
Courts that the right vested in the widow was liable to revert to the
coparcenary, even where, on demand for partition, it became separated
from the coparcenary property, and in this connection this Court observed as follows :
"The assumption that though the right vested in the widow
by the Act is a right of property which may on demand for
partition become separated from the coparcenary property,
it is still liable to revert to the coparcenary on the determination of the widow's estate, does not give full effect to the
statutory conferment upon the widow of the same right of
claiming partition as a male owner".
Finally this Court approved of certain observarons made by the
Madras High Court in Parappagari Parappa alias Hammanthappa and
Another v. Parappagari Nagamma and others(') where Subba Rao J.,
as he then was, made the following observations :
"She could ask for partition and separate possession of
her husband's share.
In case she asked for partition, her
husband's interest should be worked out having regard to
the circumstances obtaining in the family on the date of partition. If she divided herself from the other members of the
family during her lifetime, on her demise the succession
would be traced to her husband on the basis that the property
was · his separate property. If there was no severance,
it .
would devolve by survivorship to the other members of the
joint Hindu family : "
It is, therefqre, manifest from the aforesaid decision that if the widow
had not chosen to .exercise her right of partition, 'there is no severance
of the Hindu coparcenary and on her death the interest of the widow
merges in the coparcenary property or lapses to the other coparceners.
As already indicated above, this Court in Satrughan v. Smt. Sabujpari
& others (supra) had taken the same view and had confirmed .the ·u;vision Bench decision of the Patna High Court in Smt. Sabujpari and
another v. Satrughan Isser and others(2), where the Patna High Court
after considering the entire law on the subject, observed thus :
"After having considered the various authorities and the
various aspects of the case, my conclusions are that, under
the Provisions of the Act a widow orf a deceased coparcenef
is placed in same p9sition as the deceased coparcener was,
for the reason of the fictiol). that half .the body of the deceased
husband survived in the widow; that, like her husband; the
widow also is entitled to effect severance of the joint status
(I) I.L.R. (1954) Mad. 183.
(2) A.T.R. 1958 Pat. 405, 410.
;
:CIJJif'FRoLLER ESTATE DUTY v. ALLADI KUPPUSWAMY (Fazal Ali, J.) 731
of the family by an nneqnivocal expression of intention to
separate;
*
*
•
*
that
in case the widow does not exercise her right of partition
and dies without expressing any intention to separate, the
interest of the husband, which she enjoyed, goes by survivorship to the other members of the joint family."
We find ourselves in complete agreement with the observations made
by the Patna High Court to which one of ns (Untwalia, J., as he then
was) was a party. The view taken by the Patna High Court in the
aforesaid case was later on approved by a Fnll Bench of the Patna
High Court in Mst. Khatrani Kuer v. Smt. Tapeshwari Kuer(').
'
In State Bank of India v. Ghamandi Ram (dead) through Shri
A
B
Gurbux Rai(2 ), this Court, while dealing with the incidents of Hindu
C
coparcenary, observed as follows :
"According to the Mitakshara School of Hindu Law all
the property of a Hindu joint family is held in collective
ownership by all the coparceners in a quasi-corporate capacity.
*
•
*
The incidents of coparcenership
under the Mitakshara law are : first, the lineal
D
male descendants of a person np to the third generation,
acquire on birth ownership in the ancestral
properties is
common; secondly, that no alienation of the property any
time work ant their rights by asking for partition; thirdly,
that till partition each member has got ownership extending
over the entire property, conjointly with the rest; fourthly,
·that as a result of snch co-ownership the possession and
E
enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity,
without the concurrence of the coparceners, and sixthly, that
the interest of a deceased member lapses on his death to the
snrvivon;. A coparcenary under the Mitakshara School is a
creature of law and cannot arise by act of parties except in
~o far that on adoption the adopted son becomes a coparF
cener with his adoptive father as regards the ancestral pr°"
perties of the latter."
