Kania, J.

1. These are three references made by the Income Tax Appellate Tribunal under section 256(1) of the Income Tax Act, 1961, on reference applications made by the assessee. The assessment years with which we are concerned are the assessment years 1964-65, 1965-66 and 1966-67. As the Tribunal has submitted a common statement of the case in respect of these references and as the controversies in the references are common, we are disposing of the references by this single judgment.

2. The assessee is a Hindu undivided family (for brevitys sake, referred to hereinafter as "HUF") of Gangadhar Narsingdas Agrawal. The said Gangadhar was the karta of the Hindu undivided family. It appears that Gangadhar received Rs. 60,000 in cash from his father in March, 1950, when he was a student aged 18 years. Within a decade, he acquired wealth amounting to Rs. 1,50,00,000 in Goa which was then a Portuguese territory. The said wealth belonged to the assessee, namely, the Hindu undivided family. Gangadhar as the karta of the family made several gifts. The gifts with which we are concerned are a gifts of immovable property of the value of Rs. 4,00,000 to his wife and gifts of money amounting to Rs. 4,80,000, Rs. 1,00,000 and Rs. 45,000 in the previous years relevant to the Rs. 4,80,000, Rs. 1,00,000 and Rs. 45,000 in the previous years relevant to the assessment years 1964-65, 1965-66 and 1966-67, respectively, to his relations. The gift of immovable properties of Rs. 4,00,000 was made by Gangadhar to his wife in 1963. From the order of the Income Tax Officer, it appears that gifts aggregating to Rs. 4,80,000 were made by Gangadhar in the previous year relevant to the assessment year 1964-65 and they were gifts to his sister-in-law, nephew, niece, cousin and a sister. Gifts amounting to Rs. 1,00,000 in cash were made by Gangadhar to two of his nephews in the previous year relevant to the assessment year 1965-66 and gifts amounting to Rs. 45,000 in cash were made in the previous year relevant to the assessment year 1966-67 by Gangadhar to his sister-in-law and to his sister, respectively. The Income Tax Officer held that these gifts were not valid in law and he taxed the income earned on the property and the amounts gifted in the hands of the assessee. On appeals preferred by the assessee to the Appellate Assistant Commissioner, the Appellate Assistant Commissioner took the view that the gifts were valid and he deleted the addition to the income made by the Income Tax Officer. On second appeal preferred by the Revenue, the Income Tax Appellate Tribunal took the view that the said gifts were void and upheld the view of the Income Tax Officer that the income earned from the property and sums gifted was liable to be added to the assessees income.

3. From the aforesaid decision of the Tribunal, the following four questions have been referred to us for determination :

"(1) Whether, on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the gifts of immovable properties of the value of Rs. 4,00,000 to the wife of the karta of the assessee-Hindu undivided family were void and ineffective in law

(2) Whether, in any event, the said gifts were valid in law after November, 1966, when a partial partition was effected

(3) Whether, on the facts and in the circumstances of the case, the gifts amounting to Rs. 4,80,000 Rs. 1,00,000 and Rs. 45,000 for the assessment years 1964-65, 1965-66 and 1966-67, respectively, made by the karta of the assessee-Hindu undivided family to the relations of the karta are void and ineffective in law

(4) Whether, in any event, the gifts having been completed and possession of the amount and property gifted having been given to the donees of the gifts who have received the amount and used the same for themselves and paid tax thereon, the Tribunal erred in law in treating the income on the amounts gifted as the income of the assessee-Hindu undivided family on the ground that the gifts when made were bad in law "

4. As far as question No. 2 is concerned, Mr. Joshi, learned counsel for the assessee, submitted that he did not desire that the said question should be answered by us and accordingly we decline to answer the same.

