9911796707
TMI Blog1970 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... this court: " 1. Whether the provisions of the Gift-tax Act would prevail upon the provisions of Mohamedan law so far as the gifts to the three sons are concerned ? 2. If the answer to the above question is in the negative whether, on the facts and in the circumstances of the case, it was rightly held that there was a delivery of possession of the subject-matter of the gift under the Mohamedan law in the present case and the gift-tax was rightly attracted ?" The assessee, Mohammad Mustafa, was a member of a partnership firm, " Mohammad Mustafa and Sons " There were four partners in all, and three of them, including the assessee, " retired " from December 31, 1958. The assessee had contributed a capital of Rs. 31,016-12-0, and on his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seems to us that the essential question attempted to be brought out in framing the above two questions is whether the transactions amounted to gifts taxable under the Gift-tax Act. Accordingly, we reframe the two questions as a single question in the following terms : " Whether, on the facts and in the circumstances of the case, the transactions of December 31, 1958, evidenced by a transfer of capital from the account of the assessee to the accounts of his three sons represented gifts taxable under the Gift-tax Act ? " It is contended for the assessee that there can be no gift under the Mohamedan law unless there has been delivery of the property gifted, and inasmuch as, in the instant case, there has been no actual delivery of property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amedan law is set out by Sir D. F. Mulla in his Principles of Mohamedan Law, sixth edition, page 142, para. 150, where he states : " It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of." and then proceeds to say : " When the subject of the gift is incorporeal property or an actionable claim, the gift may be completed by any act on the part of the donor showing a clear intention on his part to divest himself in praesenti of the property, and to confer it upon the donee." In the case before us, it is clear that on the transfer entries made in the books of the firm the right to the amount must be considered as having been transferred by the father to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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