V. RATNAM J.


During the course of the assessment proceedings, under the provisions of the Estate Duty Act, 1953, for the determination ofjthe principal value of the estate of deceased, K. C. A. D. Gnanagiri Nadar, who died on June 21, 1973, his widow, the accountable person, claimed that her maintenance allowance and the estate duty payable on the principal value of the estate should be allowed as permissible deductions while computing the dutiable estate of the deceased. The Assistant Controller of Estate Duty, Madurai, negatived these claims. On appeal, the Appellate Controller of Estate Duty concurred with the views of the Assistant Controller, relying upon a decision to the Tribunal in Asst. CED v. N. Sundareswaramurthy (E. D. A. No. 22 (MDS)/1972-73 dated April, 1975) and on In re Mrs. Constance Lubeck 1970 (78) ITR 199 (Mad) and V. Pramila v. CED 1975 (99) ITR 221 (Kar). On further appeal, the Tribunal held that the claim for deduction of maintenance made by the accountable person had been rightly negatived. By a subsequent rectification order, the Tribunal rejected the claim of the accountable person regarding the deduction of the estate duty in computing the principal value of the estate, relying upon the decision in V. Pramila v. CED 1975 (99) ITR 221 (Kar).


In this reference, under section 64(1) of the Estate Duty Act, 1953, at the instance of the accountable person, the following two questions have been referred for the opinion of this court :


"1. Whether, on the facts and in the circumstances of the case, the deduction of maintenance allowance claimed by the deceased's widow, is not permissible while computing the dutiable estate of the deceased ?


2. Whether, on the facts and in the circumstances of the case, the estate duty payable by the accountable person is deductible in computing the principal value of the estate of the deceased ?" *


In support of this reference, learned counsel for the accountable person first contended that the accountable person, even during the life-time of the deceased, had two rights : (i) relating to maintenance; and death and that what passed on the death of the husband was his estate less the right of maintenance from the husband. On the other hand, learned counsel for the Revenue, relying upon the general principle of Hindu law relating to maintenance and the provisions of the Hindu Succession Act (30 of 1956) and the Hindu Adoptions and Maintenance Act (78 of 1956), submitted that though the wife might have had a right to be maintained by her husband during his life time, that right had not taken a definite shape or form, in that it had not ripened into a decree or resulted in a charge over the estate of the husband, and that, by the time the property passed a moment after the death of the husband, her right to be maintained ceased and thereafter, the obligation to maintain her as a dependant was statutorily imposed on others under the provisions of the Hindu Adoptions and Maintenance Act (78 of 1956), and even that right was lost to the accountable person in this case, as she had become the sole heir inheriting all the properties of her deceased husband. Strong reliance, in this connection, was placed by learned counsel for the Revenue upon the decision in CED v. P. Leelavathamma 1978 (112) ITR 379 (AP).


There is no dispute in this case that on the death of her husband, the accountable person succeeded as class I heir to all his properties under section 8 of the Hindu Succession Act, 1956 1988 (112) ITR 739, 1977 (6) CTR 128, 1978 (112) ITR 739(AP), which fortifies the above view of ours. In that case, the accountable person claimed deduction towards maintenance expenses of the widow of the deceased from the estate, on the ground that the deceased, during his lifetime, was under a legal obligation to maintain his wife and daughter. The claim for maintenance of the wife was negatived on the ground that the wise, being an heir of the deceased under section 8 of the Hindu Succession Act, is not entitled to separate maintenance after the demise of the husband under section 22(2) of the Act and that so long as the right to maintenance did not take a definite or concrete shape, the right was only personal to her and no right against the property of the deceased would at all arise. We are, therefore, unable to accept the argument of learned counsel for the accountable person that she had two different rights, viz., the right to obtain maintenance and the right to succeed, and that what passed on the death of the deceased, was the estate, less the right of maintenance.


Learned counsel for the accountable person next contended that the analogy of a provision for the marriage expenses of an unmarried daughter in a Hindu family and its deduction as a debt or encumbrance would be applicable and relied on the decision in CED v. Dr. B. Kamalamma 1984 (148) ITR 434, 1984 (18) TAXMAN 113 (Mad). We are of the view that the obligation of the father to perform and spend for the marriage of his unmarried daughter and his obligation his wife, now statutorily provided for under section 19(1) of the Act and other provisions, cannot be viewed on the same footing. the decision relied on was rendered on the basis that the provision for the marriage of a daughter of the deceased can be allowed as a deduction in the computation of the principle value of the estate of the deceased, as it is a debt for which the law imposes a liability on the ancestral properties, which the deceased died possessed of. A claim for deduction from the dutiable estate of the right of maintenance, as we have in this case, governed by thejstatutory provisions, referred to earlier, was not considered there. Besides, in that decision, the liability to provide for the marriage expenses of an unmarried daughter was characterised as one referable to an imposition in that regard by the Hindu law. However, under section 21(v) of the Act, an unmarried daughter, so long as she remains unmarried, would be a dependent and the expression "maintenance" with reference to her would include reasonable expenses of and incidental to her marriage, by reason of section 3(b)(ii) of the Act and if she had obtained a share in the estate of her father under section 8 of the Hindu Succession Act, 1956, the operation of section 22(2) of the Act cannot be excluded. We find that this aspect has not been adverted to. Further, we are not persuaded to hold that the right of maintenance as claimed by the accountable person in this case would be in the nature of a debt or an encumbrance imposed by the Hindu law and within the meaning of section 44 of the Estate Duty Act. The principle of the decision in CED v. Dr. B. Kamalamma 1984 (148) ITR 434, 1984 (18) TAXMAN 113(Mad) cannot, therefore, have any application to this case. On the facts of this case, it has already been seen that there was neither a debt not an encumbrance over the estate of the deceased and, therefore, there is no question of granting any deduction in terms of section 44 of the Estate Duty Act. We, therefore, answer the first question referred to us in the affirmative and against the accountable person.We now proceed to a consideration of the second question referred to us and that relates to the deduction of the estate duty payable in computing the principle value of the estate passing on the death of the deceased. On a plain reading of section 44 of the Estate Duty Act, the expression "debts and encumbrances" prima facie refer to debts and

encumbrances created by the deceased during his lifetime. The other debts and liabilities inclusive of those created by the Estate Duty Act, 1953, would not fall within the scope of the expression "debt" or "encumbrance" occurring in that section. In Rm. Arunachalam v. CED 1981 (132) ITR 871 (Mad), this identical question had been considered and the estate duty payable on the estate of a deceased in the hands of the accountable person has been held to be not an admissible deduction in computing the principle value of the estate passing on the death of the deceased. In view of this, the accountable person cannot claim deduction of the estate duty payable in the computation of the principle value of the estate. We accordingly answer the second question in the negative and against the accountable person. There will be no order as to costs.