5. We propose to consider first the question as to the legal validity of the gift of immovable properties amounting to Rs. 4,00,000 made by Gangadhar as the karta of the assessee Hindu undivided family to his wife. In respect of this gift, the submission of Mr. Joshi is that this gift made by Gangadhar to his wife is voidable but not void and it is only one of the members of the assessee-Hindu undivided family who could apply for setting aside that gift. As no such application was made, it was not open to the Income Tax authorities to treat the said gift as void or invalid and to include the income earned from the same in the income of the assessee on that footing. It was, on the other hand, contended by Mr. Jetly, learned counsel for the Revenue, that Gangadhar as the karta had no power in law to make the said gift of immovable properties to his wife. The gift made was altogether beyond the power of the karta and hence was void and not merely voidable.

6. The controversy raised in this question has, to some extent, been considered in certain judicial decisions which it would be useful to notice. In Ammathayee alias Perumalakkal v. Kumaresan alias Balakrishnan : [1967]1SCR353 , one of the controversies related to a gift made by a deceased a favour of his second wife of certain immovable property belonging to his joint family. In connection with this question, the Supreme Court observed as follows (p. 572) :

"Hindu law on the question of gifts of ancestral property is well settled. So far as movable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits... But so far as immovable ancestral property is concerned, the power of gifts is much more circumscribed than in the case of movable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for pious purposes (see Mullas Hindu Law, 13th Edn. para. 236, P. 252). Now what is generally understood by pious purposes is gift for charitable and/or religious purposes. But this court has extended the meaning of pious purposes to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfillment of an ante-nuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead."

7. The Supreme Court went on to observe (p. 573) :

"But we have not been referred to a single case where a gift by a husband to his wife of immovable ancestral property, if made, has been upheld. We see no reason to extend the scope of the words pious purposes beyond what has already been done in the two decisions of this court to which reference has been made. the contention of the donee-appellant that the gift in her favour by her husband of ancestral immovable property made out of affection should be upheld must, therefore, fail, for no such gift is permitted under Hindu law in so far as immovable ancestral property is concerned."

8. In Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa : [1964]4SCR497 one of the controversies related to a gift made by one Chanbasappa as the karta of his Hindu undivided family to one Channappa, In the deed of gift, it was stated that the gift was made in token of love for the services rendered by the donee to the donor during his lifetime and that the donee was a relation of the donor. It was also stated that the gift was made out of love and affection. The gift was of immovable property valued at Rs. 1,500. A perusal of the judgment shows that Channappa was an outsider as far as the joint family was concerned, being neither a coparcener nor a member of the Hindu undivided family of which Chanbasappa was the karta. After referring to some authoritative commentaries on Hindu law, the Supreme Court observed as follows (p. 516) :

"The decisions of Hindu law sanctioned gifts to strangers by a manager of a joint Hindu family of a small extent of property for pious purposes. But no authority went so far, and none has been placed before us, to sustain such a gift to a stranger, however much the donor was beholden to him on the ground that it was made out of charity. 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. We cannot extend the scope of the power on the basis of the wide interpretation given to the words pious purpose in Hindu law in a different context. In the circumstances, we hold that a gift to a stranger of a joint family property by the manager of the family is void."

9. Both the aforesaid decisions of the Supreme Court have been considered by a Full Bench of the Punjab and Haryana High Court in CGT v. Tej Nath . The gifts in question were of a large area of land belonging to the Hindu undivided family of Tej Nath, the very assessee who was the very party concerned in the aforesaid case. The gifts were of the said land in equal shares to the assessees wife, his mother, his stepmother and some other persons. The assessee, Tej Nath, himself took up the contention that the said gifts were void ab initio. It was, on the other hand, contended by the Revenue that the gifts in question were voidable, but not void. This is the very question before us, although in this case it is the Revenue which contends that the said gift to the wife is void and the assessee who contends that the gift is merely voidable. After referring to the aforesaid decisions of the Supreme Court and certain other decisions and certain commentaries on Hindu law, the Full Bench took the view that the position in Hindu law is that whereas the father as the karta has the power to gift ancestral or coparcenary immovable property. He can, however, make a gift within reasonable limits of ancestral immovable property for pious purposes. The Full Bench took the view that the text of Hindu law clearly shows that the father cannot make a gift of immovable property belonging to the coparcenary to his minor sons. The Full Bench took the view that the gifts in question were void. The Full Bench has pointed out in this decision that the line has to be sharply drawn between alienations by way of sale or exchange and gratuitous gifts. In the case of alienations other than gifts by a karta of the Hindu undivided family, the alienations in the very nature of this would be voidable, because the karta cannot avoid the gift, whereas in the case of gifts, the alienation would be void per se because even the karta can avoid the gift.

