Appeal No 200371 From the Judgment and Order dated 5 12 1969 of the Madras High Court in Tax Case No 40 of 1965 ST Desai PL Juneja and RN Sachthey for the appellant
G Venkatarama Sastry KR Ramamani and J Ramamurthi for the respondent
The Judgment of the Court was delivered by FAZAL ALI J
This appeal by certificate is directed against a Full Bench judgment of the Madras High Court dated December 5 1969 Alladi Kuppuswami vs Controller of Estate Duty Madras1 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 sections 71  2 as also 39 of the 1 7 707SCI77 724 Estate Duty Act 1953 hereinafter referred to as the Act 
In order to decide the question of law arising in the ap peal it may be necessary to set out briefly the facts of the case
Sri Alladi Krishnaswami Iyer died some timebefore the passing of the  but during his life time he had settled certain properties absolutely on his wife Smt
Alladi Venkatakshmamma to be referred in short as Smt
Alladi  and he had also declared certain other properties to from part of the joint family properties
Sri Alladi Krishnaswami Iyer hereafter to be referred to as Shri 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
Alladi died on January 5 1956 a few months before the passing of the and the Assistant Controller of Estate Duty valued her estate at a total amount ot Rs 725527 including a sum of Rs 202271 being the value of her the share in the joint family properties
The dispute in the present case centres round the inclusion of the aforesaid sum of Rs 202271 
The Revenue assessed the estate duty on the footing that as Smt
Alladi was a member of the Hindu coparcenary her interest in the joint family proper ties passed on her death to the other three sons and the value of this interest being 14th the heirs would be liable to pay estate duty on the value of the 14th share assessed at Rs 202271 
The accountable persons raised several contentions before the Revenue including the question as to whether or not the Act would apply to agricultural lands as also whether interest on certain fixed deposits in Govern ment securities would be assessable under the Act
It appears however that before the High Court the respondent pressed only the question relating to the inclusion of the value of 14th share of Smt
Alladi valued at Rs 202271 
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 section 7 sub section
1 had no application
The plea taken by the respondent did not find favour with the Central Board of Revenue which upheld the order of the Assistant Controller of Estate Duty
Thereupon the respondent moved the Board of Revenue to make a reference to the High Court of Madras for decision of the questions of law involved in the case
The Board ac cordingly referred the following questions to the High Court 1
Whether on the facts and in the circumstances of the case one fourth share of the deceased in the joint family properties to which she was entitled under section 3 of the Hindu Women s Rights to Property Act 1937 was correctly included in her estate as property deemed to pass on her death under section 7 of the  2
Whether the  in so far as it seeks to levy duty on agricultur al lands is ultra vires of the legislative powers of the Union Legislature  725 3
Whether on the facts and in the circumstances of the case the accrued inter est on fixed deposits and Government securi ties up to the date of death of the deceased was correctly included in her estate under section 342 of the  Although three questions had been referred to the High Court by the Board at the hearing of the appeal the respondent gave up questions Nos 2 and 3 and confined his arguments only to question No 1 which falls for determination in this case
The High Court relying mainly on the decisions of the Privy Council in Attorney General of Ceylon vs Arunacha lam Chettiar1 and Gartside vs Inland Revenue  Commission ers2 came to the conclusion that the interest of Smt
Alladi was not a coparcenary interest which could have passed under section 7 1 of the Act and as the said interest was incapable of valuation was not exigible to estate duty
Thereafter the appellant 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 section 71 of the Act had no application to the facts of the present case and therefore the share of Smt
Alladi was not exigible to estate duty
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 section 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 71  2 of the Act as also on a true construction of section 32 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 order 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 sections
1  2 of the Act run thus 7
Interests ceasing on death 1 Subject to the provisions of this section property in which the deceased or any other person had an interest ceasing on the death of the deceased shall be deemed to pass on the deceased s death to the extent to which a benefit accrues ITR ED 20 2 1968 AC553 70 ITR 663 II L 726 or arises by the cesser of such interest including in particular a coparcenary inter est in the joint family property of a Hindu family governed by the Mitakshara Marumakkat tayam or Aliyasantana law
2 If a member of a Hindu coparcenary governed by the Mitakshara school of law dies then the provisions of sub section 1 shall apply with respect to the interest of the deceased in the coparcenary property only  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 as cendant in the male line was not a coparcener of the same family at the time of his death
