This is assessee's appeal challenging addition of sum of Rs. 74,098 as capital gains arising out of transfer of certain shares by assessee to his wife. 2. We have heard learned counsel for assessee and learned departmental representative and have perused record. 3. facts are that assessee's first wife instituted petition under section 10 of Hindu Marriage Act, 1955, against assessee in year 1977 when she was 68 years of age and assessee was 73 years of age claiming judicial separation from teh assessee on ground of long desertion and she also claimed that movable and immovable properties worth Rs. 10 lakhs be given to her out of properties of assessee for maintenance. This petition which was moved in November 1977 was decided in terms of compromise according to which claim for judicial separation was decreed and for maintenance of wife assessee gave her house known as 'Manharganj Kothi, Dewas' worth Rs. 2,10,500 and 5,852 equity shares of union carbide valued at Rs. 24 per share, 1,637 equity shares of chemicals and Fibers valued at Rs. 26 per share and some other propertied including cash amounting to Rs. 2 lakhs. According to ITO, aforesaid equity shares were purchased at lesser price and were transferred to wife at value of Rs. 1,83,000 and, therefore, there was capital gain of Rs. 74,098. assessee had contended that in circumstances of case, there was no capital gain. This contention did not find favour with learned ITO as well as with learned Commissioner (Appeals) and assessee is thus now before us. 4. Section 45 of Income-tax Act, 1961 ('the Act') provides that any profits or gains arising from transfer of capital asset effected in previous year shall be chargeable to Income-tax under head 'Capital gains' and shall be deemed to be income of previous year in which transfer took place. It was conceded on both sides that joint stock shares held by assessee and transferred to wife were capital assets of assessee. learned counsel for assessee, however, contended that transaction in question did not amount to transfer and it was in fact family settlement in which wife was given certain share of assessee's properties. On facts of present case, we are unable to accept that it is case of family settlement. Admittedly, assessee was exclusive owner of shares in question. It was admitted that assessee was being assessed to Income-tax in status of individual. It, therefore, cannot be contended that assessee's wife had any interest in these shares. question of family settlement comes in when there is dispute between admitted co-shares or persons claiming share in properties although their rights may be disputed by other co-shares. In present case, wife was not claiming any right of sharing assessee's properties as co-share. Her claim was for maintenance it was in lieu of maintenance that properties in question were transferred by assessee to her. right of wife for maintenance is incident of status or estate of matrimony and Hindu is under legal obligation to maintain his wife. obligation to maintain wife is personal in character and arises from very existence of relations between two parties. Therefore, when certain property is transferred to wife in settlement of claim for maintenance, it cannot, in our view, amount to family settlement because there is no dispute between co-shares and other persons are not interested in dispute. learned counsel for assessee relied upon Ram Charan Das v. Girja Nandini Devi AIR 1966 SC 323 in which it was held that transaction of family settlement entered into by parties who are members of family bona fide to put end to dispute among themselves is not transfer. It is also not creation of interest. It was further observed that in family settlement each party takes share in property by virtue of independent title which is admitted to that extent by other parties. These observations have no application to facts of present case. As already stated assessee did not claim any independent title to share in properties owned by assessee. What she claimed was maintenance and it is in lieu of maintenance that assessee transferred certain properties to her. We, therefore, hold that doctrine of family settlement did not apply to facts of present case. Admittedly assessee transferred aforesaid shares to his wife in connection with agreement to live separately and divested himself of any rights in said property. result, therefore, is that there was complete transfer of said shares. Therefore, it is also established that there was transfer within meaning of section 45. 5. last ingredient required by section 45 is that profit or gain should arise from transfer of capital asset. It is ingredient which, in our view, is lacking in present case. In consideration of transfer of shares and other properties assessee did not receive anything material. shares have been transferred in consideration of agreement to live apart and not to claim any other right in assessee's remaining properties. Such consideration cannot be valued in terms of money and, therefore, it cannot be said that in consideration of transfer of shares assessee received anything which was of value of Rs. 1,83,000. As matter of fact, such consideration is no consideration in strict sense of term as contemplated in law of contract. That is probably reason why in section 64(1) (iv) of Act, words used are 'in connection with agreement to live apart'. Legislature has avoided word 'consideration' and has used word 'connection' probably because consideration for which person settles property under agreement to live apart is not legal consideration in strict sense of word. In present case, what assessee did was merely that he described value of shares at Rs. 1,83,000 while transferring them to wife in compromise decree. It is not case in which claim for Rs. 1,83,000 may have been decreed against assessee and in satisfaction of that decretal debt assessee transferred these shares in full discharge of that debt. Had that been so, it could certainly be said that assessee has received benefit of Rs. 1,83,000 as liability to that extent had extinguished but in present case wife wanted certain shares and they have been given to her. mere fact that their value has been estimated or mentioned at Rs. 1,83,000 cannot mean that assessee has received material benefit to that extent. We are, therefore, of opinion that on facts and circumstance of present case no capital gains can be said to have arisen to assessee and, therefore, amount of Rs. 74,098 could not be added to assessee's income as capital gains. 6. In result, appeal is allowed and sum of Rs. 74,098 is deleted from assessee's income. *** H.H. MAHARANI MANEKARAJE PAWAR v. INCOME TAX OFFICER