Income Tax Appellate Tribunal - Hyderabad
Sri Samudralla Satyanarayana vs Assistant Controller Of Estate Duty on 28 May, 1987
Equivalent citations: [1987]23ITD40(HYD)
ORDER
T.V. Rajagopala Rao, Judicial Member
1. This is an appeal filed by the accountable person against the Appellate Controller of Estate Duty's order dated 25-3-1986.
2. One Samudralla Satyanarayana Setty died on 28-5-1981. In the statement of accounts filed for purpose of determining estate duty before the Assistant Controller of Estate Duty disclosed the value of the estate at Rs. 1,26,297. However, the value of the estate was determined at Rs. 6,58,400 as per the Assistant Controller's order dated 12-3-1984.
3. Aggrieved against the said assessment the accountable person went in appeal before the Appellate Controller. The accountable person is no other than the adopted son of the deceased. The deceased was survived by his widow as well as by adopted son. During his lifetime the deceased and his adopted son constituted a Hindu coparcenery or joint family for which the deceased was the karta. When the matter was pending in appeal before the Appellate Controller an additional ground was raised stating that the share of the deceased in the HUF properties should be computed after allowing reasonable amount towards the maintenance of the wife of the deceased. The said additional ground was summarily dismissed on the ground that it was raised for the first time before the Appellate Controller and it was not raised before the Assistant Controller. No evidence of any sort was either secured or filed before the Assistant Controller of Estate Duty to decide the contention and therefore following the decision of the Supreme Court in Addl. CIT v. Gurjargravures (P.) Ltd. [1978] 111 ITR 1 the Appellate Controller rejected the additional ground.
4, Aggrieved against the order of the Appellate Controller-dated 25-3-1986 the accountable person came up in second appeal before this Tribunal. Originally in the grounds of appeal the only claim made was that the claim of maintenance of the wife of deceased should have been admitted and necessary relief should have been granted. During the course of hearing additional ground was filed stating that under para 304 of the Mulla's Hindu Law the wife of the deceased has to be provided for towards her maintenance and the balance property only is available for partition. (Notional partition contemplated under Section 6 of the Hindu Succession Act.) The half share which the deceased possessed in the joint family property should therefore be computed only after the provision for the wife's maintenance is deducted,
5. First, let us take up the question whether the additional ground should have been entertained. It is argued by Shri S.V. Subbarao, learned counsel for the accountable person, that this is a pure question of law and it can be raised at any time. He also argued that all the particulars of the property held by the joint family were already furnished and were on record of Assistant Controller of Estate Duty. The only request made by the accountable person was that to reasonably quantify the amount of the maintenance claim of the wife of the deceased should be deducted before determining the share of the deceased in the HUF properties which have been passed to his heirs after his death. It is not in dispute that the deceased died intestate. Shri Subba Rao, learned counsel for the accountable person, stressed time and again that the quantification of the right of maintenance of the wife was not claimed from out of her husband's share in the coparcenery property. Wife's claim is against the coparcenery property as such. According to him the wife has got a right of maintenance from the coparcenery property as per law found adumbrated at para 304 of Mulla's Hindu Law, 15th Edition, which is as follows :
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. Where a partition takes place between the sons, provision must also be made for the funeral ceremonies of the widow and mother of the last male holder. After this is done, an account must be taken of the joint family property in the hands of the manager and other members of the family, according to the rule laid down in the next following section.
Therefore, the thrust of Sri Subba Rao's argument is that a wife during the lifetime of her husband has got the claim for maintenance against the coparcenery property held by the coparcenery in which her husband is one of the coparceners. In support of his contention that a question of law can be raised at any time he relied on the decision of the Andhra Pradesh High Court in CIT v. Gangappa Cables Ltd. [1979] 116 ITR 778. In Gangappa Cables Ltd.'s case (supra) the true meaning of the ratio laid down by the Hon'ble Supreme Court in Gurjargravures (P.) Ltd.'s case (supra) was explained. Their Lordships of the Andhra Pradesh High Court explaining Gurjargravures (P.) Ltd.'s case (supra) held that that case applies where there was absence of material and also the claim. But when there is either material or claim then the ratio of Gurjargravure's case does not apply. He further contended that in a case when a new ground deals only with a question of law it can be raised at any time and even before the Tribunal for the first time though the said question was never raised before either of the lower authorities. He cited the decision of the Andhra Pradesh High Court in Shaik Ibrahim v. CIT [1968] 69 ITR 117. In the head note of the said decision the following is held :
An assessee is entitled to raise a question of law for the first time before the Tribunal though he did not raise it before the Income-tax Officer or the Appellate Assistant Commissioner.