 It would be seen that section 71 consist of two parts the first part refers to the interest of the deceased which ceases on his death and according to this part two condi tions are necessary before there is a passing of the inter est 1 that there must 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 section
1 contains an inclusive category which brings within the fold of sub section
1 a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara Marumakkattayarn or Aliyasantana law
In the instant case we are mainly concerned with the Mitakshara law
We might dispose of a short argument ad vanced by Mr ST Desai in support of the appeal on this question
It was submitted that the words governed by the Matakshara Marumakkattayam or Aliyasan ana 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 Mitakshara law alone In the view which we take in this case however it is not at all neces sary to go into this point
The main question for determi nation 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 section 39 of the Act which runs thus 39
1 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 been a partition immediately before his death
 In order to understand the content and charac ter of the interest which a Hindu widow gets by virtue of the statutory provisions con tained in 727 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 copar cener 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 pos sessed by her husband
Sub sections 2 and 3 of section 3 of the Act of 1937 run thus 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 provisions of sub section 3 have in the property the same interest as he himself had 3Any 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 parti tion as a male owner
The words the same interest as he himself had in sub section 2 of section 3 of the Act of 1937 clearly indicate that the statute gave effect to the well settled doctrine of Hindu Shastric Law that the persons 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 Law which was sought to be recognised and given effect to by the Act of 1937
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 de volve on the wife and if there were to be any limitations on those rights they were spelt out by subs
3 itself name ly that while the Hindu widow would have the same right and interest as her husband her interest would only be the limited interest known as a Hindu Woman s estate
Sub section 2 of section 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 qualifications viz 1 that she had only a limited interest and 2that 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 copar cenary by birth which is one 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
Dwelling on the content and import of the nature of the interest of a Hindu widow this Court pointed out in Jaisri Sahu vs Rajdewan 728 Dubey  Others1 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 hus band 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 section 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 reversion ers but is an incident of the estate as known to Hindu law
 Similarly in a later case in Potti Lakshmi Perumallu vs Potti Krishnavenamma2 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 parti tion 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 increase or decrease according as there are accretions to or dimi nutions of the property
In our opinion these decisions lay down the law correctly
 It may be pertinent to note that in the aforesaid case the Court was considering the nature of the interest which a widow derived by virtue of the statutory substitution con tained in s32 of the Act of 1937
It was also pointed out that like other coparceners of a Hindu coparcenary the interest of a widow until separated by a partition continued a fluctuating one which was liable to increase case or decrease with the deaths or additions in the family
In Satrughan Isser vs Smt
Subujpari  Others3 this Court pointed out that the interest conferred on a Hindu widow arose by statutory substitution and the Act of 1937 introduced changes which were go far alien to the structure of a Hindu coparcenary
In this connection the Court observed as follows The Act in inventing the widow of a member of a coparcenary with the interest which the member had at the time of his death has introduced changes which are alien to the 1  564 565
2   33
3  729 structure of a coparcenary
The interest of a widow arises not by inheritance nor by survi vorship but by statutory substitution A Hindu coparcenary under the Mitakshara school consists of males alone it includes only those members who acquire by birth or adoption interest in the coparcenary property
The essence of coparcenary property is unity of ownership which is vested in the whole body of coparceners
While it remains joint no individual member can predicate of the undi vided property that he has a definite share therein
The interest 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 inheri tance and that the mate issue of a coparcener acquires an interest in the coparcenary property by birth not as representing his father but in his own independent right ac quired by birth As pointed out above the essence of coparce nary 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 of coparceners devolves by survivorship and not by inheri tance and that the male issue of a coparcener acquires an interest in the coparcenary property by birth and not as representing his father
