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TMI Blog1971 (11) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ious year ended on 31st March, 1964. Shri Tej Nath is the assessee. He was assessed as an individual in the year in question (1964-65). The relationship of the donor and the donees is indicated by the following pedigree-table: Sunder Lal His three wives (name not known, Kartari Devi Gulab Devi had pre-deceases (childless) her husband) Amar Nath Ram Nath Tej Nath (wife, Satya Bhama) (wife, Kamla Devi) Rajinder Ravinder Naresh Kumar Kumar Kumar Sunder Lal died some time in 1934. His first wife had pre-deceased him. He had one son from the first wife, Amar Nath. His second wife, Smt. Kartari Devi, was childless. From the third wife, Gulab Devi, he had two sons, Ram Nath and Tej Nath. Ram Nath is dead. His widow is Satya Bhama. Tej Nath was married to Kamla Devi and has three sons, Rajinder Kumar, Ravinder Kumar and Naresh Kumar. All of them were minors at the time when the gift in question was made. It appears that the rule of chundawand governed this family. Sunder Lal's property devolved according to the number of his wives. Smt. Kartari Devi relinquished her share in favour of the descendants of the two remaining widows. The property inherited by her was divided into tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, for the opinion of this court. Mr. Awasthy, learned counsel for the revenue, contends that the gift in question is voidable and not void. So long as the gift is not avoided, it will hold the field and would be a good gift so far as the Gift-tax Act is concerned. The learned counsel places his reliance mainly on the decisions of the Supreme Court in Raghubanchmani Prasad Narain Singh v. Ambica Prasad Singh, Guramma Bhratar Chambasappa Deshmukh v. Mallappa Chanbasappa, Raghbir Singh Sandhawalia v. Commissioner of Income-tax, Jugal Kishore Jai Prakash v. Commissioner of Income-tax and Subba Goundan v. Krishnamachari. The learned counsel, however, concedes that if we come to the conclusion that the gift is void ab initio, he would not be able to take any exception to the decision of the Tribunal, but his principal contention is that the gift is valid till it is avoided and as no steps had been taken to avoid the gift in a court of law, the Tribunal was in error in holding the gift to be void. Before we proceed to deal with the contention of the learned counsel, it will be proper to set out the definition of "gift" and other relevant provisions of the Act. "Gift" in section 2(xii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Gift-tax Officer. To repeat, there must be a donor, i.e., a person who owns property which is the subject-matter of gift. There must be a donee, i.e., a person to whom the donor transfers the ownership of the property. There must of course be property which is the subject-matter of transfer. It will be obvious that if the donor does not own the property, there would be no gift. It would also be obvious that if there is no donee, there would be no gift. This brings me to the question as to the rights of a karta to transfer coparcenary property by gift: " A joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A daughter ceases to be a member of her father's family on marriage, and becomes a member of her husband's family." (Mulla's Hindu Law, paragraph 212). "A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being...." (Mulla's Hindu Law, paragraph 213). A coparcenary purely is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary 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 coparceners. (2) As to disposition by will after the coming into operation of the Hindu Succession Act, 1956, see section 30 of that Act........" It will appear from the combined reading of these paragraphs that the position in 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 coparcenary property. He can, however, make a gift within reasonable limits of ancestral immovable property for pious purposes. The Supreme Court has extended the rule in paragraph 226 to enable a gift of ancestral immovable property to a daughter if the gift is to a reasonable extent (see Guramma v. Mallappa). But the rule seems to be firmly settled that a father has no power to make a gift of ancestral imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because the donees are themselves also owners of the property. They would not be acquiring any property under the gift. It is not a case where there has been a partition of the property and the father is transferring his share after the partition to the sons by gift. Therefore, in the case of sons, there would be no gift within the meaning of the Gift-tax Act. And if there is no gift, the jurisdiction of the Gift-tax Officer to tax the same does not arise. It was conceded by Mr. Awasthy, learned counsel for the department, that the factum of the gift has to be proved, i.e., there must be a gift within the meaning of the Gift-tax Act before the gift can be held to be taxable. If there is no gift, the Gift-tax Officer cannot bring it to tax. However, the text of Hindu law is very clear that a father cannot make a gift of the coparcenary property to his minor sons. If he does so, the gift would be void. It appears to me that in view of the provisions of the Gift-tax Act and the provisions of the Hindu law, the gift in question would be void. The only conclusion, therefore, to which one has to come on the facts of the present case is that the gift in question is void. The view that I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n no better position than a stranger. The gifts to the daughter and the divided brother were wholly void. There can be no acquiescence in a void transaction and so the fact that the sons had acquiesced in the gifts made no difference to the validity of the gifts." The next decision, which has taken the same view, is Smt. Valluri Janakamma v. Commissioner of Gift-tax. In this case, a gift of joint family property of which the assessee was the karta was made by him. This gift was sought to be taxed under the Gift-tax Act. It was maintained by the assessee that the gift was void as no gift could be made of the joint family property. This contention was not accepted by the Gift-tax Officer, the Appellate Assistant Commissioner and the Tribunal. On a reference, P. Jaganmohan Reddy C.J. and Venkatesam J. held: ".....that under Hindu law, a gift by a father or manager or coparcener of an undivided joint family of family property was void (except in regard to reasonable gifts made to members of the family permitted by special texts); as such A (the donor) had no right to gift away the properties belonging to the joint family consisting of himself, his wife and daughter, and, hence, the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every case of gift, the doctrine of estoppel may be applied as between donor and donee." The next decision relied upon is Kalyanasundaram Pillai v. Karuppa Mooppanar. This case has no applicability because it deals with the question that a completed gift cannot be revoked. The decision in Subba Goundan v. Krishnamachari does not deal with the question whether a gift by a member of a joint Hindu family is void or voidable. It is a case where the sale by the manager is attacked by the other members of the joint Hindu family. To the same effect is the decision in Bhirgu Nath Chaube v. Narsingh Tiwari. It will appear from a close study of these authorities that their Lordships of the Privy Council were very clear that all alienations are not necessarily void (Hanuman Kamat v. Hanuman Mandur). Moreover, cases of sale or exchange would stand on a totally different footing than the cases of gifts. In the case of an unauthorised sale or exchange the manager would be estopped from questioning the validity of his act, because he has made the vendee alter his position by parting with money for the property or by parting property for property. Therefore, on the basis of the rule of estoppel, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome of the Hindu undivided family. It will appear from the facts of the aforesaid case that virtually the gift was assented to by the joint Hindu family inasmuch as the son was present when the father made the gift of the shares and he did not object to the said gift. The observations that in all cases where the other coparceners are not the consenting parties to the gift, the gift would merely be voidable, have to be treated as obiter. It appears to me that this decision is of no help to the learned counsel for the department and is clearly distinguishable. The next decision to which reference has been made is Jugal Kishore Jai Prakash v. Commissioner of Income-tax. This decision again is of no assistance to the learned counsel for the department because all that was held in this case was that a father or karta of a joint Hindu family has the power to make a gift within reasonable limits, and that if the gift is in excess of the reasonable limits, it can only be challenged by the members of the joint Hindu family. However, it was observed that the gift is voidable and not void. This decision again is open to objection so far is the remarks that the gift is voidable and not voi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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