JUDGMENT Satish Chandra, C.J.
1. One Ram Swarup died on 19th December, 1971, leaving behind his widow, Smt. Kalawati Devi, and one married daughter, Smt. Usha, to succeed to his estate. The widow, as an accountable person, filed a statement of the estate under the E.D. Act. She claimed that in the HUF properties her husband had a one-third share, which alone passed on his death to herself and her daughter. This plea was repelled. The Asst. Controller held that the deceased was the exclusive owner, and so the entire property passed on his death. The matter was taken up in appeal. The Appellate Controller confirmed the finding of the Asst. Controller. The accountable person took up the matter to the Income-tax Appellate Tribunal. There reliance was placed on Section 6 of the Hindu Succession Act, 1956. The Tribunal held :
" In the present case, the property had come to the family of the deceased on a partition of the bigger HUF. It was, therefore, joint family property and was treated as such in the income-tax assessments. Merely because the deceased was the sole male coparcener in the family, it would not mean that the character of the property underwent any change. The wife had a right to maintenance and certainly the deceased could not have disposed of this property by way of gift. It could not be said, therefore, that he was its absolute owner and his right was only to the extent of one third and same was liable to be included."
2. The appeal was accordingly allowed.
3. At the instance of the Controller of Estate Duty, the Tribunal has referred the following question for our opinion :
" Whether, on the facts and in the circumstances of the case, the Tribunal was in law justified in holding that tbe deceased had only one-third share in the properties ? "
4. At the time of his death on 9th December, 1971, Ram Swarup's family consisted of his widow and a married daughter. The question is as to the rights and interest of the deceased and his widow and daughter in the property which the deceased, Ram Swarup, obtained on a partition of the bigger HUF. It appears that the property so obtained by Ram Swarup was treated as joint family property in the income-tax assessments. The Tribunal has held that he was not the absolute owner of the property. He had only an one-third share in it ostensibly on the footing that his widow and daughter also had an one-third share each. For the revenue, this view has been seriously questioned.
5. In Mulla's Hindu Law, 14th edn., para. 223(4), at p. 272, it is stated :
" (4) Share allotted on partition.--The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession."
6. In para. 230 of Mulla's book several categories of properties are mentioned as separate property of the acquirer. They are his self-acquired property. Under Clause (6) is included share on partition, that is, property obtained as his share on partition by a coparcener who has no male issue. Admittedly, Ram Swarup did not have any male issue. He had only his wife and a daughter. In view of the aforesaid statement of the law the share allotted to Ram Swarup on the partition of the bigger HUF would be his separate property, and the entire property will pass to his heirs by succession.
7. In para. 257, at p. 320 of Mulla's Hindu Law, it is stated t " 257. Alienation by sole surviving coparcener.--A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten."
8. It is evident that a sole surviving coparcener can alienate the property as if it were his separate property. He can make a gift of it. A son born later cannot object. Ex hypothesi it is clear that the wife or the daughter, who have no interest in the separate property of the male surviving coparcener during his lifetime also cannot object to any alienation made by him. The Tribunal was not right in holding that Ram Swarup could not have disposed of this property by way of gift, or that he was not its absolute owner. The entire property obtained by him on partition of the bigger HUF was his separate property in which his wife or daughter had no share or interest during his lifetime. He was its absolute owner. We agree with the view expressed by the Patna High Court in Hanumanmal Periwal v. CWT [1968] 61 ITR 320 that the assets that are received on partition by a member of an HUF who has no male issue at the time can be said to belong to him absolutely, although they are capable of being owned by an HUF consisting of him and his sen or sons that may be born or adopted subsequently. If, on the valuation date for purposes of wealth-tax, there is no other coparcener in existence with such a member, an assessment to wealth-tax in respect of assets so received can be made on him on the basis that he is an individual.
9. Section 6 of the Hindu Succession Act applies to devolution of interest of the deceased in the Mitakshara coparcenary property. It lays down the method of determining the interest. Since the interest of a sole coparcener in property received by him on partition is not coparcenary property in his hands (in the absence of male issue) and is correctly speak-
ing, his separate or self-acquired property, Section 6 of the Hindu Succession Act has no application. Succession to such property will be governed by Section 8 of the Hindu Succession Act. It will go by succession to his heirs. The Hindu Women's Rights to Property Act, 1937, has no application to the present case. That Act conferred on the widow the right to succeed to a share equal to a son in the property left by her husband. Under that Act a widow acquired an interest after the death of the husband. That Act did not confer on the wife any right or interest in the husband's properties during his life. Of course a widow would succeed to the properties left behind by her husband. But the question before us is different, namely, what was the extent of her husband's interest in the properties at the time of his death. It is evident that he was the absolute and exclusive owner of the properties at his death. The Tribunal was in error in holding that he had only an one-third share.
10. We, therefore, answer the question in the negative, in favour of the department and against the assessee. The Controller will be entitled to costs, which are assessed at Rs. 200.