He also cited before us our own decision in I.D.L. Chemicals Ltd. v. ITO [1984] 9 ITD 422 (Hyd.). In that case we held that when there is enough material already on record to entertain the claim the assessee may be allowed to claim short term capital loss. In view of all the above decisions we are of the opinion that the additional ground raised before the Appellate Tribunal being in the nature of a pure question of law it ought to have been entertained and the decision thereon should have been given by the lower appellate authority. The mere fact that he had not allowed it to be raised before him does not debar this Tribunal to entertain the ground and to examine whether the said ground is legally tenable or not. The real question which falls for our consideration is, what is the nature of the maintenance claim of the wife. Whether such claim is available against the joint family property, if so, under what circumstances, if a wife of a Hindu husband died as a coparcener in a Hindu joint family, whether his wife who inherits under Sections 6 and 8 of the Hindu Succession Act, 1956 is endowed with an additional right of claiming maintenance from the joint family also.
6. We must make a distinction between wife of a coparcener and the widow of coparcener leaving behind his coparcenery right in the hands of the remaining coparceners. Firstly even from Vedic texts it would appear that a right of maintenance is a personal right and it would be available against the husband irrespective of the fact whether he had got any property or not. In Mayne's Hindu Law (11th Edition) at para 684 it is stated that maintenance of a wife is a matter of personal obligation arising from the very existence of the relationship and quite independent of the possession of any property, ancestral or acquired. A text of Manu cited in the Mitakshara and the Parasarama-dhaviya says : "It is declared by Manu that the aged mother and father, the chaste wife and an infant child must be maintained even by doing a hundred misdeeds". Under Section 2 of the Hindu Married Women's Rights to Separate Residence and Maintenance Act, 1946, which came into operation on the 23rd April, 1946, a Hindu married woman is entitled to separate residence and maintenance from her husband on one or more of the grounds mentioned in the said section. Again at para 689 at page 821 the learned author stated that the widows of the members of the family are entitled to maintenance. At page 822, para 690 the learned author stated that though a widow is entitled to maintenance from her son in her character as mother, even if he is not in possession of ancestral property, a similar right against father-in-law is not admitted. The Smritichandrika expressly states that the obligation to maintain the widow is dependent on taking the property of the deceased. Where the father-in-law disposes of his property by gift or will the Madras and Bombay High Courts have held that the daughter-in-law cannot claim any maintenance from the donee or the devisee.
7. In Mulla's Hindu Law, 15th Edition, the law of maintenance as was existing prior to the coming into force of Hindu Adoptions and Maintenance Act was broadly divided into two categories. Under the first category the liability to maintain others arises from mere relationship between the parties independent of possession of any property. The second category of the liability to maintain depends altogether on the possession of the property. Continuing the same topic the learned author stated at para 544 in which he discussed the liability of a heir to provide maintenance to the dependants of the deceased whose property he had inherited the following is what is held :
An heir is legally bound to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain. The reason is that the estate is inherited subject to the obligation to provide for such maintenance.
At page 111 while discussing the inroad made by the Hindu Women's Right to Property Act into the prevalent law the learned author stated as follows :
The right to claim partition given to a widow under this subsection does not negative her right to claim maintenance. It is only an enabling right and she may ask for maintenance instead of partition. But she cannot enforce both the rights simultaneously.
Till now we believed to have stated the position in Hindu Law about maintenance prior to the advent of Hindu Adoptions and Maintenance Act.
8. Now let us consider what are the changes brought about by the Hindu Adoptions and Maintenance Act. Firstly, it was a codifying Act and any real text, rule or interpretation of Hindu Law or any custom or usage as part of that law which is in force immediately before the commencement of the said Act shall cease to have effect with respect to any matter in which provision is made for this Act. Section 18(1) of Hindu Adoptions and Maintenance Act codified the personal obligation of a Hindu to maintain his wife when it stated :
Subject to the provisions of this section, a Hindu wife whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
Obligation to maintain the dependants of the deceased whose estate was inherited was now codified in the form Section 22(1) which reads as follows :
Subject to the provisions of Sub-section (2), the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.
