( 1 ) AT the instance of the applicant accountable person, in the matter of Late Shri S. P. Jhaveri, who died on 18. 9. 1980, two questions of law arising out of Estate Duty Appeal No. 5/ahd/82, in the proceedings under the Estate Duty Act, have been referred to this court by the Income Tax Appellate Tribunal along with statement of the case:"1. WHETHER, on the facts and in the circumstances of the case, the E. D. authorities were justified in including the value of the half share ofthe deceased in the coparcenary properties after rejecting the claim of the Accountable Person that half of such half share could be includible?2. Whether, on the facts and in the circumstances of the case, the E. D. authorities were justified in holding that M/s. Ashvin Mehta and Co. had goodwill and the deceaseds share in such goodwill had passed on his death?"

( 2 ) QUESTION NO. 1. The relevant facts for Question 1 are that the deceased and his brother Shri J. B. Jhaveri were carrying on the legal profession in the name and style of M/s. Ashwin Mehta and Co. The deceased along with his brother had interest in the coparcenary property of 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 coparcenaries, 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 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 deceased a male Hindu having left the female heir of class I in schedule to Section 8 of Hindu Succession Act, Section 6 of the Hindu Succession Act would operate and it is only to the extent 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 coparcenary that would pass on to accountable persons. As the wife would have got one half share in the coparcenary interest of her husband, had such partition taken place, deceased had only 50% of half share in the coparcenary property, the other half belonging to the brother of the deceased.

( 3 ) THE contention did not find favour with the Assistant Controller of Estate Duty and it included full value of the half share of the deceased in coparcenary properties in the principal value of the estate of the deceased. Contention as to deductions to be made on account of charge of maintenance of widow in the property was accepted. The Tribunal affirmed the order of the Assistant Controller of Estate Duty disallowing the assessees claim to exclude the alleged share which the widow claimed to have in the coparcenary interest of her husband , had the partition taken place during her husbands life time, by holding that widow was not entitled to claim or have a share out of the share which the deceased would have been allotted on the partition of the coparcenary properties between himself and his brother.

( 4 ) LEARNED counsel for the accountable person has vehemently urged that in view of the provisions of Section 6 read with 14 of the Hindu Succession Act 1955 it must be held that the interest of the deceased in the property of Mitakshara coparcenary of which he was member devolved in accordance with the provisions of Section 6 by way of succession read with Section 8 of the said Act. The Explanation 1 to Section 6 of the Act of 1955 envisages that for determining the interest of Hindu Mitakshara coparcenary, it should be deemed that partition of the property has taken place immediately before expiry of the deceased, irrespective of whether he was entitled to claim partition or not that is to say entitlement to claim partition is not the criteria but allotment of share on such partition, taking place is the relevant criteria and as a widow has a right in her h