Thus analysing the ratio of a aforesaid case regarding the incidents of
a .. Hindu coparcenary it would appear that a Hindu coparcenary has
s~ -eiisential characteristics, namely, (1) that the lineal male descendant& np to the third generation acquire an independent right of ownerG
ship by birth and not as representing their ancestors; (2) that the
members of the coparcenary have the right to work ont their rights
l!Y demanding partition; (3) that until partition, each member has
gO,t ownership extending over the entire property conjointly with the
res( and so long as no partition takes place, it is difficult for any coperce.ii~t . to predicate the share which he might receive; ( 4) that as a
r.es\ilt of snch co-ownership the possession and enjoyment of the property
H
i~ c.on'unon; (5) that there can be no alienation of the property without
.....!..·, '
'
<: i) (1). AI.R. 1964 Pat 261.
·: '(2} .. (1969] 3 S.C.R. 681, 686.
A
B
c
D
E
F
G
H
732
SUPREME COURT REPQltfS
(1977] 3 S.<;.ll..
the concurrence of the other coparceners unless it be for legal necessity;
and (6) that the interest of a deceased member lapses on his death
and merges in the coparcenary property.
Applying these tests to the
interest of a Hindu widow who has been introduced into a coparcenary
by virtue of the Act of 1937, we find that, excepting condition No.
( 1), all other conditions are fully satisfied in case of a Hindu widow
succeeding to the interest of her husband in a Hindu coparcenary. In
other words, after her husband's death the Hindu widow under the
Act of 1937 has got the right to demand partition, she cannot predicate the exact share which she might receive until partition iJS made,
her dominion extends to the entire property conjointly with the other
members of the coparcenary. her possession and enjoyment is common,
the property cannot be alienated without concurrence of all the members of the family, except for legal necessity, and like other coparceners
she has a fluctuating interest in the property which may be mcreased
or decreased by deaths or additions in the family. It is manifest that
she cannot fulfil the first condition, because she enters the coparcenary
long after she is born and after she is married to her husband and
acquires his interest on his death. Thus, short of the first condition,
she possesses all the necessary indicia of a coparcenary interest. The
fact that before the Act of 1956, she had the characteristic of a widowestate in her interest in the property does not detract any the less from
this position. It must follow as a logical corollary that though a Hindu
widow cannot be a coparcener, she. has coparc.enary interest and she is
also a member of a coparcenary by virtue of the rights conferred -On
her under the Act of 1937.
There is yet another important aspect of the matter which has to
be considered. At the time when the Estate Duty Act was passed in
1953, the Legislature was fully aware of the statutory interest conferred
on a widow by virtue of the Act of 1937 and the incidents thereof.
In these circumstances it is not reasonable to infer that the Legislature
could have intended that though a Hindu widow has got the same
interest as her husband in the Hindu coparcenary and has also the
right to demand partition and her interest which is a fluctuating one
would lapse to the other coparceners in case of her death without
seeking partition in the same manner as that of other coparceners, yet
it should be exempt from estate duty.
The sheet-anchor of the argument of the respondent was the Prizy·
Council decision in Arunachalam Chettiar's case (supra). In the firsf
place, the facts of that case are clearly distinguishable from the facts·
of the present case. In that case, the Hindu undivided family consisted
of father, son and some female members.
According to the
Privy
Counci~, the females were merely entitled to maintenance. The females
there could not have any interest in the coparcenary nor could ·any
such argument be advanced because there was no statute similar to the
Act of 1937.
Moreover, in the Estate Duty Ordinance which was
being construed by ·the Privy Council there was neither any provision
like the inclusive part of sub-s. ( 1) and sub-s. (2) of s. 7 nor any
provision similar to s. 39 of the Act. In these circumstances, we do
not see how the Privy Council decision in Arunachalam Chattiar'.< case
CONTROLLER ESTATE DUTY v. ALLAl>I KUPPUSWAMI (Fazal Ali,].) 733
(supra) can be called in aid to support the contention of the responA
dent. In the instant cooe, once it is held, as it must be, that Smt. Alladi
wail a member of the Hindu coparcenary, her interest was undoubtedly
a coparcenary interest which lapsed on her death and merged in:o
the coparcenary. It was also clearly capable of valuation, unlike the
position in Arunachalam Chettiar's case where the Privy Council was
construing a provision
similar to s. 40 of the Act, which, in our
opinion, has no application in the present case, it being covered by s.
B
39 of the Act. A fortiori the same observations apply to the case of
Gartside v. Inland Revenue Commissioners (supra).