9911796707
TMI Blog1977 (3) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... x Officer it was contended on behalf of the assessee that the above gift was void and therefore, gift-tax is not exigible. The Gift-tax Officer rejected the assessee s contention and brought to tax the above gift. 3. On appeal the AAC accepted the assessee s contention following the rulings cited before him. Aggrieved by the said order of the AAC the revenue has filed this appeal before us. 4. The learned Departmental Representative vehemently contended that the AAC erred in holding that the gift made by the karta of the Hindu undivided family to his wife is void. He pointed out that gift in this case is not a void gift but is only a voidable one. In this connection he referred us to the decision of the Andhra Pradesh High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d dated 24th July, 1969 Shri Malla AppaRao had made a gift under consideration. The said document is in Telugu. The assessee s learned counsel has furnished an English Translation thereof. The learned Departmental Representative has also transalated the settlement deed in English. After hearing the learned Departmental Representative and after perusing the English translation of the gift-tax deed provided to us we find that Shri Malla Apparao had not effected an absolute gift of the property viz. agricultural lands to his wife. He had only allowed her to enjoy the said property for her life time and it was further directed that after her life time the property should vest in male issues that may be born and after them to their heirs. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ips observed as under: "In view of the above authorities and in the absence of any specific textural authority stating that the gift is void as such, we are inclined to accept the principles stated by the Division Bench in Suryakantham vs. Suryanarayana Murthy viz., that the gift is not void but it does not bind the other coparceners who are affected thereby and that if they consent, the gift can be treated as valid. There is also implied consent and that consent may be given at time of the transaction or inferred by subsequent conduct." Later the Andhra Pradesh High Court again considered another case of Commissioner of Gift-tax, A.P.I. vs. Bhupathiraju Venkata Narasimharaju(4). In that case the assessee was the karta of Hindu undivide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Nattuswamy and another vs. Gift-tax Officer and another (6), held at page 143 as under : ".........it is well-settled that under the Hindu law even the karta of a Hindu undivided family has no power to convey the properties by way of either settlement of gift." The Full Bench of the Punjab and Haryana High Court in the case of Commissioner of Gift-tax, Patiala vs. Tej. Nath(7) referred to various passages from Mulla s Hindu Law and observed as under: "It will appear from the combined reading of these paragraphs that the position on Hindu law is that whereas the father has the power to gift ancestral movables within reasonable limits, he has no such power with regard to ancestral immovable property or coparcenery property. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . At page 108 their Lordships referred to the ruling of Mr. Justice Bhasyam Ayyangar in Rottala Runganatham Chetty vs. Pulicat Ramasami Chetty as under: "It has now been definitely settled by judicial decisions that it is incompetent to an undivided member of a Hindu family, to alienate by way of gift his undivided share or any portion thereof and that such alienation is void in toto......." "It was, however, observed that with regard to sale of property by the manager of, the Hindu undivided family for value, the conveyance would not be inoperative and void. In other words, it would be voidable. This decision definitely highlights the distinction I have made between gifts and other alienations........ "It is not necessary to multiply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arcenery property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparcerners." From the above it is clear that no coparcener can dispose of his undivided interest in coparcenary property by gift except with the consent of the other coparceners. In this case the other coparcener is a minor and is incapable of giving his consent. It, therefore, follows that the gift in the instant case is clearly void. The other rulings cited by the learned Departmental Representative are not applicable to the facts of this case where we are con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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