Sub-section (2) of the said section is as follows :
Where a dependant has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.
Section 21(3) enlisted the widow of the deceased so long as she does not remarry as coming under the class of dependants.
9. In CED v. Smt. P. Leelavathamma [1978] 112 ITR 739, the then Acting Chief Justice of the Andhra Pradesh High Court delivering the judgment of the Bench held that so long as the husband is alive a wife is not a 'dependant' within the meaning of Section 21. During the existence of her husband the wife's right to be maintained is proclaimed and preserved under Section 18(1). Their Lordships after quoting Sub-section (2) of Section 22 of the Hindu Adoptions and Maintenance Act held that if dependant has obtained any share in the estate of the deceased Hindu either by testamentary or intestate succession he or she will not be entitled to maintenance from those who take the estate. The principle behind this sub-section is obvious. Once a dependant gets a share in the deceased Hindu's estate, his or her right to get maintenance comes to an end and she cannot have not only a share but also maintenance besides. They had also a Division Bench decision of the Andhra Pradesh High Court in S. Kameshwaramma v. S. Subramanyam AIR 1959 AP 269 where their Lordships at page 271 observed as follows :
A combined reading of the provisions of Sub-sections (1) and (2) indicates that while Sub-section (1) imposes a liability on a heir and confers a correlative right on the dependant to claim maintenance under the provisions of the Act, Sub-section (2) excludes the dependants acquiring a share in the property of a person who died after the Act, from claiming maintenance.
10. Now in the case before us no claim of maintenance was ever made by the wife of the deceased against the deceased. No charge was also created against any item of property held by the deceased towards the so-called maintenance of the wife. Under Section 27 of Hindu Adoptions and Maintenance Act the claim of maintenance would be a charge on the estate of the deceased or any portion thereof if one is created either by the will of the deceased, or by a decree of a court. From what we have stated above the proposition sought to be canvassed before us that the wife has a claim of maintenance against the joint family in which her husband is the karta of the family while her husband was alive is not correct and it is to be rejected.
11. We have already traced the character of the right of maintenance from the inception and it is always described to be the personal obligation of the husband. The present before us is not a case where her husband's share in a coparcenery property was being enjoyed by the remaining members of the HUB and a claim of maintenance was made against the said HUF for having obtained her deceased husband's share by survivorship. This is a simple case where her husband is alive and till his death both husband and wife lived happily and no claim of maintenance was ever made against the husband and after the death of the deceased intestate succession opened and by virtue of Sections 6 and 8 of the Hindu Succession Act the wife inherited half share of the property left behind by the deceased and the other half having been inherited by their adopted son. We therefore reject the contention that the wife" would have a claim of maintenance against the coparcenery property as such. Para 304 of Mulla's Hindu Law which was relied upon by the learned counsel of the accountable person speaks of maintenance of dependant family members. A wife would become a dependant under Section 21 of the Act only after she becomes a widow and she would be entitled to maintenance only when she does not obtain any share from the property of her husband. Therefore the position contemplated in the quoted para visualises a situation where the succession opens out but does not take in a situation where the question of succession does not arise as yet. If we keep in mind the distinction between wife and widow then we can clearly understand whom the author was referring to in para 304. Para 304 clearly points out the maintenance claim of a widow but not the so-called maintenance claim of a wife. Ultimately we are inclined to hold that a wife cannot have any right of maintenance against the coparcenary property. Therefore, the contention which is sought to be impressed on us does not appear to be impressive or tenable under law. Under the circumstances, we have to hold that Leelavathamma's case decided by the Andhra Pradesh High Court in Smt. P. Leelavathamma's case (supra) which was followed by a later Division Bench decision of the same High Court in Smt. A. Suhasini v. CED [1984] 145 ITR 220 clearly governs the facts of the case and therefore the question of law which we have permitted to raise before us is ultimately found to be without force and hence the appeal is dismissed.