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1. This is a reference made by the Appellate Tribunal under Section 64(1) of the Estate Duty Act, 1953. The question referred is:--

"Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the deceased had no interest in the 2/3rd of the Hindu undivided family properties? If not, whether her interest was 1/6th of the total Hindu undivided family assets?"

2. There was a Hindu undivided family consisting of D.P. Halwasiya, his two wives Tribeni Devi and Anari Devi, a son and three daughters. D.P. Halwasiya died on December 22, 1957. Thereafter, Tribeni Devi died on December 5, 1958. This reference is concerned with the estate duly payable on the death of Tribeni Devi.

Explanation 1.-- For the purposes of this section the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not."

8. D.P. Halwasiya had at the time of his death an interest in the coparcenary property. He left surviving him two widows and three daughters. They are female relatives specified in Class I of the Schedule. Therefore, his interest in the coparcenary property devolved by intestate succession and not by survivorship. What was the extent of his interest ? According to Explanation 1 to Section 6, his interest must be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. Under the Hindu law, if a partition of coparcenary property takes place, the husband, the wife and the sons are entitled to a share. A wife cannot herself demand a partition, but if a partition does take place between her husband and a son she is entitled to receive a share equal to that of a son, (Hindu Law 13th Edn. p. 365, paragraph 315). The expression "wife" in relation to sons Includes their step mother, (Hosbanna v. Devanna, ILR 48 Bom 468 - (AIR 1924 Bom 444)) and it would be seen that where there Is more than one wife, each wife is entitled to a share equal to that of a son. See Dular Koeri v. Dwarka Nath, (1905) ILR 32 Cal 234. And a son is entitled to a share equal to that of the father (Mulla, ibid page 369 paragraph 321). Consequently, upon the notional partition contemplated by Explanation 1 to. Section 6, the coparcenary property would have to be divided equally between D.P. Halwasiya, his two wives and his son, the daughters having no share upon partition. Therefore for the purposes of Section 6., D.P. Halwasiya, must be taken to have enjoyed a one fourth share in the property. This one fourth interest in the property devolved by intestate succession. Section 10 declares:--

"The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:--
Rule 1.-- The intestate's widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2.-- The surviving sons and daughters and the mother of the intestate shall each take one share. ........."

According to Rule 1, both the widows of D.P. Halwasiya together take one share. The son and three daughters each take one share. There are five shares in all. Therefore, the two widows together take a one fifth share. And Tribeni Devi, as one of the two widows, was entitled to a one-tenth share. She was entitled to a one tenth share in the interest of D.P. Halwasiya in the coparcenary property. As that interest amounted to a one fourth share in the coparcenary property, Tribeni Devi took a one fortieth share in the coparcenary property. That was the extent of the share taken by Tribeni Devi as her husband's heir pursuant to Section 6 of the Act.

9. Now, as we have shown one-fourth of the coparcenary property representing the interest of D.P. Halwasiya was carved out for the purpose of intestate succession. The balance of the coparcenary property, representing three-fourths of the original property, continued to remain joint. It continued as coparcenary property. Can it be said that Tribeni Devi enjoyed any interest in that property? Upon D.P. Halwasiya's death the Hindu undivided family consisted of the two widows, the son and three daughters. The son undoubtedly had an interest in the coparcenary property. The daughters had none. As regards the widows, they had no interest either. Under the Hindu law, it is only if a partition takes place between the sons that the widowed mother becomes entitled to a share. Her share is then equal to that of a son in the coparcenary property (Mulla, ibid page 366 paragraph 316). The term 'mother' includes step mother. See Saheb Rai v. Shafiq Ahmad, AIR 1927 PC 101 and Har Narain v. Bishambhar, ILR 38 All 83 = (AIR 1915 All 340). So long therefore, as there is no partition between the sons, the widowed mother enjoys no interest in the coparcenary property. In Pratapmull v. Dhanbati Bibi, AIR 1936 PC 20 the Privy Council held that in a suit instituted by a son for the partition of joint family property impleading his mother and other members of the family as defendants the mother does not become owner of the share allotted to her by the preliminary decree until the preliminary decree is carried out and there is a division by metes and bounds. Therefore, a mortgagee suing on a mortgage before the property is actually divided can obtain a valid mortgage decree without impleading the mother. In the present case, in the absence of any partition the widowed mothers could not be said to have any interest in the balance of the coparcenary property remaining joint. Accordingly, we must hold that Tribeni Devi had no interest in the three fourth part of the coparcenary property which remained joint upon the death of D. P. Halwasiya.