JUDGMENT

THOMMEN, J. - This appeal by certificate arises from the judgment of the Andhra Pradesh High Court dated March 23, 1977 in Estate Duty Case No. 6 of 1975. Answering the questions referred to it against the appellant and in favour of the revenue, the High Court held that, in computing the net principal value of the estate for the purpose of the Estate Duty Act, 1953 ("the Act"), the appellant was not entitled to deduct either the estate duty payable on the estate or the amount attributable to the maintenance of the wife of the deceased.

2. The appellants counsel, Mr. T. A. Ramachandran, submits that the duty payable on the estate of the deceased is an encumbrance on the estate, being a first charge on the property passing on the death, and is, therefore, deductible in terms of Section 44 of the Act. According to counsel, all properties passing on the death of the deceased are encumbered to the extent of the duty payable by reason of the charge created by Section 74 of the Act and that duty has to be deducted from the total value of the estate which is subjected to the levy of duty in terms of Section 5. Counsel further submits that the amount attributable to the maintenance of the wife during the life of her husband must also be treated as a debt deductible under Section 44.

3. Mr. S. C. Manchanda, appearing for the revenue, submits that the claim of the appellant has no warrant in the law and is totally unsupported by any judicial decision. He submits that estate duty falls upon the property passing upon the death. The property at the time of the passing was not encumbered by the duty, for duty became payable only upon it passing and was, therefore, not a liability to which the estate was subjected during the life of the deceased. It became so encumbered only subsequent to and consequent on the death. He further submits that there is not the smallest foundation for the claim for deduction in respect of the maintenance of the wife during the life of the husband, as contended by the appellants counsel, for the estate was never charged with the amount attributable to the maintenance of the wife. A wifes claim for maintenance either during the life of her husband, or subsequent to the death of her husband, is not a charge on the property and is not a deductible amount in terms of the Act.

4. We shall first deal with the claim for deduction of estate duty. Section 5 of the Act, insofar as it is material reads :

"5. Levy of estate duty. - (1) In the case of every person dying after the commencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided of all property, settled or not settled, including agricultural land.... which passes on the death of such person, a duty called "estate duty" at the rates fixed in accordance with Section 35.

(2) * * *

5. Sub-section (1) of Section 5 imposes a duty upon the net principal value ascertained of "all property" which passes on the death of a person. All properties passing on a death, other than those which are exempted from duty (see Sections 21 to 33), are, for the purpose of levy under the Act, aggregated in to one estate, which is the "property" on which duty is levied at the rates applicable in respect of its principal value (Sections 34 and 35), but subject to the deductions permitted under Part VI of the Act.

6. The properties are valued, for the purpose of levy under the Act, in accordance with the provisions of Part V. Section 36 says that the principal value of any property shall be estimated to be the prince which, in the opinion of the Controller, such property would fetch if sold in the open market at the time of the death of the deceased.

7. Part VI of the Act contains Sections 44 to 50-B dealing with deductions in determining the chargeable value of the estate. Section 44 says that, in determining the value of an estat