Revenue has made this appeal against order dated 24-6-83 of Shri K . S. Rao, Controller of Estate Duty (Appeals) - VIII, Ahmedabad who allowed appeal (statistical purpose) against order dated 25-2-82 of Shri R. B. Bhatt, Asstt. Controller of Estate Duty, Ahmedabad 2. relevant facts, in brief are that deceased Harigangaben K. Nagori died on 19-2-1977, who was widow, being her husband died on 20-2- 71. family of deceased consisted of her husband, two sons and daughter in year 1971 and prior to date 20-2-71 on which day her husband died. Her husband before his death made will dated 21-4-69 vide which he devolved his interest in HUF property which was to devolve on HUF itself, for his two sons and his wife. 3. In view of these facts, it was claimed and contended before Asstt. Controller of Estate Duty that deceased (widow) was not owner of any property and therefore, no property passes on her death, which is to be subjected to estate duty. Reliance was placed on decision in case of CED. v. Smt. Anari Devi Halwasiya AIR 1972 All, 179. Asstt. Controller of Estate Duty did not accept claim of AP and thereby rejected its contention referred to above relying on section 3(2) of Hindu Women's Right to Property Act, 1937 and Hindu Succession Act, 1956 holding therein as under: "In this connection it would be seen that u/s. 3(2) of Hindu Women's Right to Property Act, 1937. widow of member of Hindu Undivided Family is put in place of her husband and her husband's interest is joint family property, though indefinite would vest immediately upon his death in widow. widow who acquired interest of her deceased husband u/s. 3(2) of Hindu Women's Right to Property Act, 1937 and who was possessed of said interest on coming into force of Hindu Succession Act, 1956 becomes absolute owner of estate by option of section 14 of said Act and thus she would have all rights of full owner to possess, manage and enjoy exclusively and of disposal either by any Act, inter vivos or by will said estate. On her death intestate, her interest in family properties would pass and devolve by succession on her heirs to that extent it would be required to be included in estate liable to pay duty under Estate Duty Act." In any case, widow having become absolute owner of share which she inherited from her husband, would be competent to dispose it of it being incident of full ownership, and therefore, her interest would be deemed to be property passing on her death u/s. 6 of E. D. Act. widow member of Hindu Undivided Family is put in place of her husband and husband's interest in HUF property though indefinite, would vest immediately upon his death in his widow. widow who acuired interest of her deceased husband u/s. 3(2) of Hindu Women's Right to Property Act, 1937 who was possessed of said interest on coming into force of Hindu Section Act, 1956 become absolute owner of estate by operation of section 14 of later Act and thus she would have all rights of full owner and would be competent to disposes it of which is and incident of full ownership. Therefore, her interest would be deemed to be property passing on her death u/s 5 or sec. 6 of E. D. Acts. right which has been given to Hindu woman under 1937 Act is also in lieu of partition, and therefore, if national partition were to take place shortly after her husband's death she would be entitled to share. 4. From above discussion, it would be seen that under provision of section 3(2) of Hindu Women's Right to Property Act, one half of her undivided interest of her deceased husband in HUF property passed to her s widow's estate. provisions of sec. 14(1) of Hindu Succession Act, 1956 are also applicable, and so share which she acquired, is acquired as absolute owner and that share vested in her as full owner which passes on her death as property passing liable to be assessed u/s. 5 or sec. 6 of E. D. Act. These above views are supported by Gujrat High Court decision in cases of Suketu Jayantilal Shah v. CED [1975] 100 ITR 439, Goswami Vrajraiji Ranchhodlalji Maharaj v. CED [1978] 112 ITR 851 and Sarabhai Tribhuvandas v. CED [1981] 130 ITR 326. 5. Under circumstances 1/2 share of HUF estate which decesased lady inherited from her husband, is deemed to pass under E. D. Act. 6. In appeal, CED (Appeals) in allowing appeal held that female members of joint family have no interest in properties of HUF and it is only when there is actual partition that they would get share in said property, that as there is no pre-existing right over joint family property, question of her interest in joint estate passing on her death does not arise, that further she is also not coparcener and there is also no censer of any interest in family property, that cases reliled upon by Asstt. Controller of Estate Duty are not applicable to facts of case as in all these cases, husband expired before Hindu Succession Act, 1956 came into force, that provision of Hindu Women's Right to Property Act, 1937 will not be applicable as in case death of deceased husband took place in 1971, she could not be constructed to have become absolute owner of undivided interest, of her deceased husband, in HUF property. Reliance was place don decision of Allahabad High Court in case of Smt. Anari Devi Halwasiya (supra) that under Hindu Law, female did not have any interest in joint family property and further she cannot claim her share nor can she demand partition to determine her share in joint family property, it cannot be said that female member of joint family has any vested right over property belonging to HUF, that in other words, though mother is entitled to share when sons divide family estate between themselves, she cannot be recognized as owner until division is actually made, she having no pre- existing right in estate except right to maintenance. Reliance is also placed in case of CED v. Estate of Late Smt. K. Narasamma [1980] 125 ITR 196 (AP). Thus, on aforesaid reasons, he held that on death of deceased, no property passes which is subject matter of Estate Duty Act. He further held that assuming other wise that deceased's interest in HUF which is liable to duty, then only 1/3rd of joint family property should be charged to duty. However, in deciding rate at which duty is to be charged, he held that as deceased's interest, even assuming that it is liable to duty, cannot be considered as coparcenery interest, she not being coparcener, there is no question of invoking provisions of sec. 34(1) (c) of Act. Assuming otherwise, deceased's interest in joint family property is not liable to be included in principle value of estate, inclusion of value of interest of liable descendants for rate purpose will not be justified, as it is only when coparcener interest is charged to duty that provisions of Act providing for aggregation can be invoked. Thus, on there reasons he directed Asstt, Controller of Estate Duty to re-compute estate duty liability after refusing order of assessment on lines indicated and mentioned in his order. 