Notional partition in Mitakshara property excludes a wife's maintenance claim from reducing the deceased coparcener's estate duty share.

On the death of a Mitakshara coparcener, the deceased's interest is first determined by a notional partition under section 6 of the Hindu Succession Act, 1956, and the wife, not being a coparcener, does not take a partition share. A wife's right to maintenance is only inchoate unless converted into a specific charge on property, and it does not by itself create an interest in the coparcenary estate or a right to demand partition. Section 30 of the Hindu Succession Act was also noted as recognising the coparcener's power to dispose of his share by will. On that basis, the deceased's entire half share was treated as passing on death under the Estate Duty Act.

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Issues: Whether, on the death of a male coparcener leaving behind a wife and no son, the wife could be treated as having a share in the joint family property on the basis of a right to maintenance so as to reduce the deceased's interest passing on death under the estate duty law.

Analysis: Under the proviso and Explanation 1 to section 6 of the Hindu Succession Act, 1956, the deceased's interest in Mitakshara coparcenary property is first ascertained by assuming a partition immediately before death. On that assumption, the deceased's share is worked out according to the ordinary rule of partition among coparceners, and a wife, not being a coparcener, does not get a partition share. The claimed right of maintenance was held to be only inchoate and personal unless it had been converted into a charge on specific property. The authorities cited on maintenance and female rights did not establish any right in the wife to claim partition or to treat maintenance as an interest in the coparcenary property. Section 30 of the Hindu Succession Act, 1956 was also noted as supporting the coparcener's power to dispose of his share by will.

Conclusion: The deceased's entire half share in the joint family property passed on death within the meaning of section 6 of the Estate Duty Act, and the assessee's contention that only one-fourth passed was rejected.

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