Explanation 1 to the proviso to Section 6 of the Hindu Succession Act, 1956, can apply only to a case where there is a coparcenary.

( 1 ) THIS is a reference made by the Appellate Tribunal under Section 64 (1) of the Estate Duty act, 1953. The question referred to us is:

"whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in holding that a notional partition is to be assumed prior to the date of death of the deceased in consequence of which 1/4th of the coparcenary property passed on his death ?"

( 2 ) THE facts, briefly stated, are that late Justice Harish Chandra died on September 11, 1972, leaving behind his widow, Smt. S. Harish Chandra, who filed a statement of the family property claiming that the deceased had only one-fourth share in the property. The deceased had one brother, Bishan Chandra, who had died even before leaving behind Smt. Swarup Rani, his widow, and no issue. The deceased, late Justice Harish Chandra, had only one daughter who had been married before his death. According to the accountable person, the branch of the deceased had one-half share in the coparcenary property, and in that half share, the share of the deceased was only one-fourth and the remaining belonged to the accountable person, since she was entitled to a share in the event of partition between herself and her husband.

( 3 ) THE contention of the petitioner was that as only one-fourth share on the death of her husband passed on to her, the value of one-fourth share alone was required to be taken into consideration under Section 5 of the Estate Duty Act.

( 4 ) THE Assistant Controller held that the deceased was the sole owner of whole of the property of his branch and on his death, the whole of the property vested in him, passed on to his wife. We have noted above that in the family of the deceased there were only two members, i. e. , the deceased and his wife and, as such, there was no scope for any partition between them.

( 5 ) THE appeal preferred by Smt. S. Harish Chandra was dismissed holding that the deceased had one-half share, and not one-fourth, as was pleaded by the accountable person. On the death, the whole of his share passed on to his wife, the accountable person, and, as such, the value of half share had to be taken into account for finding the liability of estate duty.

( 6 ) THE appeal filed by the accountable person was allowed by the Appellate Tribunal on september 20, 1976, on the ground that the share of the deceased was only one-fourth in the property and not one-half. It was thereafter, that an application was made by the Revenue for referring the question, mentioned above, to the High Court under Section 64 (1 ). The Tribunal, being satisfied that the question sought to be referred by the Department was one of law, made a reference of the same under Section 64.

( 7 ) IN the instant case, the admitted position is that there was a joint Hindu family of late Justice harish Chandra and Bishan Chandra. Admittedly, a partition took place between the two brothers, as a result of which half share of the property went to the deceased, late Justice Harish chandra, and the remaining half went to his brother, Bishan Chandra. Late Justice Harish chandra had no male issue and the only daughter he had was married before his death.

( 8 ) THE argument raised on behalf of the accountable person before the Tribunal and which was accepted by it was that since she was entitled to have one-fourth share in the property received by her husband, late Justice Harish Chandra, what passed on to her was only the share which, belonged to late Justice Harish Chandra, and, as such, the value of the one-fourth share alone could be taken in law for the purpose of charging estate duty under the Estate Duty Act.

( 9 ) THE accountable person had relied on Explanation 1 to the proviso to Section 6 of the Hindu succession Act, 1956, to substantiate her case that although she was living with her husband, on the basis of the concept of notional partition because of the fiction incorporated in Explanation 1 to the proviso to Sect