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TMI Blog1998 (12) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant facts for question No. 1 are that the deceased and his brother, Shri J. B. Jhaveri, were carrying on the legal profession in the name and style of Ashwin Mehta and Co. The deceased along with his brother had interest in the coparcenary property of a Hindu undivided family. The deceased died issueless leaving behind his widow. In the coparcenary property of which the deceased and his brother, J. B. Jhaveri, were coparceners, the deceased had one-half share. The accountable person of the deceased claimed that only fifty per cent. of the one-half share of the deceased in the coparcenary can be considered for the purpose of determining the principal value of the estate that passed to his heirs. The contention was founded on the basis that the deceased a male Hindu having left the female heir of class I in schedule to section 8 of the Hindu Succession Act, section 6 of the Hindu Succession Act would operate and it is only to the extent the deceased would have been entitled to a share in the coparcenary property by assuming that a partition had taken place immediately before his death will be the interest of the deceased in the coparcenary that would pass on to the accountable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty devolved by succession and not on the surviving coparceners by survivorship. But the provision does not affect the rule of partition and the extent of share to which a member of the coparcenary or a female though not a member of the coparcenary is entitled to on such partition taking place. From the facts found by the Tribunal it is apparent that at the time of death the deceased had no issue. He was a member of the coparcenary which was constituted of himself and his brother. His brother was not an heir in the presence of his widow, a relative enumerated in class I of the Schedule. It is not also in dispute that as far as the brothers inter se are concerned on partition the deceased and his brother would have one-half share each. This takes us to the question as to what is the status of a female member of a joint family vis-a-vis the coparcenary, on partition of ancestral property. Firstly, a coparcenary is a much narrower body than a Hindu undivided family. A coparcenary consists of such male members only who get interest in ancestral property, which is also termed as coparcenary or unobstructed heritage, by birth; and no male who is removed by four generation in male l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a wife herself cannot demand a partition but if a partition does take place between her husband and his sons she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. About widowed mother, law has been stated in para. 316. A mother cannot compel a partition so long as the sons remain united. But if a partition takes place between the sons of her husband she is entitled to a share equal to that of a son in the coparcenary property. So also the position has been stated in respect of grandmother in para. 317. A paternal grandmother (father's mother) cannot herself demand a partition but when a partition takes place between her son's sons or between her sons and sons of another predeceased son, she is entitled to a share equal to that of a son in the coparcenary property and she is also entitled to a similar share on partition between the sons and the purchaser of the interest of one or more of them. Thus according to the law of partition as is applicable to coparcenary property a female in the absence of her son, or son's son, is not entitled to claim or to the allotment of a share solely against her husband if he i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices which were personal in character and dependent on the personal skill of the person concerned, there cannot be any goodwill of the firm and if at all there can be any goodwill it cannot have any saleable value. Such a wide proposition does not appear to be sound. It needs to be considered in the first instance what is meant by goodwill. It was said by Lord Macnaghten in IRC v. Muller and Co's Margarine Ltd. [1901] AC 217, 223 (HL) : "What is goodwill ? It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the good name, reputation and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old established business from a new business at its first start. The goodwill of a business must emanate from a particular centre or source." Lord Lindley dealing with the concept of goodwill in his treatise on partnership said : "It is generally used to denote the benefit arising from connection and reputation, and its value is what can be got for the chance of being able to keep that connection and improve it. Upon the sale of an established business its goodwill may have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 1 Ch. 551 (CA), the court assumed that the solicitors business has a goodwill. In C. J. Thakar (A. P.) v. CED [1995] 214 ITR 323, a Division Bench of the Bombay High Court in the facts and circumstances of the case found that where the firm of which deceased was a partner was dissolved on the death of the deceased partner and a new firm was constituted, a new name of the firm was given not in any way connected with the deceased. The history would indicate that the firm never had any fixed trade name. The name of the firm always changed with the joining and retirement of a partner, there was no express agreement between the partners about any asset of the firm capable of being sold or valued as goodwill of the firm. There were no special features like a location of the office premises in an important locality, etc. The court found that the firm of professionals in the case before it had no goodwill. The question had arisen under the Estate Duty Act on the death of a partner in a firm of advocates. Quite contrary in Vindoor Bai v. CED [1981] 132 ITR 421 (All), when the court found that one of the 12 partners of a firm of contractors, the partners being engineers, had died and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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