According to Muslim Personal Law in India, a gift is known as "Hiba". The gift under Muslim law is given effect by a declaration of gift by the donor and its acceptance by the donee. Here's how it is done:
It is trite law that Karta/Manager of a joint family property may alienate joint family property only in three situations, namely, (i) legal necessity (ii) for the benefit of the estate and (iii) with the consent of all the coparceners of the family. In the instant case, the alienation of the joint family property under Ex.P1 was not with the consent of all the coparceners. It is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained (See: Thimmaiah and Ors. Vs. Ningamma and Anr; (2000) 7 SCC409). Therefore, the alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation.{Para 12}
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Coram: S. ABDUL NAZEER; KRISHNA MURARI, JJ.
CIVIL APPEAL NO. 2582 OF 2010;
Dated: April 19, 2022
K.C. LAXMANA Vs K.C. CHANDRAPPA GOWDA & ANR.
Author: S. ABDUL NAZEER, J.
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IN THE SUPREME COURT OF INDIA
Civil Appeal Nos. 2913-2915 of 2018
Prasanta Kumar Sahoo and Ors. Vs. Charulata Sahu and Ors.
Hon'ble Judges/Coram:
A.S. Bopanna and J.B. Pardiwala, JJ.
Author: J.B. Pardiwala, J.
Decided On: 29.03.2023
Citation: MANU/SC/0326/2023.
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income, on which tax has been deducted at source, is assessable in the hands of a person other than deductee, then credit for the
proportionate tax deducted at source shall be given to such other
person and not the deductee. The proviso to sub-rule (2) provides
for deductee filing a declaration with the deductor giving
particulars of the other person to whom credit is to be given. On
receipt of such declaration, the deductor shall issue certificate for
the deduction of tax at source in the name of such other person.
The crux of section 199 read with Rule 37BA(2) is that if the
income, on which tax has been deducted at source, is chargeable
to tax in the hands of the recipient, then credit for such tax will be allowed to such recipient. If, however, the income is fully or
partly chargeable to tax in the hands of some other person because of the operation of any provision, like section 64 in the extant case, the proportionate credit for tax deducted at source should be allowed to such other person who is chargeable to tax in respect of such income, notwithstanding the fact that he is not the recipient of income. It is with a view to regularise the allowing of credit for tax deducted at source to the person other than recipient of income, that the proviso to Rule 37BA(2) has been enshrined necessitating the furnishing of particulars of such other person by the recipient for enabling the deductor to issue TDS certificate in the name of the other person. The proviso to Rule 37BA(2) is just a procedural aspect of giving effect to the mandate of section 199 for allowing credit to the other person in whose hands the income is chargeable to tax. The entire purpose of this exercise of allowing credit to the other person is to ensure that the benefit of tax deducted at source is availed once and that too, by the right person, who is chargeable to tax in respect of such income. It is just to streamline the procedure for giving effect to this intent and rule out the possibility of taking any inappropriate credit for the amount of tax deducted at source, firstly, by the recipient who is not chargeable to tax and secondly, by the person who is rightly chargeable to tax in respect of such income, that the procedural provision has been put in place in Rule 37BA(2). One needs to draw a line of distinction between substantive provision [section 199 read with Rule 37BA(2) without proviso] and the procedural provision [proviso to Rule 37BA(2)]. Non-compliance of a procedural provision, which is otherwise directory in nature, cannot disturb the writ of a substantive provision. {Para 6}
7. Adverting to the facts of the extant case, it is seen that out of
total interest income credited to assessee’s wife as per Form
No.26AS amounting to Rs.39.26 lakh, she included interest from
SBI in her total income to the extent of Rs.1,84,212/-. The
assessee included the remaining interest of Rs.37.42 lakh in his
income because of the applicability of section 64 of the Act. The
assesse and his wife claimed proportionate tax credit, which totals
up to Rs.2,94,474/-. This deciphers that the total interest income
received by the assessee’s wife got taxed partly in her own
assessment and partly in the assessment of her husband, the
assessee in question, as per the mandate of section 64. The
benefit of TDS has also been claimed accordingly. Merely
because the assessee’s wife did not furnish declaration to the bank
in terms of proviso to Rule 37BA(2), the amount of tax deducted
at source, which is otherwise with the Department, cannot be
allowed to remain with it eternally without allowing any
corresponding credit to the person who has been subjected to tax
in respect of such income. As the substantive provision of section
199 talks of granting credit for tax deducted at source to the other
person, who is lawfully taxable in respect of such income, we are
satisfied that the matching credit for tax deducted at source must
also be allowed to him. In view of the fact that the tax of
Rs.2,80,656/- has actually been deducted at source on the interest
income of Rs.37.42 lakh, we hold that the credit for such TDS
should be allowed to the assessee, who has been subjected to tax
in respect of such income. This ground is allowed.
