S.V. Maruthi, J. - (1.) AT the instance of the Revenue the following question is referred by the Tribunal for the opinion of this Court. "Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in holding that an amount of Rs.75,000/- would be required for the marriage expenses of the unmarried daughter and should be deducted while computing the total wealth of the family before making notional partition of the assets of the joint family which is contrary to the ratio laid down by the Andhra Pradesh High Court in the case of Son. A. Suhasini v. C.E.D. (145 ITR 220)?"
(2.) THE facts in brief arc as follows: Sri S. Vijayendra Reddy is the accountable person to late S. Ramachandra Reddy. THE family of the deceased consisted of the deceased, his wife Smt. Pramiladevi, his three sons viz., Rajendra Reddy, Vijayendra Reddy and Ajayendra Reddy and the daughter Aparna Rani. THE death of the deceased took place on 20-2-1981. THE share of the deceased was held to be l/4th in the whole of the joint family property. When the matter was pending in appeal before the Appellate Controller of Estate Duty a claim was made that by the date of the death of the deceased, Smt. Aparna Rani was an unmarried daughter and while determining the value of the joint family property available for notional partition under Section 6 of the Hindu Succession Act, 1956 (for short the 'Act'). THE probable marriage and maintenance expenses of the unmarried daughter in the family should be deducted or should be considered. THE Appellate Controller of Estate Duty refused to entertain this additional ground on the plea that it was taken for the first time before him and it was never pressed into service while the matter was pending before the Assistant Controller of Estate Duty, the matter then came up in Second Appeal before the Tribunal. THE Tribunal relying upon a decision of this Court in Gangappa Cables Ltd., v. CIT, 116 ITR 778 allowed the ground. THE Tribunal also called for the expenses that are liable to be incurred by the family for the marriage of the unmarried daughter and arrived at Rs.75,000/-. Accordingly the Tribunal allowed the marriage expenses of the daughter before making notional partition for the purpose of determining the share of the deceased in the joint family property. A miscellaneous petition was filed before the Tribunal contending that the order of the Tribunal is contrary to the judgment of this Court in Smt. A. Suhasini v. CED (145 ITR 220). THE said petition was dismissed on the ground that the said decision was not relevant to the facts of the case as it was a case relating to the maintenance and educational expenses for the unmarried daughter. THE Tribunal therefore referred the above question for the opinion of this Court. The question therefore is whether the Tribunal is justified in deducting Rs.75,000/-before arriving at the share of the deceased in joint family property for the purpose of determining the liability to the Estate Duly under the Act. Section 6 of the Estate Duty Act says that the property which the deceased was at the time of his death competent to dispose of shall be deemed to pass on his death. It is undisputed that die family is a joint family and the property is coparcenary property. Therefore it is only the property over which the deceased has disposing capacity on his death passes on his death. The deceased has disposing capacity only to the extent of his share in the joint family property. Therefore before determining the estate duty liability the share of the deceased in the joint family is to be ascertained. While ascertaining the share of the deceased in the joint family property there should be a notional partition in the joint family property. For making such notional partition the following principle shall be followed: "In order to determine what property is available for partition, provision must first be made for joint family debts which are payable out of the joint family property, personal debts of the father not tainted with immorality, maintenance of dependent female members and of disqualified heirs, and for the marriage expenses of unmarried daughters. (Para-304 of Mulla's Hindu Law) Therefore before arriving at the share of the deceased in the joint family property from out of the joint family property', the family expenses required for the marriages of unmarried daughters have to be set apart. Thereafter the balance has to be partitioned between the members of the joint family. Under the Hindu Law in the case of a joint family governed by the Mitakshara Law, the joint family property is liable, while the family is still joint, for the legitimate marriage expenses of male members of the femily, and also of the daughters of male members of the family.
(3.) THEREFORE before arriving at the share of the deceased co-parcener in the joint family by notional partition, the liability towards marriage expenses of unmarried daughters is to be deducted and then the share of the deceased co-parcener is to be arrived at. The Tribunal has set apart Rs. 75,000/- towards marriage expenses of the unmarried daughter of the deceased while determining his share in the joint femily property by notional partition. The procedure adopted by the Tribunal is in accordance with the principles laid down under die Hindu Law. THEREFORE we do not see any infirmity in the order of the Tribunal. The reference is answered accordingly.;