10. We now come to the decision of this court in Tatoba Ganu Mohite v. Tarabai Kedari Tambe : AIR1957Bom280 . In that case, one Balgonda, the manager of a joint family consisting of himself and his two brothers, in his capacity as the managing member, executed a deed of gift in respect of ancestral property held by the joint family in favour of the plaintiff. The motive for the gift, as recited in the deed of gift, was the friendship which subsisted between the family of the plaintiff and the donors grandfather. It was observed by Dixit J., in his judgment, as follows (at p. 282 of AIR) :

"In case of a managing member, he has a representative character. A managing member represents the family in the familys relations towards the rest of the world. In the case of a gift, however, the position under Hindu law is different... If an individual member, i.e., a coparcener, cannot make a valid gift in respect of his undivided interest in the coparcenary property, we fail to see how a managing member would be able to make a valid gift in respect of the family property."

11. Dixit J. pointed out that there is an essential difference between the case of a deed of sale and a deed of gift (at p. 283 of AIR). It was pointed out by Dixit J., that the deed of gift in question was not affirmed at any time by other coparceners. Vyas J., in his concurring judgment, has stated as follows (at p. 288 of AIR).

"Mr. Paranjpe says that this is a case of a donor having merely exceeded his power and, therefore, the gift is not void but voidable. The contention must fail. Where there is power, there can be a case of an excess in the exercise of power. Where there is a right, there can be a case of an excess in the exercise of that right. Where there is no power at all to start with, no question can arise of a person having acted in excess of it. A person has no power at all to give away that which is not his own. If a person gives away what is not his own, he does not do something which is merely in excess of his power, but does what he has no power to do. Here what Balgonda gave away was not his own. Therefore, the gift was void ab initio."

12. The submission of Mr. joshi in connection with these judgments is that the Supreme Court has not specifically held in Guramma v. Mallappa : [1964]4SCR497 or Ammathayee alias Perumalakkal v. Kumarasen alias Balakrishnan : [1967]1SCR353 , that the gifts in question were void, and hence these cases cannot be taken as deciding that gifts of immovable property belonging to the coparcenary by a karta to his wife are void. It was submitted by him that the decision of the Full Bench of the Punjab and Haryana High Court in CGT v. Tej Nath is not good law. In support of his submission that such a gift would be voidable but not void, Mr. Joshi relied upon the decision of the Supreme Court is Raghubancchmani Prasad Narain Singh v. Ambica Prasad Singh : AIR1971SC776 . This is a decision of a Division Bench comprising two learned judges of the Supreme Court. Mr. Joshi strongly relied upon the observations in paragraph 5 of the judgment that, "In any event an alienation by the manager of the joint Hindu family even without legal necessity is voidable and not void". In our opinion, Mr. Joshis reliance on this decision is somewhat misplaced. In the first place, in the case relied on by Mr. Joshi, the question did not relate to a gift or immovable property, but to a settlement of immovable property. The facts recited in the judgment shows that the High Court in the judgment appealed against had found that this property was settled not merely gratuitously but because the two persons on whom it was settled were gotias of the family of the appellant, that in respect of certain lands taken away from them no consideration had been paid, that all along these persons helped the zamindar who was the ancestor of the settlor in a previous litigation and certain promises were made to them as reward for services rendered which till then were not rewarded. Thus, the settlement made was not gratuitous like a gift but was for consideration. In fact, the High Court in the judgment appealed against had taken the view that the settlement was beneficial to the estate as an act of a prudent manager by the Raja. These facts clearly show that the ratio of the case and observations therein are not applicable to the case before us.

