R. S. Pathak, J.

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 rd of the Hindu undivided family properties If not, whether her interest was th 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.

3. The Assistant Controller of Estate Duty determined the extent of the interest held by Tribeni Devi in the Hindu undivided family property. He observed that on the death of her husband she was entitled to a one-sixth share had there been a partition, and that she was also entitled under Section 6 of the Hindu Succession Act, 1956 to share equally with the other members in her husbands interest in the Hindu undivided family property assuming a notional partition. On that basis, he included a th share and a 1/18th share of the family property as the interest passing on her death for the purposes of estate duty.

4. On appeal by the accountable person, the Zonal Appellate Controller expressed the view that the deceased did not have any share in the Hindu undivided family property under the Hindu Womens Rights to Property Act, 1937 and, therefore, on that account the Assistant Controller was wrong in holding her entitled to a th share. But applying Section 6 of the Hindu Succession Act, he held that as the husband upon partition before his death would have been entitled to a rd share in the family property, a th share in this interest devolved on Tribeni Devi, and therefore, she would have been entitled to a 1/18th share in the family property. Two appeals were filed before the Appellate Tribunal, one by the accountable person and the other by the Assistant Controller. During the hearing of the appeals, the Departmental Representative conceded that on the basis of the interest devolving on Tribeni Devi upon her husbands death she was entitled to a 1/30th share of the Hindu undivided family property. The Appellate Tribunal found accordingly. The Appellate Tribunal also held that she did not have any interest in the balance of the family property left after carving out the husbands share. The appeals were disposed of accordingly.

5. It was contended before us on behalf of the Controller of Estate Duty that during the life time of her husband Tribeni Devi enjoyed a share in the property by virtue of the Hindu Womens Rights to Property Act, 1937, that this interest although originally a limited interest known as a Hindu Womans estate became an absolute estate under Section 14 of the Hindu Succession Act. In addition, it is contended, she became entitled to a share in the interest of the husband in the Hindu undivided family property by virtue of Section 6 of the Hindu Succession Act.

6. We have carefully considered the matter, and it seems to us that the position in law is as follows:-

Under the Hindu Womens Rights to Property Act, 1937 no interest could be said to devolve on Tribeni Devi. Section 3(2) of that Act confers an interest on a female in Hindu undivided family property governed by the Mitakshara law only upon the death of her husband. Upon his death, as his widow she is entitled to the same interest in the property as he himself had, it being a limited interest known as a Hindu Womans estate superadded to it is the same right of claiming partition as a male owner. Section 3(2) does not come into play while the husband is alive. Therefore, while the husband is alive a Hindu woman under the Mitakshara law cannot be said to enjoy any interest in the Hindu undivided family property. Tribeni Devis husband died on December 22, 1957, but meanwhile the Hindu Succession Act, 1956 had come into force on June 17, 1956. By Section 6, it provided a rule of devolution of the husbands interest in the coparcenary property which was inconsistent with the corresponding provisions in the Hindu Womens Rights to Property Act. Consequently, by Section 4(1)(b) of the Hindu Succession Act, those provisions of the Hindu Womens Rights to Property Act ceased to apply. Any reference to the latter enactment thereafter became irrelevant. Accordingly, Tribeni Devi cannot be said to have enjoyed any interest in the family property by reason of the Hindu Womens Rights to Property Act, 1937.

7. Did Tribeni Devi acquire any interest in the Hindu undivided family property under the Hindu Succession Act Upon the death of her husband on December 22, 1957 Section 6 came into play. It provides:-

"When a male Hindu dies after the commencement of this act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.

Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule ......... the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be, under this act, and not by survivorship.

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 : A.I.R. 1924 Bombay 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 intestates 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 R.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 husbands 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 enioyed any interest in that property Upon D.P. Halwasiyas 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, A.I.R. 1927 PC 101 [LQ/PC/1927/10] and Har Narain v. Bishambhar, ILR 38 All 83 : A.I.R. 1915 Allahabad 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. A.I.R. 1936 PC 20 [LQ/PC/1935/81] 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.

10. In our opinion, Tribeni Devi had a one fortieth interest and no more, in the Hindu undivided family property at the time of her death. The question referred is answered accordingly. The accountable person is entitled to her costs which we assess at Rs. 200/-. Counsels fee is assessed in the same figure.

Reference answered accordingly.