7. Revenue being aggrieved with order of Controller of Estate Duty (Appeals) has preferred this appeal. In supporting appeal, learned Departmental Representative Shri Jani contends that CED (A) erred in holding that interest of deceased in HUF did not pass on death and therefore, he should have confirmed assessment order on issue. Reliance is placed on Hindu Succession Act, 1956 in particular section 6, and Section 14 and Schedule I contending therein that on death of husband of widow, there is deemed partition of HUF of which husband of widow is coparcener and widow and daughter or daughters are members, and therfore, widow shall have share as legal heir to her deceased husband under Hindu Succession Act and in accordance with Schedule therein where widow is Class-I heir under Schedule I attached to Hindu Succession Act; wife is member of HUF of husband and is having pre-existing right of maintenance even prior to coming into force of Hindu Succession Act, 1956. Thus, her position prior to Hindu Succession Act was that of member of HUF and not its coparcener but she was member of HUF entitled to maintenance and hence was having per-existing right of which she has become full owner on commencement of Hindu Succession Act, 1956. Thus with coming into force of Hindu Succession Act in year 1956, position of female member (the mother, widow, and daughter) is not same rather she is as sons are on death of coparcener, husband and father. Reliance is placed in case of Gurupad Khandappa Magdum v. Hirabhai Khandappa Magdum [1981] 129 ITR 440 (SC) also. On other hand, shri Shah, learned counsel for assessee, contends that Hindu Women's Right to Property Act, 1937 does not help as same is repealed by Hindu Succession Act, 1956 that Hindu Succession Act dies not make widow coparcener, and therefore, she cannot her property of HUF 's partitioned and as such question does not arise to pass any right or property on her death for purpose of Estate duty Act. Further Hindu Succession Act provides to dispose of property by male Hind by way of will and in this case, husband of deceased (widow) has made will by which property was disposed of on HUF to which he belonged as coparcener and widow was there as its member merely. Therefore, sec. 14 of Hindu Succession Act in not applicable to this case. Reliance is placed on decision of Allahabad High Court in Smt. Anari Devi Halwasiya's case (supra). He distinguished cases relied upon by learned departmental Representative and Asstt. Controller of Estate Duty mentioned above and relied on order of controller of Estate Duty (Appeals). 8. We have heard rival contentions at length and gone through record before us. wide issue for our determination is status of Hindu female in HUF and specific of limited issue is statues of Hindu widow in HUF and her right on death of her husband, who was coparcener in caparcenery. 8.1 contention of learned counsel for assessee is that Hindu female was having no right in caparcenery or in HUF of her husband. She was merely entailed to maintenance and in lieu of it she cannot get partition of caparcenery assets or properties or have any charge for it on its assets or HUF property of her husband. Her position or status is not changed even up to date of coming into existence or in force of Hindu Women's Right to Property Act, 1937 or Hindy Succession Act, 1956. Therefore, no property at all passes on her death for purpose of Estate Duty Act, 1953. learned counsel further contended that Hindu formal or woman is in HUF or Hindu caparcenery even to-day as she was living and treated in Hindu Social System created by Manu and his laws and also maintained and governed by Hindu Laws. Thus, in this situation of matter, we have to look to Hindu Social System and laws governing it, to determine right of Hindu female and widow on death of her husband coparcener in Hindu caparcenery or HUF. 9. Manu is law giver to given and control Indian society and in particular Hindu way of life in his days and for thousand years thereafter. He gave four Varnas to Hindu society or community in India - Brahman, Kashitreya, Vaish and Shudra. Every indian knows that rights and duties of each Varna were different from and for each other. On account of this situation came in Indian Hindu Society or Hindu community that fourth Varna had no right rather obligations and duties, resulting in, to be known as untouchable, who are to-day known as Scheduled Castes. Thus 1/4th of Hindu community became untouchables, whose shadows were avoided by other Varna and they were worst than animals, as everybody is aware that cows, Goats, Snakes, Lions, etc. were worshipped in their temples and while they were not allowed to enter therein. condition of Hindu female was not better than that of fourth Varna. untouchables were allowed to have their own God or Goddess and worship him or them, while she was having no God, or Goddess, except her own husband. So she was property of her husband to be treated just as beast of burden or to be his slave for all purposes. 9.1 However, it is known fact that if she is there in house of Hindu male obeying and serving her husband, then she is to be maintained. Thus, under Manu laws, Hindu female was living in family or joint family observing Varna and her husband as God where head of family was supreme and was known as Karta and family as Hindu Joint Family or HUF. 9.2 Thus, in this family, Hindu female-wife, widow, daughter, daughter- in-law were there to be maintained as its members if they served and act as laws of Manu or Hindu Law and customs say to them to act and do, then only they were entitled to be kept and maintained in family. 10. When this was law and customs of Hindu society, then naturally Hindu female was taken as inferior to Hindu male. This joint Hindu family of account of this concept took shape of Hindu caparcenery, where males were coperceners or co - owners or co-sharers of its assets: since their birth or conception in womb, entitle to have share in properties of caparcenery or HUF. head of family was its Karta and Supreme Manager, who can dispose of property for legal necessity or for benefit of coperceners. 10.1 Thus, Hindu caparcenery is limited term and is there if husband and wife are in family of performance of Hindu marriage under Hindu Law, customs, ceremonies and rites resulting in birth of son. If son is not there, then there is no Hindu caparcenery: though in their family daughter or daughters are there, So, when to married Hindu male (husband) and Hindu female (wife) there is no son and there is daughter or daughters then family is HUF or joint Family, consisting of husband wife and daughter or daughters. Therefore, HUF is having very wide meaning than that of Hindu caparcenery; while family and joint family or HUF are having separate concept. family of Hindu male is there if he is married to Hindu female in accordance with Hindu ceremonies and rites under Hindu Laws of marriage. I n other words, single person male or female does not constitute Hindu family. Joint Hindu Family or HUF is there if there is female issue and it becomes Hindu caparcenery if there is male issue, son. Reliance can be placed on cases in C. Krishna Prasad v. CIT [1974] 97 ITR 493 (SC) and CED v. Alladi Kuppuswami [1977] 108 ITR 439 (SC). 10.2 In HUF or Hindu caparcenery, Hindu female was its member, while Hindu males were caparcenery or co-owners or co-shares, who were having right of partition of Hindu caparcenery and Hindu HUF. Hindu female was there as its member, having merely right to be maintained if she performs duties; as we have mentioned above. Thus, she was not having right of partition if neglected or turned out. 10.3 Therefore, from aforesaid facts, there is no doubt in our mind that status or position of Hindu Societies was worst than forth Varna of Hindu Society Sudra and she was there just as slave or servant to be maintained and kept in lieu of services to master, caparcenery. 11. This was her fate under Hindu Society and Manu Laws or Hindu Laws. It is she who created caparcenery and its caparcenery, nursed and; piled after the,; but in reward to her, she was taken in it to create or produce and bring up caparcenery of Hindu coparcenery. Her condition on account of such position and thinking of Hindu male, Hindu society and caparcenery of Hindu coparcenery, became so bad that all types of ceremonies ordeals came into existence in Hindu community or society namely that of Sati and Devdasi and crossing into fire to prove her purity. 