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TMI Blog1970 (5) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... family. The assessment year with which we are concerned in this case is 1959-60, for which the" previous year " is the year commencing on October 23, 1957, and endings on November 10, 1958. The assessee owned movable and immovable properties which were his self-acquisitions. By a deed dated December 9, 1957, he threw into the common stock his houses bearing Nos. 6658-59 and 2731 situate at Imambavidi, Secunderabad, and a cash deposit of Rs. 1,50,000 in the firm of Messrs. Goli Eswariah, Paper Merchants, Secunderabad. In the books of account of the firm, necessary entries were made transferring the amount to the account of the family. The Gift-tax Officer treated that portion of the value of the properties so blended in which the assessee ceased to have a right on partition of the family as having been gifted by him to the family. He rejected the contention of the assessee that his act of throwing his self-acquired properties into the common stock did not amount to a gift under the Act. In appeal, the Appellate Assistant Commissioner took the view that since the deed in question was not registered, there was no transfer of the immovable properties to the family and as such there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aidu and VR. S. RM. Ramaswami Chettiar v. Commissioner of Gift-tax, a Full Bench of the Gujarat High Court in Dr. A. R. Sukla v. Commissioner of Gift-tax, a Division Bench of the Kerala High Court in P. K. Subramania Iyer v. Commissioner of Gift-tax, and a Division Bench of the Mysore High Court in Smt. Laxmibai Narayana Rao Merlekay v. Commissioner of Gift-tax, have taken a contrary view. To pronounce oil the question of law presented for our decision, we must first examine what is the true scope of the doctrine of throwing into the " common stock " or " common hotchpot ". It must be remembered that a Hindu family is not a creature of a contract. As observed by this court in Mallesappa Bandeppa Desai v. Desai Mallappa the doctrine of throwing into the common stock inevitably postulates that the owner of separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self-acquired properties. The separate property of a member of a joint Hindu family may be impressed with the chara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty by one person to another. " Person " is defined as including a Hindu undivided family in section 2(xviii). Section 2(xxii) says that " property " includes any interest in property, movable and immovable. Section 2(xxiv) defines " transfer of property " thus : " ' transfer of property' means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes : (a) the creation of a trust in property ; (b) the grant or creation of any lease, mortgage, charge, easement, licence, power, partnership or interest in property ; (c) the exercise of a power of appointment of property vested in any person, not the owner of the property, to determine its disposition in favour of any person other than the donee of the power ; and (d) any transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person ". The High Court relied on section 2(xxiv)(d) in answering the question referred to it in favour of the revenue. It came to the conclusion that the act of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other alienation of property ". Hence, it clear from the context that. the word " disposition " therein refers to a bilateral or a multi-lateral act. It does not refer to a unilateral act. In this connection reference may be usefully made to the decision of this court in Commissioner of Income-tax v. M. K. Stremann Therein, the assessee first threw his private properties into the common stock and afterwards there was a partition amongst the members of the family which included his two minor sons and a minor daughter, represented by their mother. The question arose whether the partition in question amounted to a transfer of assets by the assessee to the three minor children so as to attract the provisions of section 16(3)(a)(iv) of the Indian Income-tax Act, 1922. In that case, the revenue did not contend in this court that the act of the assessee throwing into common stock his self-aquired properties amounted to transfer of assets by the assessee to his three minor children. On the other hand, it contended that the partition that took place subsequently amounted to a transfer of assets of the assessee to his minor children. This court overruled that contention. Therein, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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