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH, ‘A’ PUNE
BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND
SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER
आयकर अपील सं.
/ ITA No.675/PUN/2022
नधारण वष / Assessment Year : 2021-22
Anil Ratanlal Bohora, Vs. ACIT, Circle-1, Nashik
आदेश / ORDER
PER R.S. SYAL, VP :
Date of pronouncement 19-01-2023
In the instant case, it is admitted by the second defendant that the settlement deed dated 22.03.1980 (Ex.P1) is, in fact, a gift deed which was executed by the first defendant in favour of the second defendant ‘out of love and affection’ and by virtue of which the second defendant was given a portion of the joint family property. It is well-settled that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a ‘pious purpose’ and what is understood by the term ‘pious purpose’ is a gift for charitable and/or religious purpose. Therefore, a deed of gift in regard to the ancestral property executed ‘out of love and affection’ does not come within the scope of the term ‘pious purpose’. It is irrelevant if such gift or settlement was made by a donor, i.e. the first defendant, in favour of a donee who was raised by the donor without any relationship, i.e. the second defendant. The gift deed in the instant case is not for any charitable or religious purpose.
{Para 13}
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Coram: S. ABDUL NAZEER; KRISHNA MURARI, JJ.
CIVIL APPEAL NO. 2582 OF 2010;
Dated: April 19, 2022
K.C. LAXMANA Vs K.C. CHANDRAPPA GOWDA & ANR.
Author: S. ABDUL NAZEER, J.
Print PageThere is no ambiguity that the gift is a transfer without consideration. The legislature never conceptualised the gift for consideration or adequate consideration but it is a gratuitous transfer out of love and affection and sometimes for the spiritual benefit of the donor. It is incongruous to say that the gift is not a transfer. It has all the incident of transfer and the right, title and interest of the donor passes to the donee upon execution, registration and acceptances thereof.
The element of “transfer” divest the executant of the deed of all his right which came to be vested upon the recipient thereof may be by way of a gift which does not contain the consideration. Such right of the recipient cannot be taken without the payment of the consideration and precisely for such reason sub-Section(2) has been incorporated. The vested right can only be divested by well recognised mode of transfer. The hypothetical example can be made in this regard when ‘A’ gifted his immovable property to ‘B’ out of love and affection. B in turn wanted to sale the said property to any stranger as such deed of gift is not conditional one. He is entitled to receive the consideration although he acquired the right, title and interest by way of a gift which admittedly does not contain consideration.
In the light of the above, Section 2 should be interpreted when the court deprives a stranger to the property acquiring an interest by way of a gift and such right is being vested upon the heir specified in Class-I of the Schedule. It is anomalous when a co-sharer who gifted the property and the donee who received the property shall not be entitled to any consideration if the property by the operation of the law is directed to be given to the co-sharer or the heir is specified in Class-I of the Schedule. The proper meaning which can be assigned to sub- Section(2) of Section 22 is the moment the Court finds that an heir is entitled to a preferential right under sub-Section(1), in absence of any agreement, the consideration so determined shall pass to the stranger purchaser. Any other interpretation would render the provision otiose and redundant. The word ‘transfer’ has to be given a pragmatic meaning and not in conjunction with the consideration appearing in sub- Section(2) of Section 22 of the Act. If any restrictive meaning of the word transfer is given, it would be a premium to the heir divesting his right by way of a gift to wriggle out of mischief of the provision contained in sub-Section(1) of Section 22 of the Act.
