TaxTMI 
TaxTMI 
2003 (5) TMI 14
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....ceased in the Hindu undivided family and came to the conclusion that 1/5th share of the deceased in the Hindu undivided family was of the value of Rs. 3,23,541. The interest of three lineal descendants of the deceased was valued at Rs. 9,70,623 and this exercise was done for aggregation as contemplated by the provisions of section 34(1) of the Act under which for the purpose of determining the rate of the estate duty to be paid on any property passing on the death of the deceased, all property so passing, and, where it consisted of a coparcenary interest, also the interests in the joint family property of all the lineal descendants of the deceased member were required to be aggregated so as to form one estate and the estate duty was to be levied thereon at the rate applicable in respect of the principal value thereof. In the appeal, the Controller of Estate Duty, in para. 6 of his order, found that the Assistant Controller of Estate Duty was justified in including the share of the lineal descendants in the principal value of the Hindu undivided family estate. The contention that the share of the wives of the lineal descendants should have been deducted from the share of the lineal....
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....ision for the purpose of determining the rate of estate duty to be paid on any property passing on the death of the deceased, though interest of all coparceners other than the deceased in the joint family property of a Hindu family falls within the expression "property exempt from estate duty", due to the effect of the provision of sub-section (2) of section 34 read with Explanation (iii) thereof. For the purpose of working out the rate under section 34(1)(c) of the Act, the interest in the joint family property of all the lineal descendants of the deceased member is to be aggregated with all the property passing on the death of the deceased. The said provision of sub-section (1)(c) is not concerned with the devolution of the interest of the deceased in the joint family property which would devolve as per the provisions of section 6 of the Hindu Succession Act, 1956. The interest of a male Hindu in coparcenary property shall devolve by survivorship upon the surviving members of the coparcenary, provided that, if the deceased had left behind him a surviving female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female....
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....scendants would obviously not be lineal descendants of the deceased. The moot question, however, is whether the wife of one of the three sons of the deceased who was married and in respect of whom the question has arisen, had any share in the property of the Hindu undivided family on the notional partition resulting due to death of the father. The only property that can be divided on partition is coparcenary property. The joint family or coparcenary property is that in which every coparcener has a joint interest. In State Bank of India v. Ghamandi Ram, AIR 1969 SC 1330 the Supreme Court observed that coparcenary property is held in collective ownership by all the coparceners in a quasi-corporate capacity. The incidents of a coparcenary are: (i) the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; (ii) that such descendants can at any time work out their rights by asking for partition; (iii) that till partition each member has got ownership extending over the entire property conjointly with the rest; (iv) that as a result of such co-ownership the possession and enjoyment of the property is commo....
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....rectly computed the value of the interest of three lineal descendants for the purpose of aggregation under section 34(1)(c) and aggregated the value of that share with the value of 1/5th share of the deceased and thereby worked out the principal value under section 34(1)(c) of the Act. The Revenue has relied on the decision of the Calcutta High Court in the case of Satyanarayan Saraf v. Assistant Controller [1978] 111 ITR 432 in which it was held that section 39 of the Act contemplates a notional partition of the joint family property immediately before the death of the deceased in order to ascertain the principal value and as a notional partition has to be resorted to, full effect should be given to the principles of Hindu law relating to partition of property. It was held that if any person other than a lineal descendant is c entitled to a share such share should be allotted to him and after such allotment the shares of the lineal descendants should be ascertained. In that case the karta of a Hindu undivided family, Hanuman Prasad Saraf, died in 1961, leaving his wife, son, son's wife and grandson in the family. The court held that in order to ascertain the shares of the lineal ....
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....ion which is deemed to have taken place immediately before the death of the deceased coparcener for the purpose of the Act. Such partition should be viewed as a separation of the deceased coparcener from the other coparceners and not a partition amongst all the coparceners, unless otherwise intended by them on the demise of the coparcener. On a partition between father and son each takes a share equal to that of the father. Thus, if a joint family consists of a father and three sons, the property will be divided into four parts, each of the four members taking one-fourth and each branch taking "per stripes", i.e., according to the stock. As noted above, if the partition takes place between her husband and his son, the wife is entitled to receive a share equal to that of son and no female, except those mentioned in paragraphs 315 (wife), 315A (widow), 316 (widow-mother), 317 (grandmother), is entitled to a share on partition. Therefore, when there is a partition between the father and his sons, the mother would be the female heir entitled to receive a share equal to that of their son, and son's wife does not come into the picture at all for claiming any share in such a partition. S....