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TMI Blog1977 (10) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... tatus and dignity and also to give the minor daughters necessary marriage presents and streedhanam at the time of their marriage. The total value of the properties gifted to the three minor daughters is stated to be about Rs. 90,000. For the assessment year 1965-66, the Gift-tax Officer made a protective assessment accepting the assessee's contention that the gifts were valid. On appeal also the Appellate Assistant Commissioner held that they were valid gifts and the gift-tax had to be charged on them. There was no appeal to the Tribunal against the said order of the Appellate Assistant Commissioner. But in the income-tax assessments of the assessee, the incomes from the properties were assessed in the hands of the assessee. On appeal, the Appellate Assistant Commissioner directed the Income-tax Officer to exclude the income from the properties in view of his earlier decision about the validity of the gifts made by the assessee. The revenue took the matter in appeal before the Income-tax Appellate Tribunal and contended that the gifts to unmarried daughters were void and that the finding of the Appellate Assistant Commissioner that the income from the properties was not liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Narasimharaju [1975] 101 ITR 74 (AP) and strongly relied upon the decision of the Supreme Court in Guramma v. Mallappa, AIR 1964 SC 510, which has been referred to in the judgment of the Tribunal and contended that the gifts are not invalid. Before referring, to the decisions relied upon by learned counsel for the parties, it is necessary to see what the texts say regarding the validity or otherwise of the gifts made by the karta of a Hindu undivided family or manager of a joint Hindu family to his minor daughter. We find the following passage at pages 472 and 473 of Mayne's Hindu Law and Usage, eleventh edition : " Gifts to brides on occasions of marriage are very common and various Hindu texts impose a moral obligation on the father or other relatives to make them ...... It has been held that a gift, by a father to his daughter or to her husband for the benefit of both on the occasion of her marriage, of a small portion of ancestral immovable property is valid. As Subrahmanya Aiyar J. says 'a gift of a small extent of land (Bhudanam) on such an occasion is a customary indispensable duty where the family can afford it'. Even after marriage, a gift can be made to a daughter by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property may have passed to the donee. It is not necessary for a coparcener or any other member of the joint family who claims to have a right or interest in the property to interdict a gift as an alienation not binding on the family but to ignore the transaction and sue to enforce his or her rights to the said property." Another Bench of this court consisting of Rajamannar C.J. and Ramaswami J. has observed in Palwanna Nadar v. Annamalai Ammal [1957] 1 MLJ 238 ; AIR 1957 Mad 330, 332, thus : " The special powers of a father do not extend beyond purposes warranted by special texts. It is settled law that a father has special powers over the movable properties for indispensable acts of duty and over immovable properties for pious purposes. Since indispensable acts of duty mean and include pious purposes, a father has no larger power over movable properties than over immovable properties except in the matter of gifts through affection inspite of the difference in the terminology used by the texts. A gift to a daughter or any other relation is not for pious purposes, and though a gift through affection may be made of movable property, a gift of immovable property cannot be sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age without point of time. Reliance was placed on these observations of the learned judges by the learned counsel for the revenue, having regard to the fact that the gifts in the present case have been made to minor unmarried daughters of the assessee and not on the occasion of their marriage or when they were departing from their parental home or later, but during their minority and when they still remained unmarried. Reference has been made to the said decision in Palwanna Nadar v. Annamalai Ammal [1957] 1 MLJ 238; AIR 1957 Mad 330, in a decision of another Bench of this court in A. Basaviah Gowder v. Commissioner of Gift-tax [1963] 49 ITR 817 (Mad), where the learned judges have observed thus : "In the case of the gift to the daughter, it is not contended that the gift was at or about the time of her marriage. Learned counsel for the asssee concedes that on the date of the gift the daughter was a minor of about 9 years of age. The gift to the daughter cannot, therefore, be regarded as valid, as having been made for a purpose countenanced by the Hindu law. In the case of the gift to the brother, a divided brother, he stands in no better position than a stranger. It follows on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minor sons by Tej Nath, the karta of a Hindu Undivided family, and it has been held by the Full Bench that the gift was void and not voidable. Ismail J. has observed in the decision in Chandrasekaran v. Valli Ammal [1973] TLNJ 389, thus : " The argument is that the rule of Hindu law imposing a restriction on the power of alienation of a manager of a joint Hindu family by way of making a gift of joint family property was enunciated for the benefit of the coparceners since they had acquired a right by birth in the joint family property and consequently such gifts can be challenged only by a coparcener, but cannot be challenged by a person like the plaintiff who is only an heir of the manager of the family. Mr. Srinivasan wanted to substantiate this point by referring to certain texts of Hindu law as well as certain decisions of the courts. In my opinion, as far as this court is concerned, the matter has been settled by holding that such a gift is void ab initio and the donor had no power to make the gift at all and consequently that gift had no existence in the eye of law, with the result that it can be ignored by any person interested in the estate. " With respect to the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the father in favour of his minor daughters are beyond reasonable limits. They are extravagant and unreasonable. They are, therefore, void under the personal law." The learned judges have further observed that those gifts are no doubt voidable at the instance of the coparceners who are affected by those gifts, but still those gifts are void as against all the persons other than the coparceners. In the Full Bench decision of the Punjab and Haryana High Court in Commissioner of Gift-tax v. Tej Nath [1972] 86 ITR 96 referred to above, the Full Bench appears to have been unable to subscribe to the view of the Lahore High Court in Imperial Bank of India v. Maya Devi, AIR 1935 Lah 867, where it has been held that a gift by a manager was voidable at the instance of the other coparceners only, for, the learned judges of the Full Bench have observed that " it may be mentioned that in that case the gift was sought to be attacked by a stranger to the family and the observations that were made in that decision must be restricted to the facts of that case and that this decision was not authority for the proposition that inter se the members of a joint Hindu family the gift would be onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot make the gift any the less a valid one." The Full Bench of the Punjab and Haryana High Court, which had occasion to consider this decision of the Supreme Court in their decision in Commissioner of Gift-tax v. Tej Nath [1972] 86 ITR 96 referred to above, has observed that the Supreme Court has extended the rule mentioned in paragraph 226 of Mulla's Principles of Hindu Law (extracted above) to enable a gift of ancestral immovable property to a daughter if the gift is to a reasonable extent. We are in respectful agreement with this view of those learned judges, for the Supreme Court has observed in that decision that the Hindu law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But it became crystallised into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a life of celibacy. The need of a father in a Hindu undivided family to make provision for the future maintenance of his minor unmarried daughters, in our opinion, is greater and more compelling than the one he may have to make provision for the maintenance of the daughter at the time of the marriage or thereafter, for, a daughter who gets married or who has already got married, has her husband who may provide for her maintenance in addition to the support which she may derive from her father after the marriage, while there is no such support from a person like the husband or other relation in the case of a minor unmarried daughter of a Hindu father of an undivided family. In the present case, it was submitted by the learned counsel for the assessee that the total assets of the assessee amounted to thirteen lakhs and that the gift which each of the three minor daughters got would bear only 1/39 portion of the total value of the assets of the assessee on one computation and only 1/55 portion of the total value of the property by another computation. The learned counsel for the revenue does not contend that the properties gifted to the minor daughters do not bear a small or reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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