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TMI Blog1965 (1) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... rta of the Hindu undivided family to his wife of a part of the Hindu undivided family property is exempt under section 5(1)(viii) of the Act ?" The assessee filed a return for the assessment year 1958-59, for the relevant accounting year ending with March 31, 1958, under the Gift-tax Act in respect of a gift made to his wife, by a deed of gift dated September 18, 1957 of Act 15.46 cents of land, of the value as given on the deed of Rs. 23,000. The Gift-tax Officer did not allow the exemption under section 5(1)(viii) of the Act, because the donor was a Hindu undivided family. Before the Appellate Assistant Commissioner it would appear that the assessee contended that the gift made by a Hindu undivided family to the wife of the karta should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here any meaning in the Tribunal's statement that there cannot be a wife to a Hindu undivided family. It has never been the case of the assessee that there can be a wife to a Hindu undivided family. What the assessee contends, even as per the statement of the case, is that there cannot be any distinction between gift made by an individual to his wife and a member of the Hindu undivided family to his wife and, at the worst, in the latter case, it should be presumed to have been made out of his share in the Hindu undivided family. Section 5(1)(viii) reads thus : "5. (1) Gift-tax shall not be charged under this Act in respect of gifts made by any person-...... (viii) to his or her spouse, subject to a maximum of rupees one lakh in value in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im. The validity or otherwise of the transfer, vis-a-vis, Hindu law is not what is being considered now, but whether in fact the gift made by him has been made as an individual, i.e., whether it is a gift intervivos. This would depend on the construction of the deed with which he conveyed the property. A question of similar nature arising on analagous facts arose for decision by a Bench of this court consisting of Chandra Reddy C.J. and Chandrasekhara Sastry J. in Jana Veera Bhadraya v. Commissioner of Gift-tax. The question there was, "whether a gift made by a person who is the manager of a joint Hindu family to his wife of a portion of the property belonging to the family is a gift by a person to his spouse within the meaning of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the way of applicability of section 5(1)(viii). Thereafter, the learned judges posed the question whether the fact that he happened to be the manager of a Hindu family made any difference and answered it in the negative. The learned. Chief Justice observed : "We are not here concerned with the question whether it is open to the manager of a joint family to make a gift of the joint family property to his wife, nor are we concerned with the question whether it would be allotted to his share. The controversy relates to the capacity in which he made the gift. It cannot be postulated that he made the gift as the manager of the family, since the words of the document make it abundantly clear that in his capacity as the husband he made the g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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