11.1 However, out of Hindu society and coparceners of coparcenery, few started thinking that treatment to Hindu female by Hindu male is blot on society and their faces. Therefore, they started to reform Hindu society and its laws, customs and cermonies. result of it was that after long period, Hindu Society and its reformers and thinkers like Ram Mohan Roy came to conclusion that Hindu female or woman is to be treated if not equal to male Hindu then at least better. Thus, during days of British Rule or Raj these reformers pleaded for reforms in her status and therefore laws were made in her favour and there came Hindu Women's Right to Property Act 1937. Hindu Women's to property Act, 1937 gave interest or right in HUF property which became charge or overriding title on HUF properties or coparcenery property and also right to her such property-partition, as Hindu male (coparcener) can get it. With passage of time it was recognized and pronounced by court that if she is maltreated or not properly maintained, then she can get such property partitioned. On account of this, she became safe and secured as she had get vested right in coparcenery property though she was there as its member but her right and interest became encumbrance or overriding title on coparcenery property or its assets. Accordingly, Hindu Society and Hindu Law accepted it and allowance of maintenances was recognized by laws of Society as her vested right in coparcenery and HUF properties. Hence she was entitled to have it through established procedure of law which allowed it in partitioning of coparcenery property on special facts and circumstances and equal to coparcener, as her share in lieu of her interest, right and maintenance allowance. 11.2 Thus, from aforesaid facts, it is manifest that she was in Hindu society not at all equivalent to Hindu male; since its existence or day of Manu and to that of Hindu Women's Right to Property Act, 1937. 12. Realizing this, leaders of India (Members of Parliament) under leadership of late Prime Minister Pandit Jawaharlal Nehru thought to bring Hindu female equal to Hindu male on attaining and dawn on Independence; where system of justice and laws were prescribed and made under constitution of India. Chapter on fundamental rights in constitution of India says that there should be no discrimination amongst citizens of India on account of sex and they are equal before law. Accordingly, Hindu code Bill was framed by father of Constitution - Dr. Babasaheb Ambedkar, who was Hon'ble Law Minister in Cabinet of Pandit Jawaharlal Nehru. Hindu code Bill was not accepted and opposed, hence was not enacted. Therefore via media was found in getting it into parts and one of these parts is Hindu Succession Act, 1956. Therefore, we have to see position of Hindu female in Hindu Succession Act, 1956. For this purpose, we have to look to it and in particular to its sec. 6, 8, Schedule, Class - I and Class - II and sec. 9 & 14. "Sec. 6 When male Hindu dies after commencement of this Act, having at time of his death interest in Mitakshara coparcenery property, h i s interest in property shall devolve by survivorship upon surviving members of coparcenery and not in accordance with this Act. Providing that, if deceased had left him surviving female relative specified in Class - I of Schedule or male relative, specified in that class who claims, though such female relative, interest of deceased in Mitakshara arcenery property shall devolve by testamentary or intestate succession, as case may be, under this Act and not by survivorship. Sec. 8 "The property of male Hindu dying intestate shall devolve according to provisions of this chapter: (a) firstly, upon heirs, being relatives specified in class I of Schedule; (b) secondly, if there is no heir of class I, then upon heirs, being relatives specified in Class II of Schedule: (c) thirdly, if there is no heir of any of two classes, then upon agents of deceased; and of deceased; and (d) lastly, if there is no agnate, then upon cognates of deceased Schedule (see sec. 8) Heirs in class and class II" Class I "Son; daughter; widow; mother, son of predeceased son; daughter of predeceased son; son of predeceased daughter; daughter of predeceased daughter; widow of predeceased son; son of predeceased son of predeceased son; daughter of predeceased son of predeceased son; widow of predeceased son of predeceased son." Class II" "I Father II (1). Son's daughter's son, (2). son's daughter's daughter, (3). brother (4) sister. III (1) Daughter's son's son. (2) daughter's son's daughter (3) daughter's daughter's son (4) daughter's daughter's daughter. IV. (1) Brother's son, (2) sister's son (3) brother's daughter (4) sister's daughter. V. Father's father; father's mother. VI. Father's widow; brother's widow. VII. Father's brother; father's sister. VIII. Mother's father; Mother's mother. IX. Mother's brother; mother's sister. Sec. 9 "Among heirs specified in Schedule, those in clause I shall take simultaneously and to exclusion of all other heirs; those in first entry in class II shall be preferred to those in second entry; those in second entry shall be preferred to those in third entry; and so on in succession." Sec. 14 "(1) Any property possessed by female Hindu, whether acquired before or after commencement of this Act, shall be held by her as full owner thereof and not as limited owner. Explanation: In this sub-section, 'Property' includes both movable and immovable property acquired by female Hindu by inheirtance or devise, or at partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether relative or not, before at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under will or any other instrument or under decree o r order of civil court or under award where terms of gift, will or other instrument or decree, order or award prescribe restricted estate in such property." 13. From aforesaid sections, it is clear that HIndu female is brought equal to Hindu male tough reasonable restrictions or limitations are still there name, Hindu female during lifetime of such coparceners having interest in coparecenary property cannot ask for its partition though Hindu male who is coparcener therein can claim it at any time. However, she will be entitled to her own share and that of coparcener on his death in coparcenery property of her father and husband. proviso to Explanation 1 of section 6 days that on death of coparcener, there will be deemed partitioned which means that on death of coparcener, there will be partition of coparcenery and also of interest deceased coparcener simultaneously by immediately on death such coparcener as if it had happened in lifetime of such coparcener, among members of coparceneries and heirs of deceased, which are there in Scheduled class I & II stated above. Thus, from section 6, there is no doubt in our mind that Hindu female in coparcenery is co-share or coparcener in coparcenery and in interest of Hindu coparcener as heir who is her relative namely father, husband, brother etc. and shall share in such interest on his death in accordance with Schedules I & II referred to above. 14. When this is position under Hindu Succession Act, 1956, them she is coparcener in coparcenery and heir to share or interest of deceased coparcener related to her as mentioned in Scheduled I & II (supra). Therefore, on commencement of Hindu Succession Acts, 1956 her status is that of coparcener and her interest in coparcenery or HUF is increased both in quality and quantity and quantity. disposal of interest of share by deceased coparcener by will is meaningless in view of deemed partition of coparcenary and this partition is there as if it was caused during his lifetime or immediately before his death. Therefore, she on account of it, has become full owner of this share in coparcenary as member and as heir in interest of deceased coparcener. And therefore has vested in her making her its full owner. Therefore, it cannot be taken away by will of deceased coparcener; since will is to be given effect to after death of deceased coparcener and it cannot be given effect to in view of fact after death, deceased wars having no property in coparcenary being vested in heirs of deceased, on property in coparcenary being vested in heirs of deceased on account of deemed partition of coparcenary during life of deceased coparcener and such partition is on account of this fiction as if it was there during lifetime of deceased hence deceased has nothing to dispose of bequeathed by way of will. Therefore, there is no substance in contention of learned counsel for assessee, when he says that deceased coparcener has devolved his share