Om Prakash, C.J. 1. Pursuant to the direction of this court under Section 26(2) of the Gift-tax Act, 1958, the Income-tax Appellate Tribunal, at the instance of the Revenue, referred the following question, relating to the assessment year 1980-81, for the opinion of this court :
"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is right in holding that the transfer in question is not subject to levy of tax under the provisions of the Gift-tax Act ?"
2. The facts, as found by the Appellate Tribunal, are that the assessee made a gift of her self-acquired properties in favour of her daughter on the eve of the latter's marriage. The properties which are the subject-matter of the gift deed dated April 30, 1979, are as follows :
(a) 37 cents of land and a building thereon in Sy. No. 560/364 in Vanchiyoor Village inside East Fort, Trivandrum ; and
(b) 152 1/2 cents of land in Sy. No. 210/3A in Nemom village.
3. A return of gift was filed by the assessee on December 31, 1980. The Gift-tax Officer, for the purpose of gift-tax, estimated the value of these properties taking into consideration the value fixed by the Valuation Cell for the purpose of wealth-tax assessment of the donee for the subsequent years.
4. Aggrieved, the assessee carried the dispute in appeal before the Commissioner of Income-tax (Appeals). Apart from disputing the valuation of the properties as fixed by the Gift-tax Officer, the assessee contended before the appellate authority that no gift of the property was made by the assessee voluntarily, within the meaning of Section 2(xii) of the Gift-tax Act, but the properties were gifted by her to her daughter to discharge "a moral, if not a legal obligation to give her daughter in marriage and to provide for her comfortable living after marriage". The assessee relied on CGT v. Ch. Chandrasekhara Reddy [1976] 105 ITR 849 (AP), which in turn, relied on Kamla Devi v. Bachulal Gupta, AIR 1957 SC 434 and CG7 v. Ramanathan Chettiar [1969] 74 ITR 758 (Mad). The Commissioner of Income-tax (Appeals), studying these decisions, concluded in paragraph 13 of its order as follows :
"It is thus evident that for the transactions to be outside the scope of the Gift-tax Act, the transfer must be by a family which had remained joint and not only this, such a family must have properties. Only then can the expenditure or transaction be safely excluded from the application of the Gift-tax Act."
5. The Commissioner of Income-tax (Appeals), in paragraph 15 of its order, further found as follows :
"By now, it would be evident that the underlying thread in all these decisions is that the legal obligation to get a daughter married attached only to a joint family, so long as it remained joint, and additionally when such a family had properties. This principle cannot be extended to individual hands, as pointed out by the Madras High Court, and the moral or social obligation on a parent to get the daughter married suitably or otherwise cannot convert itself into a debt and attach itself to any individual properties held. In view of this, I hold that no portion of the settled property can said to be a transfer for consideration and hence exempt from the Gift-tax Act."
6. Both the assessee as well as the Revenue felt aggrieved by the order of the Commissioner of Income-tax (Appeals) and cross-appeals were filed by them before the Appellate Tribunal.
7. The assessee assailed the finding of the Commissioner of Income-tax (Appeals) before the Appellate Tribunal contending that the gift of the immovable properties made by her in favour of her daughter, was not liable to gift-tax. The Appellate Tribunal, relying on Mulla's Hindu Law, accepted the contention of the assessee and found as follows :
"From this, it is evident that the Hindu female is also under an obligation to maintain her legitimate or illegitimate children .....
From the above, we have to hold that the assessee is entitled to bequeath her property to her unmarried daughter for the purpose of marriage also.
The mother or the guardian apart from the father of the child has moral and legal obligation to maintain the children. In this case, the donor --mother--executed the gift deed bequeathing her property and jewellery in favour of the daughter at a time when the marriage of her daughter was about to take place. For a suitable bridegroom for the daughter of the assessee, parent must provide with properties in the form of immovable and movables like jewellery for their future life. It is not quite unnatural that a parent is prepared to bequeath the property before the marriage to fulfil the requirement for a happy married life of her daughter. From the facts of this case, it is clear that the assessee has bequeathed her property in favour of her daughter only for her well-being by getting married to a suitable husband . . . ."
