TMI Blog1976 (7) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer did not amount to a gift as contemplated by the Gift-tax Act, as the appropriation of joint family funds for the purpose of marriage of an unmarried daughter would not constitute a gift. This contention was rejected by the Gift-tax Officer, since the assessee was assessed as an individual in the income-tax records. He, however, held that the assessee, in his capacity as father, had made the gift in consideration of the marriage of the donee and granted exemption under section 5(1)(vii) besides the basic exemption under section 5(2) of the Gift-tax Act and determined the taxable gift at Rs. 43,000. He came to the conclusion that the value of the lands conveyed by the assessee to his daughter was Rs. 63,000 at the date of the conveyance. The assessee carried the matter in appeal and before the Appellate Assistant Commissioner it was contended on his behalf that he had got 27 acres of wet land on a partition between himself, his brother and his father on August 29, 1957, and that his correct status was that of Hindu undivided family, though due to ignorance of law, he erroneously declared his status as an individual for the purpose of income-tax. It was further contended on h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and out of the total extent of 27 acres and odd, which the assessee got on partition, was a reasonable provision for his only daughter's marriage and the same was not without consideration and did not fall within the meaning of "taxable gift" under the Gift-tax Act. The Tribunal did not go into the question of valuation of the transferred lands, as it was unnecessary in view of the finding regarding the non-taxable nature of the so-called gift. Therefore, at the instance of the revenue, the question set out hereinabove has been referred to us for our opinion. Sub-section (xii) of section 2 of the Gift-tax Act defines "gift" to mean the transfer by one person to another of any existing movable or immovable property made voluntarily and without consideration in money or money's worth. The rest of the definition is not material for the purpose of this judgment. Section 20 of the Hindu Adoptions and Maintenance Act provides for maintenance of children and aged parents. Under sub-section (1) of the said section, a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. Sub-section (b) of section 3 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack's Law Dictionary correctly brings out the import or intendment of the word "incident". Therefore, in order to find out whether conveyance of land on the occasion of the daughter's marriage can be said to be incident to the marriage, it must be found whether the usual custom or practice was to convey land on the occasion of a daughter's marriage so far as this particular community of the assessee or the family of the assessee was concerned. In Kamala Devi v. Bachulal Gupta, the Supreme Court had occasion to consider the position under the general Hindu Law regarding the power of a Hindu widow to make an alienation of a reasonable portion of her husband's property in favour of the daughter as marriage gift. S.K. Das J., who delivered the judgment of the court, has considered all the relevant authorities on this point from paragraph 14 onwards and in paragraph 20 the learned judge has summarised the legal position thus: "On an examination of the decisions referred to above the following principles clearly emerge: (1) It is the imperative religious duty and a moral obligation of a father, mother or other guardian to give a girl in marriage to a suitable husband; it is a duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asured in terms of money or money's worth and there is no objective measure for assessing the adequacy, it would not satisfy the provisions of the section though for purposes of enforcing the agreement or contract, there was consideration within the meaning of the Contract Act. The learned counsel for the assessee contended that the liability to maintenance is a financial obligation and that it could be measured in terms of money. In fact, section 23 of the Hindu Adoptions and Maintenance Act, 1956, sets out the facts and circumstances, which the courts shall have regard to in fixing the amount of maintenance. It may be the quantum depends on the evidence, but it cannot be said that the liability could not be measured in terms of money and that, therefore, the transaction is supported by adequate consideration. So ran the argument of the learned counsel for the assessee. The argument, of course, is attractive. But we are unable to accept the submission of the learned counsel. What is transferred is the property and not the income from the property alone. The property had been transferred irrevocably and for ever, though the liability to maintain is only so long as the son is a mino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e karta's wife, such consideration is money's worth and, hence, the payment was not a gift. " To the extent to which we have proceeded on the footing that, if the conveyance can be said to have been made to discharge the obligation of the father to provide maintenance for the marriage of his daughter in the shape of providing for reasonable expenses incident to the marriage, it can be said to be a transfer for consideration. This decision of the Madras High Court helps the assessee. We find from the order of the Tribunal that the Tribunal has not considered as to whether, looking at the usual practice among this particular community, the conveyance of 10 acres and 54 cents of land by the assessee to his only daughter could be said to be reasonable or not. No doubt, the Tribunal has observed that the conveyance could be said to be provision of reasonable expenses incident to the marriage. But the question as to whether this was the usual practice in this particular community has not been examined by the Tribunal. Two courses, as pointed out by the Supreme Court in Commissioner of Income-tax v. Indian Molasses Co. P. Ltd., are open to us: (1) to call for a supplementary stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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