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TMI Blog1980 (10) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable gift at Rs. 25,000 after making allowance for basic exemption under s. 5(2) of the Act at Rs. 5,000. He reasoned that the joint family funds have been given as a gift to the donee viz. Smt. Ramalaxamamma and the gift has been made by the assessee, Shri G. Pullaiah as manager of his HUF out of the HUF funds, viz. the capital account, hence s. 5(1)(viii) of the GT Act, did not apply to the facts of the assessee s case, since what is contemplated in the above section is that the gift should be from husband to wife or vice verse; but on the facts of the assessee s case the gift has been made in the capacity of Karta of the HUF and out of the joint family funds. 4. In appeal by the assessee, before the AAC of GT, it was contended on behalf of the assessee that the gift was exempt under s. 5(1)(viii) of the Act in view of the ratio of the decisions of the Andhara Pradesh High Court in the case of Janaveera Bhadrayya vs. CGT 59 ITR 176. Vadrevu Venkappa Rao vs. CGT 95 ITR 313 and that of the Punjab and Haryaan High Court in CGT vs. Harichand 95 ITR 308. 5. The AAC held that there was no force in the contention raised on behalf of the assessee since the gift was made by Shri Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r file by him and accordingly to which the gift has been made by the Shri G. Pullaiah in favour of his wife. Smt. Ramalaxamamma and the said gift having been made out of the joint family funds by the said Shri Gondi Pullaiah in his capacity as manager of his HUF. Shri Satyarayana placed strong reliance on the decision of the Punjab Haryana Singh Sons as has been relied upon by the AAC of GT. 8. We have given our careful and anxious consideration to the facts of the case as are found out from the orders of the lower authorities. We have also given our due consideration to the submissions made before us by the ld. authorised representatives of the parties to this appeal. We have also perused very carefully the paper books since placed on our file by the ld. counsel for the assessee which contain copies of the Tribunal s orders whereby on identical facts the Hyderabed Bench B as also D Bench Calcutta (Camp: Hyderabad) has decised the issue in favour of the assessee. We have also perused the copy of the gift-deed since placed on our file by the ld. Deptl. Rep. 9. At the outset, we like to mention that the admitted facts are that the gift has been made by Shri Gondi Pullaiah out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st therein, by gift. In certain cases, however, he has a special power, by virtue of his position as father, to dispose of, by gift, a small portion of joint family property (ss. 225 and 226). (4) A female may dispose of her stridhana by gift or will, subject in certain cases to the consent of her husband (s. 143). The right of a female have been considerably enlarged by s. 14 of the Hindu Succession Act 1956. Reference may be made to the Notes under that post. (5) A widow may in certain cases by gift dispose of a small portion of the property inherited by her husband (s. 181B(2)(v)) but cannot do so by will. Her rights have now been considerably enlarged by s. 14 of the Hindu Succession Act, 1956. Reference may be made to the Notes under that section post. (6) A widow governed by the Maukha law may alienate by gift moveable property inherited by her from her husband, though she cannot dispose of it by will (s. 179). Her rights have now been considerably enlarged by s. 14 of the Hindu Succession Act, 1956. Reference may be made to the Notes under that section post. (7) The owner of an importable estate may dispose of it by gift or will, unless there by a special custom proh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in his case though bear the character of joint family property is to be taken and treated as his separate property. 16. "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it... The legal fiction is, of course, to be carried to its logical conclusion, but that must be within the frame work of the purpose for which it is created". 17. Under the principles of Hindu law as stand enuciated in paragraph 257, a sole surviving coparcener is entitled to dispose of the coparcenary property, since in his case, it has to be taken as if the property that belonging to the coparcenary viz., the joint family was his separate property. This is so because "the essence of a coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the result, the gift by Shri Gondi Pullaiah which has been worked out by the lower authorities as taxable gift at Rs. 25,000 merits for exemption under s. 5(1) (viii) of the Act. 20. For completeness and caution we would like to state that the facts before. Their Lordship, of the A.P. High Court in the case of Janaveera Bhadrayya vs. CGT 59 ITR 176 and Vadrevy Venkappa Rao vs. CGT 93 ITR 313 are distinguishable with the facts of the assessee s case, since the said decisions were rendered on the basis of the documents viz. gift deeds, which made it clear, that the gifts made by the assessee were made as husband and not in their capacities as manager of the joint family. More so, Their Lordships were not seized, in either of those cases, with a similar proposition as we are seized of, where the gift is made by a sole surviving coparcener of the HUF and that of the family property. As regards the decision of the Punjab and Haryana High Court in the case of CGT vs. Harichand 95 ITR 308, the gift in that case was made by the Karta of an HUF to his wife, from the property of the joint family but Their Lordship held that under s. 5(1)(viii) of the GT Act, the gift was exempt from gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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