or interest in coparcenary by way of will as deemed partition which is not actual partition. Further, section 14 has made her full owner of interest; or right provided to her under section 3 of Hindu Women's Right to Property Act, 1937, and right to maintenance under Old Hindu Law. Therefore, it cannot be accepted that she was not having any pre-existing right or she was not at all co-owner or shareholder in HUF or coparcenary property. Thus, Hindu female is coparcener in Hindu coparcenary or HUF having same rights which were there of coparcener before commencement of Hindu Succession Acts, 1956 on account of its sections referred to above and it is to be there on account of partition provided u/s 171 of Income-tax Act, 1961. vide which member of HUF can apply and ask for partition to ITO. ancestral property and coparcenary property or HUF property cannot be disposed of by will or any other device debarring Hindu female to have her share in it as we have mentioned above. Only self acquired property by Hindu male if at all can be disposed of at most, by such device namely will etc. Furthermore, it cannot be held on account of plea that on commencement of Hindu Succession Act, 1956 Hindu Women's Right to Property Act, 1937 is repealed and, therefore, on commencement of HIndu Succession Act, there was no right vested in her or there was no pre- existing right and as such section 14 is of no help to her. reason is that no doubt that Hindu Women's Right to Property Act, 1937 is repealed on commencement of Hindu Succession Act, 1956 but right which was given to her under Hindu Women's Right to Property Act, 1937 has not been taken away by Hindu Succession Act, 1956; rather same is extended. Reliance can be placed on section 6 of General Clauses Act, 1987. Therefore, on commencement of Hindu Succession Act, 1956 right which was there with Hindu female or woman under Hindu Women's Right to Property Act, 1937 is there and is extended vide section 14 of Hindu Succession Act and this right (vested right on per existing right) cannot be taken away either by will or by section 30 of Hindu Succession Act. We are supported in our aforesaid view by decision of their Lordships o f Hon'ble Supreme Court in case of Gurupad Khandappa Magdum (supra) where their Lordships held as under: "In order to ascertain share of heirs in property of deceased coparcener of HUF it is necessary, in very narrate of things, and as very first step, to ascertain share of deceased in coparcenary property. For, by doing that alone can one determine extent of heir's share. Explanation 1 to sec. 6 of Hindu Succession Act, 1956, resort to simple expedient, undoubtedly fictional, that interest of Hindu Mitakshara coparcener 'shall be deemed to be' share in property that would have been allotted to him if partition of that property had taken place immediately before his death. What is therefore, required to be assumed is that partition had in facts taken place between deceased and his coparcener immediately before his death. That assumption, once made, is irrevocable. In other words, assumption having been made once for purpose of ascertaining share of deceased in coparcenary property, one cannot of back of that assumption and ascertain share of heirs without reference to it. assumption which stature requires to be made, that partition had in fact taken place, must permeate entire process of ascertainment of ultimate share of though all its stages. To make assumption at initial stage for limited purpose of ascertaining share of deceased and then to ignore it for calculating quantum of share of heirs is truly to permit one's imagination to boggle. All consequences which flow from real partition have et be logically worked out which means that share of heirs must be sacertained on cases that share of heirs must be ascertained on basis that they had separated from one another and had received share in partition which had taken place during lifetime of deceased. allotment of this share is not process step devised merely for purpose of working out some other conclusion. It has to be treated and accepted as concrete reality, something that cannot be recalled just as share allotted to coparcener in actual partition can not generally be recalled. inevitable corollary of this position is that heir will get his or her share in interest which deceased had in coparcenary property at time of his death, in addition to share which he or she received or must be deemed to have received in notional partition. This interpretation of provisions of section 6 of Act will further legislative intenting regard to enlargement of share of female heirs qualitatively as well as quantity." 15. word 'possessed' in section 14 referred to above is used in broad sense and in its widest connotation and as pointed out by Supreme Court in Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva [1959] supp1. 1 SCR 968. In this decision their Lordships of Supreme Court interpreted word 'possessed' means "the state of owning or having in one's hand or power." It need not be actual or personal occupation of any property by female but may be possession in law. Thus, it may be actual or constructive or in any form recognized by law. Therefore, we hold that when right to maintenance is there for Hindu female in HUF property of in coparcenary property, then she has become full owner of it or she is having pre- existing right in coparcenary property on coming into force Hindu Succession Act and therefore, has come equivalent to male Hindu; though she is not having right got get HUF property or Hindu coparcenary partitioned. But it does not mean that she has no right to safeguard her interest in coparcenary as we have mentioned above by taking action under established procedure of law prevailing in our country and therefore, if there is partition of Hindu coparcenary property by its coparcener, then she can claim her share equivalent to coparcener if she is its member and comes in their row as is created by Schedules I & II under Hindu Succession Act. Reliance can also be placed on decision of their Lordships of Hon'ble Supreme Court in case of Kalloomal Tapeswari Prasad (HUF) v. CIT [1982] 133 ITR 690, 702" may be as regards persons who are members of family or as regards to properties which belong to it". Thus, from aforesaid finding of their Lordships, it is clear to us that effect of partition of HUF, whether by action of coparcener or by operation of law, is same namely, that properties of erstwhile HUF come thereafter to be held by various legal heirs as tenants in common. In order to bring about disruption of HUF, under Hindu Law, as has been emphasized by their Lordships of Supreme Court in Kalloomal Tapeswari Prasad (HUF)' s case (supra), it is not at all necessary that proprietors, in question, must be divided by metes and bounds before partition of family can be said to have been effected. Further as we have already mentioned, that section 171 of Income- tax Act, 1961, provides for partition of HUF properties or assets if so demanded and asked for by its members-the female. Thus, when this is so, we do not see any substance in contentions of learned counsel for assessee referred to above and therefore we reject these and accept those of learned Departmental Representative being well- founded and supported by aforesaid decisions of Hon'ble Supreme Court, and vide section 171 of Income tax Act, 1961. cases relied upon Court, and vide section 171 of Income tax Act, 1961. cases relied upon by learned counsel for assessee are of no help in view of decision of Hon'ble Supreme Court referred to above. decision of Allahabad High Court (supra) cannot be acted upon or followed as we have followed decision of Hon'ble Supreme Court which is final authority of law of land on issue and is contrary to decisions of their Lordships of Supreme Court (supra). 