M.A.A. Khan, J. - (1.) THE Income-tax Appellate Tribunal, Jaipur Bench (for short "the Appellate Tribunal"), has referred the following questions to this court for its opinion : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that Section 6 of the Estate Duty Act, 1953, is not applicable in this case ?
(2.) WHETHER, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the cesser of interest deemed to pass on the death of the deceased in respect of the property held by the smaller Hindu undivided family is to be one-half and not full ? Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the share of the deceased in the larger Hindu undivided family on the basis of deemed partition should have been 1/6th and not 1/3rd ?" 2. The case stated by the Appellate Tribunal under Section 64(1) of the Estate Duty Act, 1953 (hereinafter referred to as "the Act"), is as under : The late Shri Chillu Ram, the deceased, constituted a Hindu undivided family (HUF) along with his wife, Smt. Kastoori Devi. This Hindu undivided family of the deceased held certain movable and immovable properties and had also a one-third share in the properties owned and held by the bigger Hindu undivided family of Jawahar Lal Gainda Lal. The bigger Hindu undivided family was assessed as such till the assessment year 1954-55. A partial partition of the bigger Hindu undivided family took place and was recognised by the Income-tax Officer on January 4, 1958. The deceased in his capacity of "karta" of his smaller Hindu undivided family, became a partner to the extent of 1/3rd share in a firm styled as Jawahar Lal Gainda Lal. 3. Shri Chillu Ram died on January 29, 1974. At the time of his death, the deceased had, as mentioned above, 1/3rd share in certain properties of the bigger Hindu undivided family and was also having share in the properties belonging to his own smaller Hindu undivided family. After the death of the deceased, the accountable persons filed the return of the estate which belonged to the deceased and passed on his death. In such return, the accountable persons had shown the share of the deceased in the bigger Hindu undivided family at 1/6th (one-sixth) and in the smaller Hindu undivided family at one-half which, according to them, was includi-ble in the principal value of the estate of the deceased passing on his death. The Assistant Controller of Estate Duty, however, noted that the deceased had no male issue. He, therefore, held the view that the entire share at one-third which the deceased along with his wife had in the bigger Hindu undivided family would pass on his death. He, accordingly, included the value of the share of the deceased in the properties of the bigger Hindu undivided family at one-third in the principal value of the estate of the deceased passing on his death. Regarding the properties belonging to the smaller Hindu undivided family, learned Assistant Controller of Estate Duty noted that the deceased had executed a will on December 5, 1973, and in such will he had declared himself to be the sole proprietor and owner of the properties belonging to the smaller Hindu undivided family. Taking into account the will of the deceased, the Assistant Controller of Estate Duty included the value of all the properties which belonged to the smaller Hindu undivided family in the principal value of the estate of the deceased passing on his death. In appeal, learned Appellate Controller of Estate Duty confirmed the finding recorded by the learned Assistant Controller of Estate Duty. In second appeal, the Appellate Tribunal examined the issues in sufficient detail and held that the deceased and his wife constituted a smaller Hindu undivided family and since this smaller Hindu undivided family had a one-third share in the bigger Hindu undivided family only a one-sixth share, which the deceased had in the bigger Hindu undivided family at the time of his death, was includible in the principal value of his estate passing on his death. With regard to the share of the deceased in the smaller Hindu undivided family, the learned Appellate Tribunal held that the deceased had a one-half share only in the properties of the smaller Hindu undivided family and the will executed by the deceased on December 5, 1973, was ineffective qua the interest and share of his wife in the properties belonging to the smaller Hindu undivided family. The learned Appellate Tribunal, therefore, directed that one-half share only which belonged to the deceased in the smaller Hindu undivided family and which passed on his death should be included in the principal value of the estate of the deceased. In arriving at its conclusion, the learned Appellate Tribunal examined the scope and applicability of Sections 6, 7 and 39 of the Act and held that the provisions of Section 6 do not stand attracted to the facts of the present case.
(3.) LEARNED counsel for the Department urged that since the deceased was the sole surviving male member of the smaller Hindu undivided family, he had a one-third share in the properties of the bigger Hindu undivided family. The said one-third share belonging to the deceased would be deemed to pass on his death and, therefore, the provisions of Section 6 would apply to the present case. LEARNED counsel urged that since the smaller Hindu undivided family had only one male member, the interest and share of the smaller Hindu undivided family in the bigger Hindu undivided family would belong to such sole male member, i.e., the deceased, and the entire interest would pass on his death. Mr. N.M. Ranka, learned counsel for the accountable persons, on the other hand, urged that it is not in dispute that the smaller Hindu undivided family of the deceased had a one-third share in the bigger Hindu undivided family. Since the smaller Hindu undivided family was constituted by the deceased along with his wife, the deceased had only a one-sixth share in the bigger Hindu undivided family at the time of his death and the interest of the deceased to that extent only would cease and shall be deemed to pass on his death. Mr. Ranka emphasised that the benefit which accrued or arose by the cesser of the interest of the deceased in the properties belonging to the bigger Hindu undivided family would be deemed to pass on his death. In order to appreciate the rival submissions of learned counsel for the parties in the right perspective the concepts of "family" and "property" under the Hindu law are required to be clearly understood. Joint and undivided character of a family is the normal condition of the Hindu society. An undivided Hindu family is ordinarily joint not only in estate but also in food and worship. But existence of joint estate is not an essential requisite to constitute a joint or undivided Hindu family. Hindus get a joint family status by birth and the joint family property is only an adjunct of the joint family. Ordinarily, a joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The sex of the members is thus immaterial. One male and one female may constitute it. Even two females may also constitute it. For instance, the death of the father and son leaving behind them their respective wives would not deprive the widows of their status as members of a joint Hindu family. So long as the widow is capable of bringing a son into existence by adoption the character of the family as a joint Hindu family would be deemed to subsist, Smt. Dhani Devi and Jhavermal v. CED [1973] 89 ITR 96 (Raj). ;