Manjunatha Gowda Vs. The Controller of Estate Duty, Karnataka  INSC 378 (3 April 1997)
RAMASWAMY, D.P. WADHWA
O R D
E R This appeal is by certificate granted bythe Division Bench of Karnataka
High courtunder Section 64(1) of the Estate Duty Act, 1953.The facts are very
simple and lie in a narrow compass.
appellant is the widow of Manjunatha Gowda.
Gowda was amember of jointfamily consisting of Mallegowda, his father and other
members of the Hindu Undivided Family. On may 4, 1965, ona partition amongst
themselves, he got 4/5th share in the Hindu Undivided Family properties. Onhis
demise, it is claimed that his unmarried daughter has 1/5th share in itand hiswidow,
the appellant also has a share in that property.
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 HinduLaw Women's Rights Act,1933 (Mysore Act No. VIII
of 1933), (for short, the `Act'). The Estate Duty officer excluded her sharefrom
taxable estate. But, on appeal,it was reversed. on a reference, the high Courtheld
that the view taken by the Tribunal is correct. Thusthis appeal.
question onwhich reference was sought by the assessee is asunder :
"whether inthe facts and the circumstances of the case, the Tribunal was
correct in holdingthat neither the unmarried daughter nor the wife of the
deceased had any interestin the above property of the deceased while he was
alive" Thus the only question for consideration is: whether the Estate
left byManjunatha Gowda wasobtained by survivorship applying Section 8(1)(d) of
the Act? Section 8 reads as under:
At a partition of joint family property between a person and his son or sons,
his mother, his unmarred daughtersand the widows and unmarried daughters of his
predeceased undividedsons and brothers who have leftno male issue shall be
entitled to a share with them.
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 leftno male issue shall be entitle to share with
Sub Sections (a) and (b) shall also apply mutatis mutatis to a partition among
other coparceners ina jointfamily.
Where jointfamilyproperty passes toa single coparcener by survivorship, it shallso
pass subject to the rights toshare of the classes of females enumerated inthe
above sub-section." Clauses (a) to (c) of sub-section (1) ofSection8 do
not apply to the facts in this case. Only clause (d) applies to thefacts in
this case. Areadingof it would indicate that when joint family property passes
to a single coparcener, by survivorship, itshall so pass subject to the rights
of the share ofthe classes of females enumerated in clause (a) of sub-section
(1) of Section 8.
of females have been mentioned in Clause(a), namely,his mother, his unmarried
daughters, widows and unmarried daughters ofhis predeceased undivided sons and
brothers whohave left is not necessary for its constitution. Nor is it
necessary that allthe members possessright or status even though the property
of the family is called joint family property.
other hand, coparcenary isa narrower bodythan a joint familyand consists of
only those persons whohave taken by birth an interest in the property of the
holder fro the time being and who can enforce a partition wheneverthey like. It
commences with a common ancestor and includes a holder of joint property and
only those males in hismale 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 theholder of the property, the great- great-grandson cannot be coparcencer
with him, because he is removedby morethan three degrees fromthe holder.
Undivided Family isa concept and coparcenary is not one of the same under the
Hindu Law. But for the purposes of taxationunder the Act, as in other tax
measures, likethe Income-taxAct, they are treated as one and thesame. The
question, therefore is: whether Manjunatha Gowda, when he had the propertyat
the partition between the coparceners received itby survivorship? The primary
meaning if theword `survive'is to live beyond the life or extent of, or to
outlive; but it also has secondary meaning namely, to live after,and asused inthe
phase, "If either of any said sons should die without leavinga child which
shall survivehim." The word `successor' has been defined in Black'sLaw Dictionary(sixthedition)
at page 1431 as under.
thatsucceeds or follows; one who takesthe place that another has left,and
sustains the like part or character; one who takes the place of another by
been appointed or elected tohold anoffice after the term of the present
with reference to corporations, generally means another corporation which,
through amalgamation, consolidation, or other legal succession, becomes
invested with rights and assumes burdens offirst corporation." The word
`survive' has been defined in the abovesaid dictionary thus:
continue to live or exist beyond the life, or existence of;
through in spiteof; live onafter passing through; to remain alive; exist in
force or operation beyond any period or event specified." The word
`Survivorship' has beendefined in thesame dictionary thus:
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. Afeatureof joint
tenancy and tenancyby the entirely, whereby the surviving co- owner takes the
entire interest in preferenceto heirs or devisees of the deceased
co-owner." The word `survivor' has been defined inP. Ramanatha Aiyar's`The
Law Lexicon' (1987edition), thus:
longer liver of two joint- tenants, or of any two persons joined inthe right of
a thing. He that remaineth alive, after others bedead etc.
a trust deed conveys certain property to certain trustees, and tothe survivor
of them, or the assigns of such survivor,the term "the survivor or hisassigns"
necessarily imports the power to transfer by the survivor." The book
further definesthe word `survivorship' as under:
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
by survivorship" exists only when the estate is held in joint ownership
(as) among Hindu Coparceners governed by the Mitaksharalaw." The word
`survivor' usually applies tothe longest lives of two or more partners or
trustees, and hasbeen appliedin some cases to the longest liver or joint
tenants and legatees, and to others having a joint interest in any property.
we are concerned with Manjunatha Gowda who had obtained property at a partition
therefore, is theliving of one of two ormore person after the death of the othershavinginterest
to succeedin theproperty by succession. The shares in the coparcenery property
changes with death or birth of other coparceners. However, in the case of
survivorship it si not of thesame incidence. He received the property at the
partition without theirbeing any othercoparcener. It is an individual property
and, therefore, he did not receive it by survivorship but by virtue of his
status beinga coparcener of theHindu Joint family along withhis father andwith
these circumstances, the conclusion reached by the High Court that it si by partition,not
by survivorship, clause (d) of sub-section (1)of Section 8 does not get
attracted. No doubt, the learned counsel relied upon the judgment of this Court
in Nagendra Prasad &Anr. v. Kem Panarijamma [AIR 1966 SC 209]which was also
considered by the High Courtin the impugnedjudgment. This Court therein has
explained that the objectof 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 family class ofpersonsentitled to a share in the property, it
does not apply to a case where family class of persons entitled underclause
8(1)(d) since itstands on altogether on a differentfooting and, therefore,
partition is not condition precedent for claiming a share bya class of family
person enumerated in Section 8(1)(a) ofthe Act. But that principle has not
bearing to the facts in this case for the reason that the propertyheld was notreceived
these circumstances, family members enumerated under section 8(1)(d) are notentitled
to ashare in the estate left bythe deceased.Thus we do not find any illegality
in the view taken by the High Court warranting interference.
accordingly dismissed. No costs.