TaxTMI 
TaxTMI 
1976 (4) TMI 10
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.... time in 1920. Madhusudanlalji had left behind him his wife, Tati, who was alive at the time of Vraj Priya's death and who we are informed is alive even to-day. At the time of Vraj Priya's death, Ranchhodlalji's son, Vrajraiji, was alive and he is the accountable person before us. Vrajraiji's son, Lalan, who was born on November 12, 1959, was also alive at the time of Vraj Priya's death. Thus, it is obvious that at the time of his death Ranchhodlalji was the karta of the Hindu undivided family of which the members were his son, Vrajraiji, and his wife, Vraj Priya. Prior to her death, Vraj Priya had not asked for any partition though she was entitled to do so by virtue of the right conferred upon her by the Hindu Women's Rights to Property Act, 1937 (hereinafter referred to as " the 1937 Act "), and the Hindu Succession Act. The question was as to what was the quantum of her share in the joint family properties. The Assistant Controller of Estate Duty computed the dutiable estate of the deceased by including one-half of the property owned by the family at the time of her death. This one-half share worked out to Rs. 6,26,012. Against the decision of the Assistant Controller of Estate....
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....be held by her as full owner thereof and not as a limited owner." It has been held by the Supreme Court in Kotturuswami v. Veeravva, AIR 1959 SC 577, that the word " possessed " is used in section 14 in a broad and in its widest connotation and it means " the state of owning or having in one's hand or power ". It need not be actual physical possession or personal occupation of the property by the female but may be possession in law. It may either be actual or constructive or in any form recognised by law. Hence the right which was conferred on the widow in a Mitakshara Hindu family by section 3 of the 1937 Act became enlarged by the Hindu Succession Act into a full estate and she became the absolute owner of that share in the Hindu undivided family. In Suketu Jayantilal Shah v. Controller of Estate Duty [1975] 100 ITR 439 (Guj), this court has held that under section 3(2) of the 1937Act, the widow of a member of a Hindu joint family is put in place of her husband and the husband's interest in the joint family property, though indefinite, would vest immediately upon his death in the widow. The widow who acquired the interest of her deceased husband under section 3(2) of the 19....
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....ould continue to exist as before subject only to her statutory rights and that the rights of the other members of the family would be worked out on the basis that the husband died on the date when the widow passed away, the right to survivorship being suspended till then. Further, according to the Full Bench, a widow can under the Act claim a share not only in the property owned and by the family at the time of his death but also in the accretions arising therefrom, irrespective of the character of the accretions. The various decisions to which we have adverted rest on the view that the interest which the law has conferred upon the widow is a new kind of interest though in character it is what is commonly known as the Hindu widow's estate. This interest is in substitution of her right under the pre-existing Hindu law to claim maintenance. 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 those d....
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....y 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." Then in paragraph 7 Shah J. observed: " By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is 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 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 of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest b....
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....titled to one-half share and Vrajraiji and Lalan between themselves would be entitled to the other half share. It is obvious that so far as Vraj Priya was concerned, under ordinary Hindu law she would be entitled to a share on partition in lieu of her right to maintenance. It is now clear after the division of the Supreme Court referred to above, that the right which has been given to a Hindu woman under the 1937 Act is also in lieu of partition. Therefore, if a notional partition takes place shortly before Vraj Priya's death, she could not be allowed a share twice over, namely, once under ordinary Hindu law and again under the 1937 Act. It is, therefore, clear that at the time of this notional partition a short time before Vraj Priya's death, she would not be entitled to any share except that which she gets under the 1937 Act. The question then arises whether Tati, mother of Ranchhodlalji, would be entitled to any share. Regarding the share which is to be allotted to a mother on a partition between her son and grandsons the position has been thus stated in Sir Dinshaw Mulla's commentary on Hindu Law, fourteenth edition, at page 405, article 317 : " (1) A paternal grandmot....
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....ver, in Jamnabai v. Vasudeo Sagarmal [1930] ILR 54 Bom 417 AIR 1930 Bom 302, it was held that under the Mitakshara, on partition between a father and his son, the grandmother is not entitled to a share. The emphasis which was laid by Kemp, Acting Chief Justice, was that when a partition takes place between a father and his son, the father's mother is excluded as she is not the sonless wife of his father, that is, of the husband of that widowed mother and the text of Vyasa was distinguished in this manner and so was the decision of the Bombay High Court in Vithal Ramkrishna v. Prahalad Ramkrishna [1915] 17 Bom LR 361. The Full Bench of the Allahabad High Court in Sheo Narain v. Janki Prasad [1912] ILR 34 All 505 was followed in this case. Another Division Bench of the Bombay High Court in Jotiram v. Ramchandra, AIR 1941 Bom 382, also took the same view. The Division Bench there held that in order to entitle a grandmother to a share the texts postulate a division between the direct descendants inter se of her deceased husband provided that the dividing parties are not related to one another as father and son. Where the division takes place between the grandson on the one hand and ....