16. Now we come to issue that whether share is there of Hindu female in interest of Hindu coparcener who before death has devolved it by will and thereby debarred Hindu females, widow and daughters to have it. This cannot be held valid devolution or disposition or transfer of movable or immovable property of HUF by its coparcener of his interest in coparcenary at time of death or before death, being contrary to provision of law as we have already view vide which she has become full owner and co-owner having pre-existing right under Hindu Women's Right Act. in property of HUF or Hindu coparcenary being member in it and was entitled to maintenance undue old Hindu Law and, therefore, she is its absolute owner and co-owner or coparcener thereto as we have already mentioned above and as such she cannot be debarred from it by device namely will. Therefore, we also reject contention of learned counsel for assessee that deceased made will vide which property in respect of his interest in Hindu coparcenary has one to his HUF consisting of sons, daughter. Therefore she (widow) did not had any property on death of her deceased husband and as such no property passed or passes on her death for purpose of estate duty. Accordingly, we further hold that on death of her husband, she become in equal share to coparcener she is also entitled to have share determinable as per Schedule I appended to Hindu Succession Act in his interest in coparcenary of HUF as mentioned above. Because partition of deceased coparcenary or HUF or succession simultaneously is thereon death as if it has taken place during lifetime. Hence she became full owner de facto and de jure on day of death of deceased coparcener being member of coparcenary in which deceased was coparcener, which had actually partitioned on account of deemed partition during his life u/s 6. And, therefore, her share in coparcenary is increased in quality and quantity and as such it cannot be taken away or transferred by any will or any other device made by deceased during his life, to dispose it of; since her share has been vested in her and she has become full- fledged owner of it as we have already stated above. 16.1 We have also mentioned above that her husband died on 20-2-1971 and family consisted of deceased, two sons and daughter at time of h i s death being admitted position, therefore, she had 1/4th share in property or share of her husband in HUF property or Hindu coparcenary. We have already mentioned that self-acquired property can be disposed of by way of will and if such property has gone to hotchpotch of HUF or to Hindu coparcenary, then there is no question of self-acquired property by Hindu male or coparcener and as such if interest in HUF or coparcenary property is disposed or by will or agreement or any other device, then it cannot be held that Hindu female is not entitled to share in interest of deceased Hindu male or coparcener in HUF coparcenary. Accordingly, we hold that she had 1/4th share in HUF property and also share in interest of her deceased husband in HUF property. Since we have held that she was full owner of it on death of her husband and therefore, it passed and passed on her death and as such is subject-matter of estate duty. 17. In view of our above discussion and reasons thereto, we hold that Hindu female who was member of coparcenary or HUF entitled under old Hindu Law and Hindu Women's Right to property Act to maintenance and vested rights in HUF or Hindu coparcenary became full owner of such rights on coming into force of HIndu Succession Act, 1956 and therefore, she is entitled to be treated as coparcener heir in equal with coparcener on death of Hindu coparcener as she will get her share (assets) of coparcenary properties and also in interest of deceased coparcener husband or father and other relatives determinable in accordance with Schedules I & II of HIndu Succession Act, 1956. In this case, her share in interest of deceased husband is 1/4th and therefore, it passed or passes on her death and s such is subject matter of tax u/s 5 & 6 of Estate Duty Act, 1953. Accordingly, we set aside impugned order and thereby modify that of Assistant Controller of 'Estate Duty holding that her share is 1/4th and not 1/2 for Assistant Controller of 'Estate Duty holding that her share is 1/4th and not 1/2 for levy of estate duty under Estate Duty Act, 1953. Hence, he is directed to re- determine estate duty u/s 5 & 6 of Estate duty Act, 1953 accordingly. 18. In result, appeal is partly allowed. Per Shri K. T. Thakore, Accountant Member - I have carefully gone through t h e detailed and elaborate order made by my learned brother. With utmost respect, for reasons which I shall set hereinafter, I am unable to agree with view taken by him. In order to appreciate controversy I shall first set out relevant facts. Smt. Harigangaben expired on 19-2-77 leaving behind two sons Jamnadas and Vipin and daughter. Her husband Kanaiyalal had expired previously on 20- 2-71. Shri Kanaiyalal left will dated 21-4-69. Under said will he bequeathed his undivided interest in all properties of his HUF upon smaller HUF consisting of his two sons Hambadas, Vipin and his wife Harigangaben and he directed his executors to give his undivided interest to HUF of Kanaiyalal Harilal as independent owner thereof. On death of Harigangaben question arise before ACED as to whether any interest of deceased Harigangaben in properties of HUF passed on her death. Asstt, Controller took view that u/s. 3(2) of Hindu Women's right to Property Act, 1937, widow of member of HUF is put in place of her husband and her husband's interest in joint family property would vest immediately upon his death in widow. widow has thus acquired right of her deceased husband under s i d provisions. This right had become absolute right under Hindu Succession Act (HSA) and thus by operation of section 14 of HSA she had right as full owner to possess, manage and echo exclusively entire estate. Therefore, on her death instate her interest in family property would pass would pass and device by succession on her heirs and to that extent such property would be includible in dutiable estate of deceased. That apart according to ACED widow having become absolute owner of her share inherited from her husband she was competent to dispose of it as its full owner and as such such interest would be 'property' passing on death u/s. 6 of E. D. Act. Thus placing reliance on aforesaid provisions and as also on decisions referred to in para 3 of his order ACED held that half share of HUF estate of deceased inherited from her husband was includible in her hands as property deemed to pass on death. He thus included sum of Rs. 85,329, in detectable estate. 2. Being aggrieved A. P. carried matter in appeal before SCD (A.). It was pointed out that Kanaiyalal by will left by him had willed his interest in property to devolve on HUF itself. Therefore, there was no question of by interest devolving by succession. Therefore deceased had no interest in HUF estate as she was not coparcener. She could made such claim only on partition among coparcener. Since there was no partition of family property till her death she had no interest in HUF property and therefore inclusion of aforesaid amount in dutiable estate of deceased was not justified. In this connection reliance was placed on decision in case of Anari Devi Halwasiya (supra). He also referred to decision of their Lordships of Gujrat High Court in CIT v. Shantikumar Jagabhai [1976] 105 ITR 795. It was thus contended that female members' right was contingent right and not vested interest in joint family property and therefore same did not pass on death of female member of family. It was next pointed out that ACED had substantially replied on provisions of WARP 1937. This Act had no application as it stood repealed by HSA of 1956. decisions relied upon by ACED related to per-1956 Act and therefore those decisions have no application. In other words it was contention of AP that position had to be examined with reference to HSA 1956 and in view of Section 30 of HSA permitting member of HUF to will his share in HUF property, devolution of entire estate of HUF itself by will did not create any interest in favour of widow. CED (A) examined above position and observed at para 6 of his order as under: "To sum up, it is seen that female members of joint family have no interest in properties of HUF and it is only when there is actual partition that they would get share in said property. As there is no pre- existing right over joint family property, question of her interest in joint estate passing on her death does not arise. Further she is also not coparcener and there is also no censer of any interest in in family property. and there is also no censer of any interest in in family property. Asstt. Controller's action is assessing deceased's alleged interest in HUF estate as part of principle value of dutiable estate cannot therefore be upheld. addition made of Rs. 85,329 is accordingly deleted." 