TMI Blog1981 (7) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... 67,744 " ---------------- The assessee disclosed the value of all the gifts amounting to Rs. 1,33,744 which included this gift of Rs. 67,744. This amount of Rs. 67,744 was claimed as exempt on the ground that these were marriage expenses. The ITO disallowed the claim of the assessee. Being aggrieved by the order of the ITO, the assessee went up in appeal before the AAC. It was contended on behalf of the assessee that an unmarried daughter was entitled to have her marriage expenses met by the HUF and, therefore, there was no question of any gift whatever in the HUF spending these amounts on her marriage. The AAC was of the view that there was no obligation on the HUF to spend on the marriage of the daughter as the daughter was not solely dependent on the HUF. He observed that the marriage expenses were met not by the HUF but by the karta or parents "from their individual accounts. The AAC, therefore, upheld the order of the ITO. The assessee went up in appeal before the Tribunal. It was urged before the Tribunal that there was an obligation on the HUF to perform the marriage of the daughters of the family and the amounts spent in the marriage in discharge of this obligat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses, although he marries before the decree in the suit is made. The case, however, of an unmarried daughter stands on a different footing. Her right to maintenance and marriage expenses out of the joint family property is in lieu of a share on partition; provision should accordingly be made for her marriage expenses in the decree (Rajagopala Ayyar v. Venkataraman [1947] 51 CWN 829 (PC)). It is only for the marriage expenses of the father's daughters or sisters that provision should be made out of the joint family property. The marriage expenses of the son's daughters form only the liability of his branch and not of the whole joint family unlike the case of the father's daughters (Ramchandra v. Seeniathal ILR [1955] Mad 732). Thus, if A has a son S and a daughter D by one wife, and a son S2 and a daughter D2 by another wife, and S brings a suit for partition, and D2 is married after the institution of the suit, one-third of her marriage expenses should be deducted out of his one-third share and as regards one-third of the marriage expenses of D his one-third share in the property may be charged with such expenses. But S is not liable for the marriage expenses of his brot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts out of the family property. The marriage is a sanskara and its expenses, therefore, are to be provided for out of the joint family property. A debt contracted for the marriage of a coparcener or the daughter of a deceased coparcener in a joint Hindu family is a debt contracted for a family purpose and, therefore, for the benefit of the family. See arts. 224 and 427. As to expenses of marriage after the institution of a suit for partition, see art. 304(2). As to the power of a widow to provide for the marriage expenses of her daughter out of her husband's estate, see art. 181B(iv)." In this connection, it may not be inappropriate to refer to the observations of the Madras High Court in the decision mentioned hereinbefore, that is to say, the observations of the court in the case of Subbayya v. Ananta Ramayya [1930] ILR 53 Mad 84 [FB]. It was observed that in a suit for partition, instituted by a Hindu governed by the Mitakshara law, against his father and his step-brother, the father claimed a provision for the marriage expenses of his daughters, one of whom was married subsequent to the suit and before the decree and two others were unmarried, and the plaintiff had conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the property under the Hindu law. We may also refer, in this connection, to the observations appearing at p. 425 under art. 333 where it dealt with a suit for partition, parties to the suit and what property it should comprise. Reliance was placed on the observations of the Supreme Court in the case of Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa, AIR 1964 SC 510. There, several questions came up for consideration before the Supreme Court. The questions were when there could be a valid adoption, under what circumstances the manager of joint Hindu family had power of alienation, the right of alienation of the manager and gift to a stranger. But one of the main questions that came up for consideration was the right of the father to alienate the property to make a gift in favour of the daughter or sister by way of a reasonable provision for her maintenance. There, the Supreme Court dealt with the position under the Hindu law and referred to verses 27, 28 and 29 in Chap. of the Mitakshara law which described the limitation placed on a father in making a gift of an ancestral estate. The Supreme Court thereafter observed that they did not expressly deal with the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gift does not depend upon the plurality of documents but on the power of the father to make a gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed instead of one cannot make the gift any the less a valid one." Learned advocate for the revenue, basing on the aforesaid observations of the Supreme Court, sought to urge that originally the texts gave the daughter or sister a share in the joint Hindu family property but that right was gradually lost and it became thereafter a moral right to maintain the daughter according to the financial and relevant circumstances of the family. It was sought, therefore, to be urged on behalf of the revenue that though there might be some moral obligations on the karta of the joint Hindu family to incur certain expenses or give a daughter of the family in marriage, there was no legal right for the daughter to obtain marriage expenses nor was there any legal obligation on the karta to incur such expenses. We are, however, unable to accept this position. As we have noted, the Supreme Court, in the text quoted in the aforesaid decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n obligation of religion and piety which is placed upon the sons under the Mitakshara law to discharge the father's debts, where the debts are not tainted with immorality. This liability of the sons to pay the father's debts exists whether the father be alive or dead (para. 290, Mulla's Hindu-Law, 14th Edn., p. 354). A further requirement is that for an effective partition of a Mitakshara joint Hindu family a provision for the joint family debts should be made. In order to determine what property is available for partition, provision must first be made for joint family debts which are payable out of the joint family property, personal debts of the father not tainted with immorality, maintenance of dependent female members and of disqualified heirs, and for the marriage expenses of unmarried daughters. This must be so because partition is of joint family property and if joint family debts are repaid before the partition only the residue would be available for partition. Therefore, if partition is effected before paying the debts, provision to pay the debts should be made so as to determine the residue available for partition." Therefore, the marriage of dependent family members an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ras High Court in the case of Thiruvathammal v. Vagunathan, AIR 1952 Mad 479. There the learned judge observed that the father had a legal obligation to meet the marriage expenses of his daughter if it was shown that there was a joint family property, but if there was no joint family property, the learned judge observed, the obligation of the father was only a moral or natural obligation but not a legal obligation. Our attention was, however, drawn on behalf of the revenue to certain observations in the case of CGT v. Tej Nath [1972] 86 ITR 96, where the Full Bench of the Punjab and Haryana High Court observed that a gift by the karta of an HUF of any portion of the family property, whether to other coparceners or to strangers, was void per se and not merely voidable and, therefore, there would be no gift within the meaning of the G.T. Act, which would be liable to gift-tax. There, however, the court was not dealing with a gift on the occasion of a marriage. Mr. Justice D. K. Mahajan observed at p. 104 of the report that in the instant case before their Lordships the gift to the daughter was not made at or about the time of her marriage. Therefore, whether a gift on other occasio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bom), where at pp. 19 to 21, the meaning of the expression "consideration in money or money's worth " was explained. What had happened in that case was that the payment was made in discharge of a legal obligation and payment was out of the fund to which the daughter had a share to be reimbursed. This decision is relevant for our present purpose. Reliance was also placed on the observations in the case of P. J. P. Thomas v. CIT [1962] 44 ITR 897 (Cal), where it was held that though marriage might be a good and valuable consideration for transfer of property to a lady who agreed to marry the transferor since it was not possible to determine the adequacy of such consideration, the marriage could not be regarded as an adequate consideration within the meaning of s. 16(3)(a)(iii) of the Indian I.T. Act, 1922. These observations, in our opinion, were made entirely in a different context and have no relevance to the present case. Similarly, our attention was drawn to the observations of the Supreme Court in the case of CGT v. N. S. Getti Chettiar [1971] 82 ITR 599, where it was held that partition of a property would not amount to a gift. Learned advocate for the revenue is absolutely r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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