Smt. Sathyaprema Manjunatha Gowda Vs. The Controller of Estate Duty, Karnataka [1997] INSC 378 (3 April 1997)

K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

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.

The appellant is the widow of Manjunatha Gowda.

Manjunatha 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.

Hedied 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.

The 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:

"1(a) 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.

(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 leftno male issue shall be entitle to share with them.

(c) Sub Sections (a) and (b) shall also apply mutatis mutatis to a partition among other coparceners ina jointfamily.

(d) 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.

Classes 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.

Onthe 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.

Hindu 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.

"One 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 succession.

One whohas been appointed or elected tohold anoffice after the term of the present incumbent.

Term 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:

"To continue to live or exist beyond the life, or existence of;

tolive 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:

"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. 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:

"The 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.

Where 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:

"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 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.

Here, we are concerned with Manjunatha Gowda who had obtained property at a partition withcoparceners.

Survivorship, 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 brothers.

Under 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 by survivorship.

Under 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.

The appealis accordingly dismissed. No costs.

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