We, thus, held that even a gift being the transfer comes within the ambit of Section 22 of the Act and the heir coming within Class-I of the Schedule is entitled to preferential right.
So far as the concluded transfer is concerned, we do not find any restriction having put under Section 22 to have its restricted applicability in case of proposed transfer if the transfer has been affected without his knowledge, still the heir can maintain the proceeding invoking the preferential right enshrined under Section 22 of the Act. We thus modifying the decree of the Trial Court to the extent that plaintiff has a preferential right in respect of Ka(1) Schedule Property.
IN THE HIGH COURT AT CALCUTTA
Harish Tandon, J.:
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26. The aforesaid fact can be ascertained from the surrounding circumstances such as taking into possession the property by the donee or by being in the possession of the gift deed itself. The only requirement stipulated here is that, the acceptance of the gift must be effectuated within the lifetime of the donor itself.
27. Hence, being an act of receiving willingly, acceptance can be inferred by the implied conduct of the donee. The aforesaid position has been reiterated by this Court in the case of Asokan v. Lakshmikutty, MANU/SC/0104/2008 : (2007) 13 SCC 210
14. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance.
(emphasis supplied)
28. In the present case, the gift deed itself contained certain recitals as mentioned below:
...Out of the aforesaid land in all the khasra's 1/2 part means 50 percent I am giving you in gift being my younger son with my pleasure. My elder son Shri Babu Singh has no objection to this gift ... From today you are the owner of the half of the land gifted to you and you will have possession hereafter. You have the complete right over the aforesaid land for cultivation from today onward. Now you get the gifted land mutated in your name... These lands have not been sold or under Will or under the gift earlier. Further I state that the aforesaid land is free from any debt liability... The registration of the aforesaid gift has been done by me in my sound physical and mental health with consent without any undue coercion and pressure from anyone. I have gifted the aforesaid land with my sweet will and wish...
These recitals clearly indicate that donor intended to part with ownership and possession immediately after the execution of the gift deed.
29. In order to show acceptance, the counsel for the Appellant drew our attention to the mutation records. The Mutation entry in the Revenue Record of Gram Sedriya, District Pali dated 28.10.1968 clearly reflects that half portion of Appellant's land was bestowed as a gift by the Appellant to his son through a registered instrument of gift dated 19.12.1963.
30. Furthermore, the statement dated 31.08.1984, rendered by the Appellant-donor before the Court of Additional District Magistrate indicates that the donee was already a major at the time of the execution of the gift deed. He further stated that after execution of the gift deed the donee started cultivating on the same.
31. The aforesaid statement of the Appellant-donor is completely supported by the statement made by the donee on 15.12.1988 before the Court of Additional District Magistrate. Therein, the donee clearly stated that, as he did not get along with his step-mother, he started living separately and the land was transferred to him by virtue of gift deed was under his possession and he was cultivating the same.
32. Therefore, the abovementioned circumstances clearly indicate that there was an acceptance of the gift by the donee during the lifetime of the donor. Not only the gift deed in itself contained recitals about transfer of possession, but also the mutation records and the statements of the both the donor and donee indicate that, there has been an acceptance of the gift by conduct.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 5650 of 2010
Decided On: 08.12.2020
Daulat Singh (D) thr. L.Rs. Vs. The State of Rajasthan and Ors.
Hon'ble Judges/Coram:
N.V. Ramana, S. Abdul Nazeer and Surya Kant, JJ.
Citation: MANU/SC/0926/2020
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