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TMI Blog1983 (3) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... . Chandravathi, under a document dated 2-4-1955. Smt. Chandravathi had four sons through her husband. Their names along with dates of birth are given below : 1. R. Venkataramaraju 30- 7-1955 2. R. Padmaramalingaraju 29-12-1961 3. R. Satya Sai Rama Krishnamraju 31- 5-1964 4. R. Venkatanarayana Srinivasaraju 18-10-1966 From the above it can be seen that on the date of the settlement dated 2-4-1955 the first of the sons R. Venkataramaraju should have been conceived and so we should consider him as a person already conceived in the womb of his mother. Under the terms of the settlement deed executed in favour of Smt. Chandravathi she is to enjoy the usufruct from agricultural lands for her life. She does not have any powers of alienation. After her death the property should pass on to her progeny. Smt. Chandravathi in her turn enjoyed the property and executed a settlement deed dated 31-5-1970. Copy of the document is provided at pages 3 to 5 of the paper compilation filed before us. The settlees under the said deed are Padmaramalingaraju, Satya Sai Ramakrishnamraju and Venkatanarayana Srinivasaraju. It may be mentioned that the eldest son Venkataramaraju was given away in ado ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bench 'A' of this Tribunal is provided at pages 10 and 11 of the paper compilation filed before us. 5. After the matter was remanded, the GTO took up the matter again for enquiry. It is contended before the GTO that the settlement deed dated 31-5-1970 is a void document inasmuch as the original settlement deed under which the settlor herself got the property, viz., the deed dated 2-4-1955 itself is void ab initio. Shri Vishwanadharaju, the settlor under document dated 2-4-1955, has no authority to make any settlement in favour of his wife regarding his ancestral immovable properties inasmuch as by the date of that settlement a son was already conceived and he is in the womb of his mother by then. A son conceived is as much as a son born and if he was born alive subsequently, he would get a right by birth and the right of his father as a sole surviving coparcener cannot be exercised after the date of conception of a son. That means by 2-4-1955 Sri Vishwanadharaju was no longer a sole surviving coparcener and, therefore, the gift of ancestral immovable properties made by him in favour of his wife is clearly voidable. Further, it is sought to be argued that assuming, without ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property is concerned. Acting upon the ratio of the two decisions mentioned above, the AAC cancelled the gift-tax assessment on the ground that the gift obtained by the donor in 1955 itself is void in law. Therefore, he allowed the appeal and cancelled the gift-tax assessment itself. 7. Aggrieved by the impugned order passed by the AAC, the matter was brought in second appeal before this Tribunal and thus the matter stands for our consideration. On behalf of the revenue it is sought to be contended : 1. The settlement in favour of the donor-assessee in this case obtained from her husband in 1955, was quite valid in law. 2. By the date of settlement dated 2-4-1955, the assessee's husband should have been taken as the sole surviving coparcener and hence got absolute rights to gift away any ancestral immovable properties in his hands. 3. The rights of an unborn son are not absolute. The doctrine that under the Hindu law a son conceived or in his mother's womb is equal in many respects to a son actually in existence in the matter of inheritance, partition, survivorship is not one of universal application and this doctrine especially does not fit in with the scheme of the Gift-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have conveyed absolute rights. It is also argued that so long as her sons remain as minors the assessee cannot prescribe any right of adverse possession against them. Further she entered into possession under the terms of the gift dated 2-4-1955. There is no evidence in this case as to from which date she abandoned her rights under the deed and from which date she began prescribing her so called absolute rights in the gifted properties. 8. We have considered these arguments in depth and with reference to the facts and documents on record. We are inclined to agree with the arguments advanced on behalf of the assessee for the reasons set out hereafter. Firstly, the question that falls for consideration would be whether the gift made under deed dated 2-4-1955 is a valid gift or not. That gift was executed by Shri Vishwanadharaju in favour of Smt. Chandravathi, the assessee herein. We have already mentioned that their first born son, viz., Venkatararamaraju, was born on 30-7-1955 within four months after the date of gift. Therefore, we are reasonable to presume that by the date of gift Shri Venkataramaraju, who was later on given away in adoption in 1971, was already conceived in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtition, survivorship, and the right to impeach an alienation made by his father, is not one of universal application and it applies mainly for the purpose of determining rights to property and safeguarding such rights of the son. This doctrine does not fit in with the scheme of the Income-tax Act, and it was not the intention of the Legislature to incorporate the special doctrine into the Act. " Applying the above ratio to the facts on hand it is sought to be contended for the revenue that for purposes of making an assessment under the Act the right of an unborn son under the general Hindu law cannot be made use of and, hence, if according to the latter Supreme Court decision if the right of interdiction is not available to Shri Venkataramaraju on 2-4-1955 and his rights flow only from 30-7-1955, the date of his birth Viswanadharaju should be considered to be the only sole surviving coparcener on 2-4-1955 when he made a gift in favour of his wife with regard to 39.96 acres. Such alienation is perfectly valid. 9. In our opinion, the argument of the learned departmental representative does not appear to be correct. Our limited purpose is to find out what were the rights acquired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous purposes'. What is generally understood by 'pious purposes' is gift for charitable and/or religious purposes. It also includes cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead. But, the gift made to wife by her husband of ancestral immovable property, out of affection, cannot be upheld, even where the husband is carrying out his father's wishes, for no such gift is permitted under Hindu law insofar as immovable ancestral property is concerned. Even the father-in-law, if he had desired to make a gift at the time of the marriage of his daughter-in-law, would not be competent to do so insofar as immovable ancestral property is concerned.' Bearing in mind these principles laid down by the Supreme Court, it would be clear that in the present cases the gift of immovable property made to the wife by the karta could not have been upheld. Such a gift would be wholly void. The first question is answered in the affirmative and in favour of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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