Alter having described the incidents of a Hindu coparcenary the Court proceeded to observe as follows By the Act Act of 1937 certain anti thetical 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 surviv ing 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 copar cener 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 copareeners
Because of statutory substitu tion 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 by the rule of survivorship remains suspended so 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 730 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 as sumption made by some Courts that the fight vested in the widow was liable to revert to the coparcenary even where on demand for partition it became separated from the copar cenary 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 coparce nary 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 mate owner
Finally this Court approved of certain obser vations made by the Madras High Court in Parappagari Parappa alias Hammanthappa and Another vs Parappagari Nagamma and others1 where Subba Rao Jas he then was made the following observations She could ask for partition and sepa rate 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 therefore manifest from the aforesaid deci sion 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 vs Smt
Sabujpari  others supra had taken the same view and had con firmed the Division Bench decision of the Patna High Court in Smt
Sabujpari and another vs Satrughan Isser and others2 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 of a deceased coparcener is placed in same position as the deceased coparcener was for the reason of the fiction 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 2 AIR 1958 Pat 405 410 731 of the family by an unequivocal expression of intention 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 survivor ship 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 us 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 Full Bench of the Patna High Court in Mst
Khatrani Kuer vs Smt
Tapeshwari Kuer1
In State Bank of India vs Ghamandi Ram dead through Shri Gurbux Rai2 this Court while dealing with the incidents of Hindu 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 capa city
   The incidents of coparcenership under the Mitakshara law are first the lineal male descendants of a person up to the third generation acquire on birth ownership in the ancestral properties is common secondly that no alienation of the property
any time work out their rights by asking for partition thirdly that till partition each member has got ownership ex tending over the entire property conjointly with the rest fourthly that as a result of such co ownership the possession and 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 survivors
A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son be comes a coparcener with his adoptive father as regards the ancestral properties of the lat ter Thus analysing the ratio of a aforesaid case regarding the incidents of a Hindu coparcenary it would appear that a Hindu coparcenary has six essential characteristics namely 1 that the lineal male descendants up to the third genera tion acquire an independent right of ownership by birth and not as representing their ancestors 2 that the members of the coparcenary have the right to work out their rights by demanding partition 3 that until partition each member has got
ownership extending over the entire property con jointly with the
rest and so long as no partition takes place it is difficult for any copercener to predicate the share which he might receive 4 that as a result of such co ownership the possession and enjoyment of the property iS common 5 that there can be no alienation of the property without 1 AIR 1964 Pat 261
19691 3 SCR 681686
732 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 is made her dominion extends to the entire property conjointly with the other members of the coparcenary her possession and enjoy ment 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 increased 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 possess es all the necessary indicia of a coparcenary interest
The fact that before the Act of 1956 she had the characteristic of a widow estate 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 coparcenary 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 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 circum stances 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 copar ceners 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 Privy Council decision in Arunachalam Chettiar s case supra
In the first 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 Council 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 section
1 and sub section
2 of section 7 nor any provision similar to section 39 of the Act
In these circumstances we do not see how the Privy Council decision in Arunachalam Chattiar s case 733 supra can be called in aid to support the contention of the respondent
In the instant case once it is held as it must be that Smt
Alladi was a member of the Hindu coparce nary her interest was undoubtedly a coparcenary interest which lapsed on her death and merged into the coparcenary
It was also clearly capable of valuation unlike the posi tion in Arunachalam Chettiar s case where the Privy Council was construing a provision similar to section 40 of the Act which in our opinion has no application in the present case it being covered by section 39 of the Act
A fortiori the same observations apply to the case of Gertside vs Inland Revenue Commissioners supra