8. To re-enforce their view, the Appellate Tribunal relied on a certificate from S.N.D.P. (an association of Eazhava community) and relying on that, it found as under :
"Further, the assessee has also produced the certificate from S.N.D.P. to show that the custom prevalent in her community is for the parents to give properties, and jewellery, etc., to the daughter at the time of marriage .."
9. Thus, the finding of the Appellate Tribunal is mainly based on the passages from Mulla's Hindu Law and on the custom, prevailing in the Eazhava community.
10. Before dealing with the question, it is nothing but appropriate to understand the correct position under the law, relating to maintenance. The Hindu Adoptions and Maintenance Act, 1956 (hereinafter to be referred to as "the Act"), which received the assent of the President on December 21, 1956, came into operation on that day. The Act has a codifying enactment. After the Act came into force, there is no scope for any customary usage, unless that is saved expressly. Section 4 of the Act clearly states that save as otherwise expressly provided, any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act. Section 4 further provides that any other law in force immediately before the commencement of this Act, shall cease to apply to Hindus, in so far as it is inconsistent with any of the provisions, contained in this Act. Thus, Section 4 of the Act gives overriding application to the provisions of the Act and in effect, lays down that in respect of any of the matters dealt with in the Act, it seeks to repeal all existing laws, whether in the shape of enactments or otherwise, which are inconsistent with this Act. The effect of this codified law is that immediately on the coming into operation of the Act, the law of adoption and maintenance hitherto applicable to Hindus whether by virtue of any text, rule or interpretation of Hindu law or any custom or usage having the force of law, ceases to have effect with respect to all matters dealt with in the Act. The Act does not merely crystallise or declare the existing law upon the subject of adoption and maintenance, but deliberately departs from the same in respect of certain matters. It supersedes prior law and lays down the whole law of adoption and maintenance in the form of a code and so far as it goes must be read as a complete enactment.
11. If we proceed with this clarity of thought, then it would be absolutely clear that the Tribunal erred in law in relying on the certificate from the S.N.D.P. which seeks to establish a custom prevalent in the Eazhava community, which the assessee belongs to.
12. Section 20(1) of the Act, which is relevant, is reproduced below :
"Subject to the provisions of this 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."
13. Sub-section (3) of Section 20 further provides as under :
"The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmamed daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or property."
14. Section 20(1) enjoins upon a Hindu to maintain his or her legitimate or illegitimate children, inter alia. Sub-section (3) of Section 20 narrows down the legal obligation to maintain an unmarried daughter, in so far as she is unable to maintain herself from her own earnings or property. In short, under Section 20, a Hindu is under legal obligation, to maintain, amongst others, her unmarried daughter(s), in so far as such unmarried daughter is unable to maintain herself from her own source of income. This obligation to maintain is personal and legal in character and arises from the existence of the relationship between the parties.
15. The daughter of the assessee in this case was married in May, 1979, and the gift deed was executed on April 30, 1979. Before the Appellate Tribunal, the assessee contended that the gift was made "for her future well-being and for her education here and abroad and for her livelihood out of her love and affection". The question is, whether the assessee was legally obliged to gift her properties to her daughter for her future well-being and for her education within and without India and for her livelihood after marriage. Under Section 20, the legal obligation is to maintain only an unmarried daughter. Codified law does not enjoin upon a Hindu to maintain a married daughter. The assessee also contended before the Appellate Tribunal that a custom prevailing in the Eazhava community, which she belongs to, enjoined upon her to provide post marriage security to her daughter and, therefore, the properties were gifted, so that her daughter, after marriage, might maintain the same standard of living, which she enjoyed in the family of her parents. Such facts and the custom which impelled the assessee to make a gift of her properties, are not contemplated by the provisions of the Act and, therefore, it must be held that the gift was not made by the assessee under the gift deed dated April 30, 1979, to discharge her legal obligation of maintenance. The liability to maintain the daughter ceased to exist upon her marriage. Any provision made for her post marriage security, is beyond the purview of Section 20.