13. Mr. Joshi next relied upon the decision of a Division Bench of the Madras High Court in CGT v. R. M. D. M. Ranganathan Chettiar : [1982]133ITR890(Mad) . This decision, we are afraid, is of no assistance to Mr. Joshi at all. In that case, the karta of the assessee-Hindu undivided family gifted a half share of the immovable property and the movables valued at Rs. 20,000 belonging to the family to his wife. The High Court on reference took the view that the gift of immovable property by the karta of a Hindu undivided family to his wife was not valid. This decision nowhere supports the contention that the gift was merely voidable nut not void. What was held by the Madras High Court was that the gift was "invalid", which is quite consistent with its being void.

14. The decisions of the Supreme Court in Ammathayee alias Perumalakkal v. Kumaresan alias Balakrishnan : [1967]1SCR353 , and Guramma Bhratar v. Mallappa : [1964]4SCR497 , contains passages to which we have already referred. These passages, although they do not state specifically that the gift of an immovable property belonging to the coparcenary by the karta to his wife is void, lead to a conclusion that such a gift would be void. In fact, these decisions have been so interpreted by the Full Bench of the Punjab and Haryana High Court in CGT v. Tej Nath and, with respect, we agree with the view taken by the Punjab and Haryana High Court. In view of what we have stated, we are of the view that the gift of immovable property by the assessee as the karta to his wife must be regarded as void and ineffective in law.

15. As far as question No. 3 is concerned, the gifts in question were made by the karta of the assessee-Hindu undivided family to some of his relatives. The order of the Income Tax Officer to which we have referred earlier shows that these relations are the sister-in-law, nephews, niece, cousin and sister, respectively, of the karta. In this regard, we may point out that in the judgment in the case of Guramma v. Mallappa : [1964]4SCR497 , the Supreme Court has clearly stated as follows (p. 517) :

"We cannot extend the scope of the power on the basis of the wide interpretation given to the words pious purposes in Hindu law in a different context. In the circumstances, we hold that a gift to a stranger of a joint family property by the manager of the family is void."

16. Although in the case before the Supreme Court, the gift was of immovable property, in our view, the aforesaid observation of the Supreme Court is applicable equally to the case of a gift of movable property. In CGT v. Tej Nath , decided by the Full Bench of the Punjab and Haryana High Court, the gifts in question were of immovable property by the karta, inter alia, to the wife of his brother, his mother, his stepmother and others. As we have already pointed out, it was held by the Full Bench that gifts by the karta of a Hindu Undivided Family of immovable property belonging to the family, other than gifts for pious purposes, are void per se and not merely voidable. The observations in the judgment of the Full Bench show that the aforesaid relatives, although they were close relatives of the karta, were regarded as strangers to the Hindu undivided family and not as members of the Hindu undivided family. In our view, with reference to a Hindu undivided family (HUF), the only persons who can be regarded as members thereof are the coparceners, their respective wives, daughters, their sons and grandchildren and others recognised as such according to the texts of Hindu law and, although other persons may be related to the karta or coparceners, in the context of the family they must be regarded as strangers. Mr. Joshi, however, submitted that close relatives of the karta like the ones in question before us cannot be regarded as strangers to the family, and in support of that contention, he relied upon the decision of a Division Bench of the Punjab and Haryana High Court in CIT v. Daljit Singh . In that case, the gifts were, inter alia, of movables, namely Hindu undivided family funds to the respective wives and minor children of the kartas brothers. The Division Bench took the view (pp. 724-25) that the donees were nearly related to the donor and the gifts made by the karta, as the donor, on account of love and affection to these relatives cannot be said to be void. If the gifts are of excessive amounts or are not given for love and affection, these may be termed as voidable and can be challenged by the sons and not by third persons. With respect, we are unable to agree with this view. As we have already pointed out, the decision of the Full Bench of the Punjab and Haryana High Court in CGT v. Tej Nath contains observations which would clearly suggest that relatives of the karta, other than the members of the Hindu undivided family, must be regarded as strangers, as far as joint family is concerned, and, with respect, we agree with the view of the Full Bench. The observations contained in the decision of Tatoba Ganu Mohite v. Tarabai Kedari Tambe : AIR1957Bom280 , clearly show that as far as the karta is concerned, his acts of management are merely in a representative capacity, and therefore, in our view, it cannot be open to him to gift away even movable property of the joint family to his relatives who are strangers to the family, except for pious purposes. Moreover, we find that the Division Bench of the Punjab and Haryana High Court which decided the case of CIT v. Daljit Singh , has relied upon the decision of a Division Bench of the Punjab High Court in Raghbir Singh Sandhawalia v. CIT , which was, in fact, not a case of a gift by the karta to a stranger at all, but to his second wife, who was clearly a member of the joint family. It is significant that even then the gift was held to be voidable and not valid. In the result, in our view, the gift of movables referred to in question No. 3 must be regarded as void.

