CONTROLLER OF ESTATE DUTY Vs. SAHU S N

JUDGEMENT

(1.) THE Income-tax Appellate Tribunal (hereinafter referred to as " the Tribunal ") has referred the following question under Section 64(3) of the Estate Duty Act, 1953 (hereinafter referred to as "the Act"):

(2.) A few facts are necessary to be stated. Late Gopinath Sahu died on May 29, 1976. His wife and son belonged to a Hindu undivided family (" the HUF " for short). While alive, he had an interest in the joint family property. According to Section 39 of the Act, the value of such interest is equal to the share in the joint family property which would have been allotted to the deceased in a notional partition immediately before his death. The claim of the opposite party was that late Gopinath Sahu, in the case of a partition, would have been entitled only to 1/3rd share in the joint family property and his wife and son would have been entitled to 1/3rd share each. The Assistant Controller of Estate Duty took the view that the notional share of late Gopinath Sahu would have been 1/2 and not 1/3rd. Therefore, he included the value of 1/2 of the joint family in the estate of the deceased for the purpose of assessment to estate duty, On appeal, the Appellate Assistant Commissioner affirmed the said view. A second appeal was carried to the Tribunal. It was urged before it that the wife of late Gopinath Sahu not being a coparcener was not entitled to a share in the event of a partition between the coparceners. Therefore, the views expressed by the lower forums were correct. But the Tribunal differed from the views and considering the provisions of the Hindu Succession Act, 1956, came to hold that although a wife cannot demand a partition, yet, if a partition does take place amongst her husband and sons, she would be entitled to receive a share equal to that of a son and to hold and enjoy the same separately. The wife thus is a statutory heir specified in the First Schedule, although normally she is not a coparcener of a Hindu Mitakshara joint family. Consequently, it held that the joint family property had to be divided into three equal shares and the 1/3rd share that would have been allotted to the late Gopinath Sahu in the event of a partition should have been taken into consideration by the lower forums for assessment to estate duty.