That case has no application here where we are concerned with the concept of a Hindu coparcenary which is totally alien to the estates contem plated under the English Acts
For these reasons there fore we are clearly of the opinion that the two cases relied upon by the High Court do not appear to be of any assistance in deciding the points at issue in the present appeal and the High Court was in error in basing its deci sion on the aforesaid cases ignoring the decisions of this Court as also the peculiar and special provisions of the Act
Finally it was vehemently contended by Mr Sastri for the respondent that the right of a Hindu widow under the Act of 1937 was merely a statutory substitution of a new status by her introduction into the copercenary and she could not be treated either as a coparcener or a me tuber of the copercenary or to possess any kind of coparcenary interest
While we agree that the widow after the introduction in the coparcenary could not be held to have become a coparcener because one of the essential characteristics of a coparcen er namely acquisition of interest by birth is wholly wanting in her case yet when the Legislature which was fully aware of the status of a Hindu widow under the Shas tric Law chose to improve her status by conferring a new right on her under the Act of 1937 and with this avowed object clothed her with all the rights and concomitants of a coparcener s interest it is futile to contend that the widow could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property
Even though the widow is not a coparcener in the strictly 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 by section 33 of the Act of 1937 namely that her interest would be the limited interest of a Hindu widow
The conclu sion is therefore inescapable that Smt
Alladi did possess a coparcenary interest which lapsed on her death and merged into the coparcenary and the case was clearly covered by the inclusive part of sub section
1 of section 7 and under section 39 the value of the benefit accruing or arising from the cesser of her coparcenary interest was to be determined by taking the principal value of the share in the joint family property which would have been allotted to her had there been a partition immediately before her death
The last plank of the argument of the respondent was that the being a fiscal statute should be construed strictly so as to give every benefit of doubt to the subject
There can be no quarrel with this proposition but when the phraseology of a particular section of the statute takes within its sweep the transaction which is 734 taxable it is not for the Court to strain and stress the language of the section so as to enable the tax payer to escape the tax
In the view that we take in this case it is manifest that the legislative intent reflected in the Act of 1937 and the Estate Duy Act 1953 must be given full effect
Summarising therefore the position that emerges is as follows By virtue of the provisions of the Act of 1937 a Hindu widow undoubtedly possesses a coparcenary interest as con templated by section 7 1  of the Act and she is also a member of a Hindu copercenary as envisaged by section 72 of the Act
On the death of Smt
Alladi therefore there was clearly a cesser of her interest and her interest merged in the coper cenary property and by reason of the inclusive part of sub section 1  of section 7 it must be taken to have passed on her death and was hence exigible to estate duty
Since Smt Alladi was a member of the copercenary this interest of her s which passed on her death was liable to be valued in accordance with the method provided by section 39 of the Act
The interpretation of section 40 of the Act is not free from difficulty but as the present case squarely falls within the ambit of section 7 1  latter part and sub section
2 of section 7 of the Act which attracts section 39 it is not at all necessary for us to enter into the complex domain of the scope and ambit of section 40 of the Act in this case
The result is that the appeal is allowed the judgment of the High Court is set aside and the question referred to the High Court is answered in the affirmative
There will be no order as to costs
SR Appeal allowed


Summary:
Shri Alladi was a member of the Hindu coparcenary con sisting of himself his wife Smt
Alladi and three sons
Shri Alladi who died before the came into force during his life time had settled certain proper ties absolutely on his wife and had also declared certain other properties to form part of the joint family proper ties
Alladi died on January 5 1956 a few months before the passing of the 
The Assistant Controller of Estate Duty valued her estate at a total amount of Rs 725527 including a sum of Rs 202271 being the value of her 14th share in the joint family properties on the footing that as Smt
Alladi 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 14th the heirs would be liable to pay estate duty on the value of the 14th share
The respondent filed an appeal before the Central Board of Revenue 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 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 section estate created by section 32 of the Hindu Widows Rights to Property Act 1937 was an interest in property which ceased on the death of the widow attracting estate duty
Thereupon the respondent moved the Board to make reference to the 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 641 of the Act but at the 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 circumstances of the case 14th share of the deceased in the joint family properties to which she was entitled under section 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 section 7 of the  The High Court relying on the decisions of the Privy Council in Attorney General of Ceylon vs Arunachalam Chettiar and Gartside vs Inland Revenue Commissioners  held that the interest of Smt