3. Being aggrieved revenue has come up in appeal before us. rival submissions placed by either side have been set out in order of my learned brother and therefore I do not wish to dilate upon same in detail. 4. In my view reliance placed by revenue on decision of their Lordships of Gujrat High Court in case of Suketu Jayantilal Shah (supra) is clearly misplaced. In that case it is true it was held that u/s. 3(2) of HWRP act, 1937 widow of member of HUF is put in place of her husband and her husband's interests in joint family property, though indefinite, would vest immediately upon his death in widow. widow who acquired interest of her deceased husband u/s. 3(2) of HWRP Act, 1937 and who was possessed of said interest on coming into force of HSA 1956, became absolute owner of that estate by operation of sec. 14 of said Act and thus she would have all rights of full owner to possess, manage and enjoy exclusively and on disposal either by any Act inter virvos or by will said estate. On her death intestate her interest in joint family properties would pass and involve by succession on her heirs and to that extent it would require to be included in estate liable to pay duty under E. D. Act. Now this decision though binding turns on its own facts which are not applicable in present case. In that case one Jayantilal Shah, father of AP expired in 1944. He died in jointness with his wife. Subhadra, two sons and unmarried daughter. U/s. 3(2) of HWRP Act 1937 on demise of said Jayantilal Shah his widow Subhadra acquired said interest in joint family properties which her husband had at time of his death. widow Subhadra died on 14th November, 1959 leaving behind her two sons and one unmarried daughter who along with her constituted joint Hindu family as stated above. Subhadra had not claimed any partition of joint family properties before her death not there was any partition effected amongst said members. above facts would clearly show that provisions of sec. 3(2) of HWRP Act, 1937 applied to Subhadra who became widow before coming into force of H. S. Act, 1956 and it was in these circumstances question of quality and nature of her interest was examined and it was found that her limited interest became absolute interest on coming into force of H. S. Act which she was competent to dispose of as absolute owner under provisions of Sec. 14 of H. S. Act. essential distinction between facts of above case and case before us is that Harigangaben deceased in present case became widow in 1971 on death of her husband Kanaiyalal. Therefore, her rights were not governed by provisions of sec. 3(2) of HWRP Act but would be solely governed by provisions of H. S. Act. Therefore, in my view provisions of sec. 3(2) of HWRP Act has no application in instant case. That apart above case was one of intestate succession and testamentary succession. 5. Having understood this essential distinction in so far as factual matter is concerned we now proceed to examine facts of present case which is solely governed by relevant provisions of H. S. Act. provisions with which we ar concerned are sections 6 & 30 of H. S. Act. scope of these section had come up for consideration before Hon'ble Gujarat High Court in case of CWT v. Kantilal Manilal [1973] 90 ITR 289. At pages 292 and 293 it is stated thus: "But Hindu Succession Act, 1956 made radical departure in devolution of interests of coparcener in coparcenary property on his death. There are two section of Act which speak on this subject, Section 6 and section 30. Section 6 is very material and since determination of question before us turns almost entirely on true interpretation of that section we may reproduce it in full. It reads, omitting portions immaterial: "6. When male Hindu dies after commencement of this Act, having at that time of his death interest in Mitakashara coparcenary property, his interest in property shall devolve by survivorship upon surviving members of coparcenary and not in accordance with this Act: Provided that, if deceased had left him surviving female relative specified in class I of Schedule or male relative specified in that class who claims, through such female relative interest of deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate success on, as case may be, under this Act and not by survivorship. Sec. 30 provides for testamentary succession. Prior to enactment of Hindu Succession Act, 1956 coparcener was entitled to dispose of by will his interest in coparcenary property but now he can do so by reason of section 30." In present as Kanaiyalal died leaving will under which he had bequeathed his interest in HUF to HUF itself and therefore this is clearly case governed by section 30 of H. S. Act. In this connection we may refer to decision of Hon'ble Gujarat High Court in case Of Navnitlal Sakarlal v. CWT [1977] 106 ITR 512. In this case one Sakarlal Balabhai died leaving behind will under which he inter alia bequeated all his right, title and interest in his joint family movable and immovable properties in favour of his two grandsons Navnitlal Sakarlal and Nandkishore alias Shambhubhi Sakardlal. Dealing with scope of sec. 6 and sec. 30 of H. S. Act their Lordships have observed as follows: (pp. 520 & 521) "Under orthodox Hindu Law of testator could not have disposed of his interest in properties of Hindu undivided family by will. However, Hindu Succession Act, 1956, which came into force on and with effect from June 17, 1956, made radical departure in this behalf and since Balabhai, testator in present case died after enactmemnt of said Act, succession to his estate would be governed by provisions of said Act. Now under section 30 of Hindu Succession Act, it is competent for male Hindu to dispose of by will or other testamentary disposition his interest in Mitakashara coparcenary property in accordance with provisions of Indian Succession Act, 1925, or any other law for time being in force and applicable to Hindus. As we shall presently show, devolution of interest in coparcenary properties in this case would be governed by provisions of section 6 of Hindu Succession Act and reference may, therefore be made to provisions of said section. main part of said section provides that when male Hindu dies after commencement of Act, having at time of his death and interest in Mitakshara coparcenary property, his interest in said property shall devolve by survivorship upon surviving members of coparcenary and not in accordance with Act. proviso to said section, however, carves out exception and provides that if deceased had left him surviving female relative specified in class I of Schedule or male relative specified in class who claims through such female relative interest of deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as case may be, under Act and not by survivorship, As already stated testator in present case left him surviving three daughters who fall within class of female relatives specified in class I of Schedule and therefore his interest in coparcenary properties would devolve by testamentary succession under Act since he had executed will. assessee and his brother, therefore became entitled under will to inherit one-half share of deceased in coparcenary properties." In this case deceased had