KASHINATH PARASHRAM GADGIL Vs. GOURABAI MALLAPPA WARAD

JUDGEMENT

(1.) Owing to the position taken up by Banks and Limited liability Companies difficulties were experienced in cases in which joint Hindu families had invested part of their joint funds in the shares of such Banks and Companies. Shares had to stand in the name of one member of the family. He might or might not be the general manager. But, on his death, these portions of the joint family wealth could not be realized by the survivors without either getting probate of a will or letters of administration to the deceased member in whose name they stood. This has led in practice to a great deal of theoretical absurdity. Wills admittedly made by members of a joint Hindu family purporting to dispose, as of self-acquired property, of joint family property in favour of the survivors, have been solemnly propounded. Probate has seemingly been given as a matter of course. In this way the funds of the joint family invested in the shares of Companies have been obtained by the survivors. But the question early arose whether survivors thus seeking to obtain their own property under the fiction of a devise, should be called on to pay the full duty. The Court-Fees Act exempts from payment of duty any such part of the estate of the deceased testator or person to whom letters of administration are sought, as could be shown to have been held by him as bare trustee without himself having any beneficial interest therein or any power of beneficial disposition. In the class of cases I have described executors or survivors (calling themselves here next of kin) have contended, and on the whole, successfully, that the portion of joint family property, they are thus seeking to obtain, falls within the exemption. A bench of this High Court appears to have held in the case of Collector of Kaira v. Chunilal (1904) 6 Bom. L.R. 652; I.L.R. 29 Bom. 161 that a member of a joint Hindu family had no beneficial interest in any part of the joint estate, and, therefore, that survivors propounding his will in order to be able to obtain shares standing in his name, were entitled to claim exemption on the ground that the deceased in his life-time had had no beneficial interest in the said shares, etc. This part of the judgment is not reasoned, but is professedly based on the decision in the case of In the Goods of Pokurmull Augurwallah (1896) I.L.R. 23 Cal. 980 which Jenkins C.J. said he thought had been rightly decided. If that decision implies the general proposition (which it appears to imply) that no member of a joint Hindu family governed by the Mitakshara has any beneficial interest, during his life, in any part of the joint family property, we feel unable to assent to it. And if the decision does not imply that proposition, it appears to rest on no reason at all.

(2.) The case has come before us in this wise. There was admittedly a joint Hindu family consisting of a father and a minor son. The father made a will in effect bequeathing the whole property to his minor son. No one has disputed that the family was joint and that the property covered by the will was joint family property. On the authority of The Collector of Kaira v. Chunilal (1904) 6 Bom. L.R. 652; I.L.R. 29 Bom. 161 the executors require us to say that the deceased testator had no beneficial interest in any part of the property devised, and, therefore, that they are exempt from the payment of any duty. In our opinion, this contention is unsustainable.

(3.) Those who propound a will and claim under it can hardly be heard to say that the testator had no powers of beneficial disposition. When ex concessis, the alleged testator was a member of a joint Hindu family and the whole property covered by the will was joint family property one would have thought that there was no legal foundation for the will, no need of probate. It is not a satisfactory answer, that in probate proceedings the Court has no further concern in the matter than to see whether in fact the will was made, and whether in all other respects it was a valid will. That is of course true, but it does not exhaust the question. If those seeking probate mean to include the whole of the property devised under the exemption clauses, it does become the duty of the Court to enquire so far, at least, as to satisfy itself that the conditions upon which exemption is granted have been fulfilled. Where, in the circumstances mentioned, the whole property is given to the sole survivor, who, again ex concessis, would take it in his own right, will or no will, the will propounded is, on the face of it, a mere nullity to which no effect could be given. Had it been necessitated owing to the testator having invested the joint family funds in the shares of Banks and other Companies, then it appears to us that however anomalous the position, which is thus reached, may be, it cannot be contended that since a will is necessary under which the nominal testator hands on this part of the joint family property to the survivor, he had not at the date of his death any beneficial interest in that property, and was never more than a bare trustee of it for the survivor or survivors. The reason for the exemption is clear. But neither that reason nor any consideration of policy, which occurs to us, would warrant its extension this length. Although the devisee under the will takes but what is his own, if he needs a will to get it we do not see why he should not pay the ordinary duty. He cannot be allowed to blow hot and cold and say in one breath that a will was and was not necessary. It is only by adopting the general proposition, which we find ourselves entirely unable to adopt, that no member of an undivided Hindu family has any beneficial interest in any part of the joint family property during his life-time, that the decision upon which the cross-appellants here rely could be supported. Were it merely a question of policy we should be disposed to take an exactly opposite line, and say that all Hindus taking by survivorship ought to pay duty on the value of the estate so taken, just as all other subjects not governed by the Hindu law of the joint family have to pay duty to the State on property devised or corning to them as heirs.