Satish Chandra, C.J. - (1.) ONE Ram Swarup died on 19th December, 1971, leaving behind his widow, Smt. Kalawati Devi, and one married daughter, Smt. Usha, to succeed to his estate. The widow, as an accountable person, filed a statement of the estate under the E.D. Act. She claimed that in the HUF properties her husband had a one-third share, which alone passed on his death to herself and her daughter. This plea was repelled. The Asst. Controller held that the deceased was the exclusive owner, and so the entire property passed on his death. The matter was taken up in appeal. The Appellate Controller confirmed the finding of the Asst. Controller. The accountable person took up the matter to the Income-tax Appellate Tribunal. There reliance was placed on Section 6 of the Hindu Succession Act, 1956. The Tribunal held : " In the present case, the property had come to the family of the deceased on a partition of the bigger HUF. It was, therefore, joint family property and was treated as such in the income-tax assessments. Merely because the deceased was the sole male coparcener in the family, it would not mean that the character of the property underwent any change. The wife had a right to maintenance and certainly the deceased could not have disposed of this property by way of gift. It could not be said, therefore, that he was its absolute owner and his right was only to the extent of one third and same was liable to be included."
(2.) THE appeal was accordingly allowed. At the instance of the Controller of Estate Duty, the Tribunal has referred the following question for our opinion : " Whether, on the facts and in the circumstances of the case, the Tribunal was in law justified in holding that tbe deceased had only one-third share in the properties ? " At the time of his death on 9th December, 1971, Ram Swarup's family consisted of his widow and a married daughter. The question is as to the rights and interest of the deceased and his widow and daughter in the property which the deceased, Ram Swarup, obtained on a partition of the bigger HUF. It appears that the property so obtained by Ram Swarup was treated as joint family property in the income-tax assessments. The Tribunal has held that he was not the absolute owner of the property. He had only an one-third share in it ostensibly on the footing that his widow and daughter also had an one-third share each. For the revenue, this view has been seriously questioned.
(3.) IN Mulla's Hindu Law, 14th edn., para. 223(4), at p. 272, it is stated : " (4) Share allotted on partition.--The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession." In para. 230 of Mulla's book several categories of properties are mentioned as separate property of the acquirer. They are his self-acquired property. Under Clause (6) is included share on partition, that is, property obtained as his share on partition by a coparcener who has no male issue. Admittedly, Ram Swarup did not have any male issue. He had only his wife and a daughter. In view of the aforesaid statement of the law the share allotted to Ram Swarup on the partition of the bigger HUF would be his separate property, and the entire property will pass to his heirs by succession.;