Alladi was not a coparcenary interest which could have passed under section 71 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 1 By virtue of the provisions of the Act of 1937 a Hindu widow undoubtedly possess a coparcenary interest as contemplated by section 71 of the Act and she is also a member of the Hindu coparcenary as envisaged by section 72 of the Act
734 B 722 2 Prior to the passing of the Act of 1937 a Hindu Woman had no right interest at all in a Hindu coparcenary
The Act of 1937 bettered the rights a Hindu widow and conferred on her by section 3 the same interest as possessed her husband
727 A 3 The words the same interest as he himself had in sub section 2 of section 3 of the Act of 1937 clearly indicate that the statute gave effect to the well settled doctrine of Hindu shastric law that the persons of the husband after his death continues through his wife who is a surviving half and the husband continues to live through the widow so long as the widow is alive
When the Legislature used the expres sion  the same interest as he himself had it would in clude all the rights possessed by the husband which could devolve on 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 copar cenary by birth which is one of the most important incidents of a Hindu coparcenary
727 D E 4 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 are that the interest of coparceners devolve by survivorship and not by inheritance and that the male issue of a coparcenary ac quires an interest in the coparcenary property by birth and not as representing his father
729 D E 5 A Hindu coparcenary has six essential characteris tics 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 parti tion each member has got ownership extending over the entire property jointly with the rest and so long as no partition takes place it is difficult for any coparcener to predicate the share which he might receive iv that as a result of such co ownership the possession and enjoyment of the property is common v that there can be no alienation of the property without the concurrence of the other copar ceners 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 coparcenary 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 coparcenary interest
The fact that before the Act of 1956 she had the characteristic of a widow estate in her interest in the property does not detract any the less from this position
Therefore though a Hindu widow cannot be a coparcener she has conarcenary interest and is also a member of the coparcenary by virtue of the rights conferred on her under the Act of 1937
731 F H 732 A B D State Bank of India vs Ghamandi Ram dead through Shri Gurbax Rai 686 applied
6 If the widow has not chosen to exercise her right of partition there no severenee of the Hindu coparcenary and on her death the interest of the widow merges in the copar cenary property or lapses to the other coparceners
Parappagari Parappa alias Harmmanthappa and Anr
vs Parappagari Nagaman and Ors
ILR 1954 Madras 183 ST Sabujpari and Anr
vs Satrughan Isser and Ors
AIR 1958 Patna 405 410 and Mst
Khatrant Kuer vs Smt
Tapeskwari Kuer AIR 1964 Pat 261 approved
7 It was not the intent of the legislature which was folly aware of the statutory interest conferred on a Hindu widow by 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 723 partition and her interest is a fluctuating one would lapse to the other coparceners in case of her death without seek ing partition in the same manner as that of other coparcen ers yet it should be exempt from estate duty
In the instant case Smt
Alladi was a member of the Hindu coparce nary her interest was undoubtedly a coparcenary interest which lapsed on her death and merged into the coparcenary
It was clearly capable of valuation it being covered by section 39 of the Act
The High Court was in error in basing 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 the Act
A C Attorney General of Ceylon vs Arunchalam Chettiar 34 ITR ED 20 and Gattside vs Inland Revenue Commissioners  ITR 663 HL held inapplicable
8 It is wrong to contend that the widow could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property
Even though the widow is not a coparcener in the strictly 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 by section 33 of the Act of 1937 namely that her interest would be limited interest of a Hindu widow
In the instant case Smt
Alladi possessed a coparcenary interest which lapsed on her death and merged into the coparcenary and was clearly covered by the inclusive part of sub section
1 of section 7 and under section 39 the value of the benefit accruing or arising from the cesser of the coparcenary interest was to be deter mined by taking the principal value of the share and the joint family property which would have been allotted to her had there been partition immediately before her death
The present case squarely falls within the ambit of section 71 latter part and sub section
2 of section 7 of the Act which at tracts section 39
By reason of the inclusive part of sub a
1 of section 7 it must be taken to have passed on her death and was hence exigible 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 stress 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  must be given full effect to
733 H 734 A