TMI Blog1973 (4) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... gift deed. When called upon under section 13(2) of the Gift-tax Act to file the return the assessee contended that the deed did not effect any gift, and that it evidenced only a family arrangement; according to the assessee, title to the properties had not passed to his wife and children, who figure as executees in the document, and possession and enjoyment of the properties also remained with him. The Gift-tax Officer, refusing to accept the assessee's contention, proceeded to value the properties and levy gift-tax as per his order dated July 29, 1966 (annexure " B "). The assessee filed an appeal before the Appellate Assistant Commissioner, who, by his order dated January 17, 1968 (annexure " D "), confirmed the Gift-tax Officer's order. There was a further appeal to the Tribunal, who, as per order dated July 10, 1968 (annexure " C "), sent the case back to the Appellate Assistant Commissioner directing to decide the case de novo. The Tribunal was of the view that the material questions arising in the case such as whether the document purported to and did in fact convey title, whether the title deeds still stood in the name of the assessee or of the alleged donees, whether patta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et pattas in their names, but the possession and enjoyment of the entire properties will continue to be exclusively with me during my lifetime and after my lifetime my wife the said Bhargavi Amma is to take possession and enjoy all the properties and nobody has any right to object to her taking and enjoying the said properties and after her death the respective sharers in B to E ; the rest have to take possession and enjoy the properties with complete right of alienation. 8. If any document is to be executed during my lifetime only the documents executed by myself and the respective sharers would be valid and after my death if any document is to be executed in respect of A schedule property my wife, Bhargavi Amma, has got full and exclusive right to do so and the consent of Ambika Devi is not necessary and after the lifetime of Bhargavi Amma the entire properties comprised in A schedule will devolve on Ambika Devi. " The learned counsel for the revenue urged before us the following points : (1) that section 4(1)(b) of the Gift-tax Act, 1958, governs the transaction ; and (2) that the document in question in any event evidences a gift as defined in section 2(xii) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, in order to constitute a gift under the Gift-tax Act, it is not essential that the donee should have accepted the gift. In support of this proposition, the learned counsel for the revenue relies on Sampath Iyengar's comments on section 2(xii) contained in his book, Three New Taxes, volume 2, 1972, 3rd edition, paragraph 16, at page 51. The learned author says therein that, under the English law, to constitute a valid gift, communication of the gift by the donor to the donee is not necessary, whereas, under section 122 of the Transfer of Property Act, the position is different, in that that section requires acceptance by the donee for constituting a valid gift. The learned author further says that "under the Gift-tax Act, however, the language of the definition of 'gift' approximates the English view that neither communication to, nor knowledge of, the donee is necessary......So, the imposition of gift-tax would operate as from the date of the donor having perfected the gift on his part ". The learned author does not rely on any decision. We feel considerable doubt about the aforesaid view especially in view of the definition of "donee " (section 2(viii)) " as a person who acquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own property and to increase the value of the property of any other person. " In Transfer of Property Act, the definition is: " Section 5 : In the following sections 'transfer of property' means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons ; and 'to transfer property' is to perform such act. " The body of section 2(xxiv) of the Gift-tax Act says that any disposition, conveyance, assignment, settlement, delivery or other alienation of property is a transfer of property. The words " or other alienation of property " is a clear indication that the transactions indicated by the words it conveyance, assignment, settlement and delivery " preceding the words " or other alienation of property " are also " alienations ". This means that all the transactions enumerated in the body of section 2(xxiv) are alienations and, therefore, at least bilateral transactions. The Supreme Court had occasion to consider this provision in Goli Eswariah v. Commissioner of Gift-tax. In that case the karta of a joint family executed a deed whereby he threw into the commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute ; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, much invariably be attached to these words or expressions. " We are of the view that section 2(xxiv) of the Gift-tax Act uses the inclusive device for the third purpose enumerated by Raman Nayar, Actg. C.J., viz, only by way of abundant caution, so as to put beyond doubt that the transactions listed in sub-clauses (a) to (d) do come within the definition of "transfer ". In other words, the word " includes " in secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument rested on the inclusion clauses cannot, therefore, be countenanced. The revenue has no case that the transaction in question falls within one or the other of the sub-clauses. We were also referred to a Full Bench decision of the Gujarat High Court reported in Dr. A. R. Shukla v. Commissioner of Gift-tax. In that decision also section 2(xxiv) of the Act came up for consideration. It is said in that decision that the words, conveyance, etc., mentioned in section 2(xxiv) " though undoubtedly wide, are referable only to those cases where there is passing of ownership of property or interest in property from one person to another...... " From this passage also it is clear that, unless ownership of property or interest in property passes from one person to another, there can be no transfer of property as contemplated in section 2(xxiv) of the Act. We have had not the advantage of seeing the original document which is in Malayalam. The document describes itself as a deed of settlement. The learned counsel for the revenue invited our attention particularly to clauses 5 to 8. Clause 5 says that the executant (assessee) has come to the conclusion that he should effect an arrang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operties will devolve on Ambika Devi only after Bhargavi Amma's death. If, as is argued, the ultimate remainder in respect of the A schedule properties is, under clause 6, gifted to Ambika Devi, the provision in clause 8 that Ambika Devi's consent is not necessary (after the lifetime of the executant) for Bhargavi Amma to alienate the A schedule properties is meaningless. It is well settled that in construing a document all the provisions therein should be given due weight and the attempt should always be to harmonise the several provisions. This also, according to us, is a pointer that the executant did not intend to pass title to the executee. If the argument advanced by the learned counsel for the revenue is extended to its logical limit, Ambika Devi, even though she may or may not get the properties depending upon whether Bhargavi Amma does or does not alienate the properties during her lifetime, would be liable for gift-tax. In the light of what is stated above we will examine clause 7 of the document. That clause says that the respective sharers have been allowed by the executant to improve the properties and construct buildings and get pattas in their names, but the possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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