left will. Secondly his case was governed b y provisions of H. S. Act. Thirdly deceased had left female relatives specified in clause I of Schedule of H. S. Act and lastly by testamentary disposition joint family property was bequeated in favour of two grandsons stated above and therefore interest in coparcenary properties devolved by testamentary succession under H. S. Act due to execution of will. 6. In my opinion therefore above decision would equally apply to facts of case before us. In instant case since by testamentary disposition decesased Kanaiyalal had bequeathed his coparcenary interest in favour of HUF itself, by reason of testamentary succession u/s 30 of HA Act, his shares stood devolved on HUF itself and unless there was partition or death of coparcener in new HUF to whom share of coparcenary was bequeathed be deceased Harigangaben would not have right in joint family properties. Therefore, I agree with view taken by CED (A) that no part of HUF properties would form part of estate of deceased Harigangaben. As consequence inclusion of one half share in her hands from HUF property was not justified either in law or on facts of case. 7. In view I have taken it is not considered necessary to determine extent of her share in said property as this question does not fall for consideration. 8. For aforesaid reasons, would dismiss this appeal ORDER UNDER SECTION 63(11) OF ESTATE DUTY ACT, 1958 As there is difference of opinion amongst both of Members in this case and, therefore, we make reference to worthy President of Tribunal under section 63(11) of Estate Duty Act, 1958, for appointing Third Member to settle difference of opinion among us. hence, we frame following questions for determination of Third Member: "1. Whether, property and rights obtained in HUF or Hindu coparcenary by Hindu women-widow, wife and daughter under provisions of Hindu Women's Rights to Property Act (XVIII of 1937 amended by XI of 1938) has been taken away from her on coming into existence of Hindu Succession Act, 1956 due to repeal of Hindu Women's Rights to Property Act, 1937 by it, and if so whether Hindu Succession Act, 1956 has decreased her status and diminished her rights in HUF and hence what is actual status of her in Hindu coparcenary or HUF? 2. Whether Hindu woman has become absolute owner of her existing right of maintenance et. in HUF and, therefore she has attained status of coparcener in it under sections 14, 15 and Schedules I-II of Hindu Succession Act, 1956 if not then what is status of Hindu woman in HUF or Hindu coparcenary? 3. Whether Hindu woman, widow, wife and daughter on account of deemed partition under section 6 of Hindu Succession Act, 1956 is saved from mischief of devises: "Will". etc. made by her deceased husband and father etc. who was having coparcenary interest or interest in coparcenary or HUF; if so whether he is debarred to dissolve share in coparcenary or his interest in HUF belonging to him by making Will, which is to be effected after death; while deemed partition of Hindu coparcenary of HUF took place in his own life u/s 6 of Hindu Succession Act, 1956 in which he - deceased husband was having share or interest as coparcener in Hindu coparcenary or HUF? 4. Whether Hindu woman is merely member in HUF or Hindu coparcenary even on coming into existence of Hindu Succession Act and whether competent to have division of Hindu coparcenary or HUF like coparcener on account of it, as well as under provisions of section 171 of Income-tax Act 1961, as member or coparcener? 5. Whether on facts and in circumstances of case, it can be held that section 30 of Hindu Succession Act is applicable and, therefore, Will made by deceased husband is there to dissolve share or interest of deceased husband in Hindu coparcenary or HUF as coparcener and where she was also there, as its member and if not coparcener on account of Hindu Women's Property Act (XVIII of 1937 amended by XI of 1938), Hindu Succession Act, 1956 and amended section 171 of Income-tax Act, 1961 and if so, then she (widow) was having no asset or immovable or movable property or valuable right to pass on her death?" Per Shri K. T. Thakore, Accountant Member - In my opinion u/s 63 (11) of E. d. Act point of difference is required to be stated. real point of difference in my opinion is "whether on facts and circumstances of case inclusion of half share of deceased in HUF estate inherited from her husband was includible in her hands property passing or deemed to pass on her death, sum being Rs. 85,329". In my opinion above comprehensive question would fairly cover point of difference and I would therefore refer above question for opinion of learned Third member. THIRD MEMBER ORDER Per Shri Y. Upadhyaya Vice President - point of difference under section 63 (11) of Estate Duty Act had been assigned to Third member by Hon'ble President. it will be fair to state that two members have differently framed point of reference to Hon'ble President. Therefore, it would be necessary to formulate common question arising out of difference which could be answered by Third Member. questions formulate by Judicial Member are as follows: "1. Whether property and rights obtained in HUF or Hindu coparcenary by Hindu coparcenary be Hindu woman, widow, wife and daughter under provisions of Hindu Women's Rights to Property Act (XVIII of 1937 amended by XI of 1938) has been taken away from her on coming into existence of Hindu Succession Act, 1956 due to repeal of Hindu Women's Rights to Property Act, 1937 by it; and if so whether Hindu Succession Act, 1956 has decreased her status and demised her rights in HUF and hence what is actual status of her in Hindu coparcenary or HUF?" 2. Whether Hindu woman has become absolute owner of her existing right of maintenance etc. in HUF and therefore, she has attained status of coparcener in kit under sections 14, 15, and Scheduled I - II of Hindu Succession Act, 1956 if not then what is status of Hindu woman in HUF or Hindu coparcenary? 3. Whether Hindu woman, widow, wife and daughter on account of deemed partition under section 6 of Hindu Succession Act, 1956 is saved from mischief of devises: "Will" etc. made by her deceased husband and father etc. who was having coparcenary interest or interest in coparcenary or HUF. if so whether he is debarred to dissolve share in coparcenary or his interest in HUF belonging to him, by making Will, which is to be effected after death, while deemed partition of Hindu coparcenary of HUF took place in his own life u/s 6 of Hindu Succession Act, 1956 in which he - deceased husband, was having share or interest as coparcener in Hindu coparcenary or HUF? 4. Whether Hindu woman is merely member in HUF or Hindu coparcenary even on coming into existence of Hindu Succession Act and whether competent to have division of Hindu coparcenary or HUF like coparcener on account of it, as well as under provisions of section 171 of Income tax Act, 1961, as member or coparcener? 5. Whether on facts and in circumstances of case, it can be held that section 30 of Hindu Succession Act is applicable and, therefore - Will made by deceased husband is there to dissolve share or interest of deceased husband in Hindu coparcenary or HUF as coparcener and where she was also there as its member and if not coparcener on account of Hindu Women's Rights to Property ACt (XVIII OF 1937 amended by XI of 1938), Hindu Succession Act, 1956 and amended section 171 of Income-tax Act, 1961 and if so, then she (widow) was having no asset or immovable or movable property or valuable right to pass on her death?" question formulated by Accountant Member is as follows: "Whether on facts and circumstances of case inclusion of half share of deceased in HUF estate inherited from her husband was includible in her hands as property passing or deemed to pass on her death, sum being Rs. 85,329?" 2. After considering facts and circumstances of case and point of difference of two Hon'ble Members, it appears that question formulated by Accountant Member will cover up other questions formulated by Judicial Member and, therefore, answer is to be given by Third Member only of question formulated by Accountant Member. 