16. Learned counsel for the assessee vehemently urges before us that under Section 3(b)(ii) of the Act, the gift deed was executed by the assessee as incident to her daughter's marriage. The inclusive definition of the word "maintenance" does not take within its ambit any provision made to ensure future security of the daughter after marriage. The argument of learned counsel for the assessee is that the words "and incident to", occurring in Sub-clause (ii) of Clause (b) of Section 3 are of wide amplitude and they take within their sweep even a gift made for the well-being and happiness of the daughter after marriage. Under Section 3(b)(ii), the reasonable expenses of and incident to the marriage of a daughter are included in "maintenance". Marriage expenses are of two types : (1) which are directly incurred for marriage ; and (2} which are incurred indirectly or incidentally to the marriage. In any case, gift of immovable property for ensuring future security of the daughter after her marriage cannot be said to be an expenditure, incidental to the marriage. Whatever expenses incurred on the marriage either directly or incidentally, relate to the marriage and only they are included in "maintenance". The inclusive definition of "maintenance" under Section 3(b)(ii) of the Act does not take within its ambit the post-marriage expenses. After codification of law on maintenance, we are of the considered view that there is no scope for argument that there is legal obligation on a parent to maintain his or her married daughter or to make a provision for her well-being and luxurious living after marriage.
17. As it was done before the first appellate authority, before us also, learned counsel for the assessee relied upon the case of Chandrasekhara Reddy [19761 105 ITR 849 (AP) which, in turn, relied on the case of Kamla Devi, AIR 1957 SC 434. These decisions were further relied on by the Andhra Pradesh High Court in CGT v. Bandi Subba Rao [1987] 167 ITR 66. The question is whether any aid can be taken from the decision of the Supreme Court in Kamla Devi's case, AIR 1957 SC 434, which related to the pretodification era. In Kamla Devi's case, AIR 1957 SC 434, a suit was instituted for a declaration that a deed of gift dated March 10, 1940, executed by Smt. Sumithra Devi in favour of her daughter, Kamla Devi, was void and inoperative beyond the lifetime of Sumithra Devi and was not binding on reversion. Reviewing the case law on the question, the Supreme Court held that (i) it is 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 which must be fulfilled to prevent degradation and direct spiritual benefit is conferred upon the father by such a marriage ; and (ii) that a Hindu widow in possession of the estate of her deceased husband can make an alienation for religious acts which are not essential or obligatory, but are still pious observances which conduce to the bliss of the deceased husband's soul. This legal position, as enunciated by the Supreme Court was germane to the pre-codification era. The Supreme Court referred to the religious and moral obligation and not to the legal obligation, which emerged only from the Adoptions and Maintenance Act, 1956. The rule laid down by the Supreme Court in Kamla Devi's case, AIR 1957 SC 434, cannot be applied to the gifts made in the post codification era, because during that period, gifts will be governed by the Act only. The ratio of the decisions of the Andhra Pradesh High Court in Chandrasekhara Ready's case [1976] 105 ITR 849 and CGT v. Bandi Subba Rao [1987] 167 ITR 66 which rested on the decision of Kamla Devi's case, AIR 1957 SC 434, with respect we say, do not have persuasive force, inasmuch as these decisions have not taken cognizance of the full scope and reach of the codified law and as they were founded on the decision of the Kamla Devi's case, AIR 1957 SC 434, which cannot be availed of for the gifts made after the Act having come into force.
18. To sum up, we are of the considered view that the gift deed dated April 30, 1979, executed by the assessee in favour of her daughter to secure her future after marriage was not due to any legal obligation enjoined upon the assessee by virtue of Section 20 of the Act, but for other considerations and, therefore, the gift being voluntary within the meaning of Section 2(xii) of the Gift-tax Act, was liable to tax. For these reasons we agree with the view taken by the first appellate authority on this point and hold that the Appellate Tribunal was not right in holding that the gift deed dated April 30, 1979, was executed by the assessee to discharge her legal obligation, emerging from Section 20 of the Act.
19. We, therefore, answer the abovementioned question in the negative, that is, in favour of the Revenue and against the assessee.