SMT. SATHYAPREMA MANJUNATHA GOWDA

THE CONTROLLER OF ESTATE DUTY, KARNATAKA

APRIL 3, 1997

IK. RAMASWAMY AND D.P. WADHWA, JJ.)

Hindu Law Womens Rights Act, 1933.

Mysore Act No. VIII of 1933: Section S(l)(d).

Estate Duty Act, 1953 : Sections 5, 6 and 64(1).

Joint Family Prope1ty-Single Co-parcene,-.../'artitio11 amongst himself, his father and other members-Death of single coparcener-!mposition of Estate Duty-Exclusio11 sought by widow of her and her daughters' share-Es- D tate Duty Officer excluding the share from taxable estate-But on appeal it was rel'~-sed-High Cowt held the view taken by Tribunal was co1Tect--:"'ppeal before Supreme Cowt-Held on death of Co-parce11er his widow a11d daughter were not entitled to share in the Estate-Claim of execlusion of their share from Estate Duty rightly rejected by High Cowt-Deceased Co-parcener received the prope1ty ai the pmtition without their being any other copar- E ce11er-It was an individual prope1ty a11d, therefore, he had not received it by survivorship but by virtue of his status bei11g a coparcener of the Hindu Joint f amity alo11g with his father and with brothers. Under these circumstances, family memben enumerated under section 8( l)(d) are not entitled to a share

in the estate left by the deceased.

Nagendra Prasad & Anr. v. Kempananjamma, AIR (1968) SC 209, held inapplicable.

Hindu Law-Hindu Undivided f amity co-parcena1y-Distinction between.

Words and Phrases :

'Survive', 'Successor' and 'Survivorship'-Meaning of-Hindu Law.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3021 of

H 1986. 586

From the Judgment and Order dated 13.3.86 of the Karnataka A High Court in S.C.L.A.P. No. 5 of 1986.

Ms. Madhu Moolchandani for the Appellant.

K.N. Shukla Rajeev Sharma and B.K. Prasad for the Respondent.

The following Order of the Court was delivered :

This appeal is by certificate granted by the Division Bench of Karnataka High Court under Section 64(1) of the Estate Duty Act, 1953. The facts are very simple and lie in a narrow compass.

The appellant is the widow of Manjunatha Gowda. Manjunatha Gowda was a member of joint family consisting of Mallegowda, his father and other members of the Hindu Undivided Family. On May 4, 1965, on

a partition amongst themselves, he got 4/5th share in the Hindu Undivided Family properties. On his demise, it is claimed that his unmarried D daughter has 1/5th share in it and his widow, the appellant also has a share in that property.

He died on August 18, 1971 and when estate duty was sought to be imposed, the appellant claimed exclusion of her share and that of her daughter in the property under Section 8(1)(d) of the Hindu Law Women's E Rights Act, 1933 (Mysore Act No.-VIII of 1933), (for short, the 'Act'). The Estate Duty Officer excluded her share from taxable estate. But, on appeal, 'it was reversed. On a reference, the High Court held that the view taken by the Tribunal is correct. Thus this appeal.

The question on which reference was sought by the assessee is as under : "whether in the facts and the circumstances of the case, the Tribunal was correct in holding that neither the unmarried daughter nor the wife of the deceased had any interest in the above property of the deceased while he was alive".

Thus the only question for consideration is : whether the Estate left by Manjunatha Gowda was obtained by survivorship applying Section 8(1)( d) of the Act? Section 8 reads as under :

"l(a) At partition of joint family property between a person and H

his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue shall be entitled to a share with them.

(b) At a partition of joint family property among brothers, their mother, their unmarried sisters and widows and unmarried daughters of their predeceased undivided brothers who have left no male issue shall be entitled to share with them.

( c) Sub Sections (a) and (b) shall also apply mutatis mutandis to a partition among other coparceners in a joint family.

( d) Where joint family property passes to a single coparcener by survivorship, it shall so pass subject to the rights to share of the classes of females enumerated in the above sub-section."

Clauses (a) to (c) of sub-section (1) of Section 8 do not apply to the facts in this case. Only clause ( d) applies to the facts in this case. A readir!g of it would indicate that when joint family property passes to a single coparcener, by survivorship, it shall so pass subject to the rights of the share of the classes of females enumerated in Clause (a) of sub-section (1) of E Section 8.

Classes of females have been mentioned in Clause (a), namely, his mother, his unmarried daughters, widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issues:' p they are all entitled to a share with them.

The question, therefore, is: whether the appellant, Smt. Manjunath Gowda, has obtained this estate left by her husband by survivorship? The Hindu joint family consists of male members descending lineally from a common male ancestor, together with their mother, wives or widows and G unmarried daughters bound together by the fundamental principle of sapindaship or family relationship which is the essence and distinguishing feature of the institution. This body is purely a creature of law and cannot be created by act of parties save in so far that by adoption or marriage a stranger may be affiliated as a member thereof. An undivided family which H is the normal condition of Hindu Society is ordinarily joint not only in

estate but in food and worship; therefore, not only the concerns of the joint A family, but whatever relates to their commenality and their religious duties and observances are regulated by the members or by the manager to whom they have, expressly or by implication, delegated the task of regulation. The joint family status being the result of birth, possession of joint properties is only an adjunct of the joint family and is not necessary for its constitution. B Nor is it necessary that all the members possess right .or status even though the property of the family is called joint family property.

