M.S.SHAH, J. - (1.) IN this reference at the instance of the Revenue, the following question is referred for our opinion : "Whether, on the facts and in the circumstances of the case, the 1/2 share of the deceased in the HUF estate inherited from her husband was includible in her hands as a property passing or deemed to pass on her death?"
(2.) SMT . Harigangaben expired on 19th Feb., 1977 leaving behind two sons Jamnadas and Vipin and a daughter. Her husband Kanaiyalal had expired on 20th Feb., 1971 after making a will dt. 21st April, 1969. By the said will, he had bequeathed his undivided interest in all the property of the Kanaiyalal HUF upon the HUF consisting of his two sons Jamnadas and Vipin and his wife Harigangaben and he directed his executors to give his undivided interest to the HUF of Kanaiyalal as an independent owner thereof. On the death of Harigangaben, the Asstt. CED held that upon the death of Kanaiyalal, Harigangaben had acquired interest in the property of the HUF which passed on her death. He took the view that under S. 3(2) of the Hindu Women's Right to Property Act, 1937, the widow of a member of the HUF, steps in the shoes of her husband and her husband's interest in the joint family property would vest immediately upon his death on the widow. Hence, Harigangaben acquired the rights of her deceased husband in the HUF property on 20th Feb., 1971 and in view of the provisions of ss. 6 and 14 of the Hindu Succession Act, 1956, Harigangaben became absolute owner of her husband's share in the HUF property and on that basis, the Asstt. Controller determined the value of Harigangaben's share in the HUF as acquired at the time of her husband's death at Rs. 85,329 and included the same in her taxable estate. In the appeal, the Appellate Controller accepted the contention of the accountable person that since Kanaiyalal had bequeathed his undivided interest in all the property of the HUF upon the smaller HUF consisting of his two sons and his wife Harigangaben and since the HUF of Kanaiyalal Harilal had become an independent owner of the property under the said will, Harigangaben had not acquired any interest in the HUF property upon the death of her husband. Accordingly, the Appellate Controller deleted the inclusion of Rs. 85,329.
(3.) WHEN the Revenue carried the matter before the Tribunal, there was difference of opinion between the JM and the AM. While the JM expressed his opinion in favour of the Revenue, the AM expressed his opinion in favour of the accountable person. On a reference under S. 63(11) of the ED Act, 1953, the Third Member, i.e., the Vice President of the Tribunal agreed with the view of the AM. Accordingly, the appeal filed by the Revenue was dismissed by majority opinion. Hence, this reference at the instance of the Revenue.;