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TMI Blog1991 (9) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... d property No. D-25, NDSE-2, New Delhi absolutely in favour of Sri Murli Manohar, aged 27, son of my brother, Shri Rangaswami Ramanujam, for his personal benefit and I have no other immovable property or interest in any immovable property. 2. I hereby devise and bequeath all my movable property personal belongings, bank balances, fixed deposits and anything and everything movable to my wife, Smt. Pushpam Satakopan, aged 65, absolutely and for ever with all rights of disposal over the same." Earlier in the recitals of the will the deceased stated, "I have made sufficient arrangement for the maintenance of my wife out of my personal resources." 3. As stated above, Shri R. Satakopan died onthe 1st October, 1976. He was issueless and the only heir of class-I was his wife, Smt. Pushpam Satakopan. In the present proceedings Smt. Pushpam Satakopan is the Accountable Person and it was contended on her behalf that succession to the estate of the deceased would be governed by the provisions of the Hindu Succession Act, as he had left a female heir and in terms of Explanation I to section 6, a partition would be deemed to have taken place immediately before the death of the deceased and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Explanation 2 - Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein." 6. In the case before us the deceased Shri R. Satakopan alongwith his brother and nephew constituted Mitakshara joint Hindu family. He left behind him a female heir i.e., his wife Smt. S. Pushpam. Therefore, in terms of the proviso to section 6 of the Hindu Succession Act, his share in the Joint family property does not devolve on the remaining coparceners by survivorship but devolves by testamentary succession in terms of the will referred to above. What is the extent of share of the deceased in the joint family property that devolves on his death is governed by Explanation 1, which says that the interest of the Hindu Mitakshara coparcener shall be deemed to be the share in the property th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty that passes on the death of a person. In the case before the Allahabad High Court the question was about the property received by a person on partition of a Hindu undivided family. The deceased had no son but only a wife and daughter. It was held that the individually is the absolute and exclusive owner of the property received on partition and, therefore, on his death the entire property passes. In the case before the Hon'ble Madhya Pradesh High Court the deceased had received certain property on the partition of an HUF. The deceased had no son and left behind him, as in the case before us, only a wife. It was held that the entire property passes on his death. Thus, with regard to the controversy that is now before us there are two judgments of the High Courts that directly govern the issue and support the view of the authorities below that it is the entire share of the deceased that passes on his death. It was contended that the Allahabad High Court had followed a judgment of the Patna High Court in Hanumanmal Periwal v. CWT [1968] 67 ITR 320, which was not followed by the Patna High Court itself in Pannalal Rastogi's case . This, in our view, has no effect on the validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oneous assumption that the wife had a choate or clear right against any particular property of the husband when he was alive. It is true, that she was entitled to be maintained by her husband. But that does not mean that she can extend that right and fastenit to any particular portion or part of the property of her husband. It is true that if she filed a suit and got a decree with a charge for her maintenance on a particular portion of the property, that portion of the property is charged with her maintenance. But when her right does not take that concrete, or choate shape or form, it cannot be said that the husband could not dispose of the property as he liked. It might be that the husband could maintain the wife through his own personal earnings. It is well settled that the claim of a wife for maintenance or for that matter, even of a widow is not a charge upon the estate of her husband until it is fixed and charged upon the estate. We may usefully extract the following passage at page 610 of the 14th edition of Mula's Hindu Law : --- "Maintenance not a charge - The claims even of a widow, for maintenance is not a charge upon the estate of her deceased husband, whether joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said that the wife has a right to claim a maintenance from the husband only and to the extent she is unable to maintain herself out of her own income and it would not be incorrect to say that a wife, who has income and means sufficient to maintain herself, has no right of maintenance against the husband so long as that state of affairs subsists. In any case, the wife's pre-existing right to maintenance gets enlarged into an absolute estate by operation of section 14 of the Hindu, Succession Act, only if a decree is passed charging it on any specific property, which is not the case here. As we discussed a little later the latest judgment of the Supreme Court in the case of Thota Sesharathamma v. Thota Manikyamma Judgments Today 1991(3) SC 506 does not help the assessee's contention in any respect. 12. In the case before us the deceased had executed a will by which he gave all his movables to the accountable person and has made a specific averment that he had made sufficient arrangement for the maintenance of his wife. The correctness of that statement was not disputed by the learned counsel for the Accountable Person, who further informed as at the hearing that the wife, who i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Satakopan had no son. The wife was not a coparcener and, therefore, she neither had a right in the property coming to the share of the deceased R. Satakopan nor could she claim a partition from her husband. 15. This ruling came up for consideration in the State of Maharashtra v. Narayan Rao Shyam Rao Deshmukh [1987] 163 ITR, 31 (SC), where the question was whether a Hindu Undivided family was in existence for the purposes of Maharashtra Agricultural Land (Ceiling on holdings) Act, 1961. The Hon'ble Supreme Court held that the proviso to section 6 of the Hindu Succession Act only operated to fix the share of the female members in the joint Hindu family property and it did not separate the members of the family. Therefore, the family continued as such and was entitled to hold only one unit. The contention of the learned counsel for the Accountable Person, therefore, that a partition between the deceased and his wife should also be deemed to have taken place and that partition should be deemed as real and irrevocable, is not supported by any authority and is unacceptable. 16. Strong reliance was then placed on behalf of the appellant on a recent judgment of the Hon'ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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