On the other hand, coparcenary is a narrower body than a joint family and consists of only those persons who have taken by birth an interest in the property of the holder for the time being and who can C enforce a partition whenever they like. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees.

Thus while a son, a grandson or a great-grandson is a coparcener with the holder of the property, the great-great-grandson cannot be a coparcener D with him, because he is removed by more than three degrees from the holder.

Hindu Undivided Family is a concept and coparcenary is not one of the same under the Hindu law. But for the purposes of taxation under the E Act, as in other tax measures, like the Income-tax Act, they are treated as one and the same. The question, therefore, is: whether Manjunatha Gowda, when he had the property at the partition between the coparceners, received it by survivorship? The primary meaning of the word 'survive' is to live beyond the life or extent of, or to outlive; but it also has a secondary meaning namely, to live after, and as used in the phrase, "If either of my F said sons should die without leaving a child which shall survive him." The word "successor" has been defined in Black's Law Dictionary (sixth edition) at page 1431 as under :

"One that succeeds or follows; one who takes the place that another G has left, and sustains the like part or character; one who takes the place of another by succession. One who has been appointed or elected to hold an office after the term of the present incumbent.

Term with reference to corporations, generally means another corporation which, through amalgamation, consolidation, or other H

legal succession, becmp.es invested with rights and assumes burdens of first corporation."

The word 'survive' has been defined in the above said dictionary thus:

To continue to live or exist beyond the life, or existence of; to live through in spite of; live on after passing through; to remain alive; exist in force or operation beyond any period or event specified."

The word 'Survivorship' has been defined in the same dictionary thus:

"The living of one of two or more persons after the death of the other or others. Survivorship is where a person becomes entitled to property by reason of his having survived another person who had an interest in it. A feature of joint tenancy and tenancy by the entirety, whereby the surviving co-owner takes the entire interest in preference to heirs or devisees of the deceased co-owner."

The word 'survivor' has been defined in P. Ramanatha Aiyar's 'The Law Lexicon' (1987 edition), thus :

"The longer liver of two joint-tenants or of any two persons joined in the right of a thing. He that remaineth alive, after others be dead etc.

Where a trust deed conveys certain property to certain trustees, and to the survivor of them, or the assigns of such survivor, the term "the survivors or his assigns necessarily imports the power to transfer by the survivor."

The book further defines the word 'survivorship' as under :

"The living of one of two or more persons after the death of the other or others. In relation to property the condition that exists where a person becomes entitled to property by reason of his having survived another person who had an interest in it.

"Title by survivorship" exists only when the estate is held in joint ownership (as) among Hindu Coparceners governed by the Mitak-

,...;- --

shara law."

The word 'survivor' usually applies to the longest lives of two or more partners or trustees, and has been applied in some cases to the longest liver or joint tenants and legatees, and to others having a joint

interest in any property.

Here, we are concerned with Manjunatha Gowda who had obtained property at a partition with coparceners. Survivorship, therefore, is the living of one of two or more persons after the death of the others having interest to succeed in the property by succession. The C shares in the coparcenary property changes with death or birth of other coparceners. However, in the case of survivorship it is not of the same incidence. He received the property at the partition without their being any other coparcener. It is an individual property and, therefore, he did not receive it by survivorship but by virtue of his D status being a coparcener of the Hindu Joint family along with his father and with brothers.

Under these circumstances, the conclusion reached by the High Court that since it is by partition, not by survivorship, clause ( d) of E sub-section (1) of Section 8 does not get attracted, is not correct. No doubt, the learned counsel relied upon the judgment of this Court in Nagendra Prasad & Anr. v. Kempa11a11jamma, AIR (1968) SC 209 which was also considered by the High Court in the impugned judgment.

This Court therein has explained that the object of Section 8(1)(d) is F to give a right to claim a share in the joint family property to all females referred to in clauses (a) to (c) thereof, had on one footing and Section 8(1)( d) on the different footing. Merely because partition by one of the coparceners under clauses (a) to (c) is a condition for a class of family members entitled to a share in the property, it does not apply to a case where class of family members are entitled under G clause 8(1)(d) since it stands on altogether on a different footing and, therefore, partition is not a condition precedent for claiming a share by a class of family members enumerated in Section 8(1)(a) of the Act.

But that principle has no bearing to the facts in this case for the reason that the property held was not received by survivorship.

A Under these circumstances, family members enumerated under section 8(1)(d) are not entitled to a share in the estate left by the deceased.

Thus we do not find any illegality in the view taken by the High Court warranting interference.

The appeal is accordingly dismissed. No costs.

T.N.A.

Appeal dismissed.