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TMI Blog1971 (11) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... as delivered by GOVINDAN NAIR J. - This is a reference under section 256(1) of the Income-tax Act, 1961. The question referred is in these terms : "Whether, on the facts and in the circumstances of the case, and on a true construction of the deed dated March 22, 1963, the Tribunal was right in holding that the deed does not evidence a transfer otherwise than for adequate consideration within the meaning of section 64(iv) of the Income-tax Act ?" The year of assessment is 1964-65 relating to the accounting period that ended on March 31, 1964. On the 22nd of March, 1963, the assessee executed a document in favour of his minor son. This document is in Malayalam, which is annexure "A" to the statement of the case. The agreed translation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame shall be entrusted to you for your education. On your attaining majority you shall pass receipts directly for the rent and whenever found necessary you may evict the tenants and hold the property with full proprietary rights over it. You shall also get your name entered in the Sirkar Revenue records and pay the Sirkar tax. Whenever, before you attain majority, if I feel that any of the tenants have to be evicted, I am entitled to evict the tenants and take possession. The value of the property is approximately rupees fifteen thousand." Section 64(iv) of the Income-tax Act, 1961, runs thus : "64. Income of individual to include income of spouse, minor child, etc.--In computing the total income of any individual, there shall be includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and so the question was not dealt with. No doubt, by referring to one of the terms, in the document reading as follows : The settlement is executed in consideration of and in fulfilment of the duty and obligation of the settlor and is irrevocable", it was observed : The document makes it quite clear that it was executed in pursuance of the legal duty and obligation cast upon the assessee to maintain and educate his minor children and in fulfilment of that duty and obligation, it should follow that such, a transaction has to be considered as one supported by consideration." There has not been any discussion in the case as to whether a father has any obligation enforceable in the civil courts to maintain his minor child. It is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t must be for a consideration other than love and affection. However, the document itself shows that it was executed for love and affection ; such a document cannot be said to be for adequate consideration. Reference was made to the obligation of the father under section 488 of the Code of Criminal Procedure and it was suggested that the son had given up or must be taken to have given up or must be taken to have, impliedly promised not to enforce the obligation of the father under section 488 of the Code of Criminal Procedure. Even such a thing we are unable to visualise in this case because the son had no contracting capacity and-he could not have made a valid promise to give up his right to seek maintenance under section 488 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X
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