3. fact is that Smt. Harigangaben expired on 19-2-77 leaving behind t w o sons, namely,, Jamnadas and Vipin and daughter. Her husband Kanaiyalal expired on 20-2-71. Shri Kanaiyalal left will dated 21-4-69. By said will he bequeathed his undivided interest in all property of HUF upon smaller HUF consisting of his two sons, Jamnadas and Vipin, and his wife Harigangaben and he directed his executors to give his undivided interest to HUF of Kanaiyalal Harilal as independent owner thereof. Assistant Controller of Estate Duty, on death of Smt. Harigangaben, indicated his intention to include interest of deceased in property of HUF which passed on her death. He took view that under section 3 (2) of Hindu Women's Right to Property Act, 1937, widow of member of HUF is to be in status of her husband and her husband's interest in joint family property would vest immediately upon his death in widow. he was of opinion that widow had thus acquired right of her deceased husband under said provisions and right became absolute under Hindu Succession Act, 1956. He also considered provisions of sections 6 & 14 of Hindu Succession Act, determined value of deceased's interest at Rs. 85,329 and included same in her taxable estate. accountable person in appeal relied on Anari Devi Halwasiya's case (supra) and Shantikumar Jadgabai's case (supra). He also explained various provisions of Hindu Succession Act, 1956. Appellate controller accepted view of accountable person and deleted inclusion of Rs. 85,329. 4. When matter was argued before Tribunal Hon'ble Judicial Member, after considering provisions of section 3(2) of Hindu Women's Right to property Act, 1937, provisions of Hindu Succession Act, decision in Gurupad Khandappa Magdum's case (supra), Sarabhai Tribhuvandas case (supra) and came to conclusion that Assistant Controller was correct in including deceased's interest at Rs. 85,329. 5. Hon'ble Account Member, on other hand on facts and circumstances of case, came to conclusion that provisions of section 3(2) of Hindu Women's Right to Property Act, 1937 was not applicable. he also was of opinion that provisions of section 6 and section 14 of Hindu Succession Act were not applicable on facts of case and he, relying on Smt. Anari Devi Halwasiya's case (supra), Shantikumar Jagabhai's case (supra), came to conclusion that deceased had no right of partition. H e was only eligible for her share on partition of family and, therefore inclusion was not proper. 6. departmental representative, Mr. Khandelwal, very kly supported inclusion of deceased's share in taxable estate on basis of order of Judicial Member. He further supplemented his argument placing reliamce on Gurupad Khandappa Magdum's case (supra), Sarabhai Tribhuvandas case (supra), Suketu Jayantilal Shah's case (supra) and Alladi Kuppusaamy's case (supra). He indicated that right available to deceased was absolute under section 3(2) of Hindu Women's Right to Property Act, 1937 and said right became absolute under Hindu succession Act, 1956. He further stated that Hindu father or Kartha has no right to will and, therefore, property given to HUF through will was invalid. he also indicated that matter has been concluded by Supreme Court in Gurupad Khandappa Magdum's case (supra) and, therefore, amount included by Assistant Controller was fair. 7. Shri Shah, counsel of accountable person, on other hand, stated facts and urged that Shri Kanaiyalal died in 1971. He left will dated 21-4-69. Hindu Succession Act came into force in 1956. Hindu Women's Right to property Act, 1937 was repealed by Succession Act, 1956. Therefore, o n death of Shri Kanaiyalal which took place in 1971, widow was not entitled to any right or interest in property under Hindu Women's Right to Property Act, 1937. He further indicated that even sections 6 & 14 of Hindu Succession Act were applicable only when Hindu male died. Here lady died on 19-2-1977 and therefore, she was not having any right under Hindu Succession Act. he further referred to section 7 of Estate Duty Act and stated that even section 7 is not applicable when female dies. counsel indicated that lady cannot be coparcener and she cannot claim partition in family. He relied on Pushpa Devi v. CIT [1977] 109 ITR 730 (SC). It was opinion of counsel for accountable person at female can get her share when partition takes place in family. counsel distinguished all case's and further indicated that Supreme Court decision in Gurupad Khandappa Magdum's case (supra) was decided on particular fact which is not applicable in case of assessee and assessees's case is assisted by later decision of Supreme Court in State of Maharashtra v. Narayan Rao Sham Rao Deshmukh AIR 1985 SC 716. He further indicated that other decisions cited by departmental representative are before introduction of Hindu Succession Act, 1956 and, therefore, they are not APPLICANTlicable. S h e accordingly justified that inclusion of deceased's interest in taxable estate was not proper. 8. only point for decision is whether on death of Smt. Harigangaben on 19-2-77 her interest in HUF could have been included in her taxable estate. Her husband Shri Kanaiyalal, who was member of HUF her taxable estate. Her husband Shri Kanaiyalal, who was member of HUF expired on 20-2-71. He left will dated 21-4-69. He, according to said will, bequeathed his undivided interest in property to smaller HUF consisting of his two sons, wife, and daughter. His wife Smt. Harigangaben expired on 19-2-77. Therefore, according to will and facts, when Smt. Harigangaben expired on 19-2-77 she was only member of smaller HUF. correct position, according to law, is after death of her husband on 20-2-71 she did not acquire any right under Hindu Women's Right to Property Act 1937 which was repealed in 1956 by Hindu Succession Act, 1956. Further, sections 6 & 14 of Hindu Succession Act were not applicable. It is very clear from section 6 of Hindu Succession Act it is related only to male Hindu and it is not related to female. it is equally correct that female is not coparcener and she does not have right of partition. On question that she is not coparcener rightly case has been stated in Pushpa Devi's case (supra). Hindu female has her right of maintenance and takes her share provided there is partition in family. She cannot by virtue of her right claim partition in family itself. Much had been stated about decision in Gurupad Khandappa Magdum's case (supra). It has been rightly distinguished by assessees's counsel. male died in said case and no will was left. On these facts matter was divided by Hon'ble Supreme Court. In present case female had died and her husband left will, therefore, said decision is not applicable on facts of present case. Assistance is available from later decision of supreme court in Narayan Rao Sham Rao Deshmukh's case (supra). Hayne's commentary on Hindu Law and Usage, 12 editions, is helpful in explaining various provisions which has been considered on coming to this conclusion the interest of lady cannot be included on her death in taxable estate because she was not coparcener. She did not get any right before 1956. will was left by her husband and according to will she became only member of HUF and she was not coparcener. She did not have right of partition. She only had right of her maintenance and she was entitled for her share if partition talk place in family. will of her husband neither has been challenged nor it could be challenged. 9. After considering facts, arguments and various case laws of respective parties, question is answered follows:- "On facts and circumstancess of case inclusion of half of share of deceased in HUF estate inherited from her husband was not includible in her hands as property passing or deemed to pass on her death." matter is referred back to Division bench for passing final order according to majority decision. *** CONTROLLER OF ESTATE DUTY v. VIPIN K. NAGORI