1981 PLP 7 (PTD)

The case of the assessee throughout has been that it was a gift in futuro and not in praesenti, and, therefore, it was not liable to be taxed. That contention was negatived by all the authorities below. Therefore, the legal representatives of the assessee moved for a reference to this Court and the question referred to us is "Whether, on the facts and in the circumstances of the case, the gift of 50 % share in Subrahmanya Medical Hall was a gift of a future pro perty and consequently a void gift?" "Gift" is defined in clause (xii) of section

2. It means 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,' and includes the transfer of any property deemed to be a gift under section 4. "Transfer of Property" is again defined in clause (xxiv) of section 2 and it means "Any dispositions, conveyance, assignment, settlement, delivery, payment or other alienation of property and. without limiting the generality of the foregoing, includes . . . . (b) the grant or creation of any lease, mortgage, charge easement, licence, power, partnership or interest in property ; .." "Property" is defined in clause (xxii) of section 2 to include any interest in property, movable or immovable. The definitions given above will, therefore, take in any interest in property whether movable or immovable. Section 4 further enlarges the scope of gifts by including certain transfers. The intention of the donor was to effect a transfer in praesenti of his proprietary interest to the extent of his share in the medical shop. What he reserved for him self is only a limited right to enjoy the profits for the duration of his life. That limited right which he exercised will not make it a gift infuturo. A Full Bench of the Allahabad High Court in Lallu Singh v. Gur Narain (1) considered the question of the validity or otherwise of a deed of gift executed by one Tulsha Kunwar in favour of her only daughter. In the document, it was recited that the donor wished to give the entire property in seven villages to her daughter, but inasmuch as during her lifetime she had also to provide for her own maintenance, she considered it necessary to remain in possession of three out of those villages for her life, meeting the expenses of her maintenance and other necessary expenses from the pro fits thereof. Mears, C. J., who spoke for the Full Bench, observed (pagt471): A Hindu widow who is the full proprietor of immovable property, can by a registered, document, only, signed and attested, validly make an immediate gift of it, although she reserves to herself the enjoyment of the usufruct or profits of a part of the pro perty for her lifetime and without retaining any power of alienation over it. The reservation of a temporary advantage or a limited benefit does not necessarily militate against a complete transfer of the title, and unless there is something in Hindu Law which is repugnant to it it must be upheld." What is said of immovable property equally applies to movable property, as the expression "property" includes any interest in property, movable or immovable. A Division Bench of Madras High Court in S. R. Chockalingam Chettiar v. Commissioner of Gift Tax (1968) 70 I T R 397 (Mad.) held that the right to obtain a specified number of right shares under section 81 of the Companies Act, in a fresh issue of capi tal is a tangible right and is not interest in future property but in existing pro perty as defined in the Gift Tax Act. In that view, it upheld the order of the Tribunal directing the officer to levy gift tax on "the market quotations of the rights". Mr. W. V. V. Sundara Rao, however, invited our attention to a decision of a Division Bench of this Court in Smt. Valluri Janakamma v. Commis sioner of Gift Tax (1967) 66 I T R 255 (A P). The question there was whether a father or manager or coparcener of an undivided joint family can gift away the entire properties belonging to the joint family consisting of himself, his wife and daughter; and it was held that such a gift was invalid. In so holding, Jaganmohan Reddy, C. J. (as he then was), followed the decision of the Supreme Court in Gurumma v. Mallappa A I R1964 S C 510, where Subba Rao, J. (as he then was) observed "It must be remembered that the manager has no absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits." The present case is not one where the assessee had no power of dis posal over' the various items of property gifted by him since they are not the properties of any joint family ; and it was nobody's case that he could not make a valid gift of the items shown in the Scheduled to the settlement deed. Therefore, that decision has absolutely no appli cation at all to the facts of this case. The donor made a transfer of hi interest in the existing movable property which included medicines, furniture and other items then valued at Rs. 15,000 to his grandsons who have since come on record as the legal representatives of the decease assessee. Therefore, in view of the meanings given to the expression "gift", "transfer of property" and "property" in the Gift Tax Act, we have no hesitation in holding the that gift in question is a gift in praesenti and not in futuro. The question referred to us is, therefore, answered in the negative and in favour of the Department, There will be no order as to costs. Question answered in negative.