17. Coming now to question No. 4 the submission of Mr. Joshi, learned counsel for the assessee, is that even if the gifts in question are regarded as void, the fact remains that the properties gifted away went into the hands of the donees, and it is the donees who have derived income therefrom, and paid the tax on that income and hence the donor, as the karta of the Hindu undivided family, cannot be taxed in respect of this income. In support of this contention, Mr. Joshi relied upon the decision of a Division Bench of the Rajasthan High Court in CIT v. Motilal Ramswaroop and Commissioner of Wealth-tax v. Motilal Ramswaroop . In that case the karta of a Hindu undivided family gifted an aggregate amount of Rs. 4,00,000 to seven divided members of his family. The Income Tax Officer did not accept the gifts on the ground that the karta of the assessee-family was not competent to make the gifts in question. The Income Tax Officer included the income earned on the said sum of Rs. 4,00,000 in the income of the assessee. On a reference to the High Court, both under the Income Tax Act and the Wealth-tax Act, it was held by the High Court that the interest accrued on the gifted amounts did not accrue to the assessee-family for the purpose of Income Tax on either view, namely, whether the gifts of Rs. 4,00,000 were void or voidable. The entire sum had passed into the hands of the other persons and they were earning income from the same and not the assessee. The Income Tax Act taxes the person whose income it is and not the person who may, per chance, have title to the property through which the income had been earned. With respect, we are unable to agree with the decision in the aforesaid case or to accept the submission of Mr. Joshi. We may point out that under section 4 of the Income Tax Act, the charge of Income Tax is in respect of the total income of every person. Section 5 defines the scope of the term "total income", and, inter alia, states that, in case of a resident, it includes all income which is received or deemed to be received in India by or behalf of a resident-assessee. Section 9 deals with incomes which were deemed to accrue or arise in India. In the present case, if the gifts were void, it was the assessee-Hindu undivided family which retained the title to the properties gifted away and the income from these properties gifted must be regarded in law as accruing or deemed to be accruing to the assessee. We may make it clear that this is not a case where the property of an assessee has been taken away against his wishes or without his knowledge and income earned by another person from such property. In such a case, perhaps, different considerations might arise, but we are not concerned with such a case. In the present case, the gifts were made by the assessee himself, and, if the view were taken that, even if the gifts were void, the income therefrom would not be regarded as the income of the assessee, it would amount to allowing the assessee to take advantage of his won wrong and avoid his liability to pay Income Tax. We are of the view that the income from the properties gifted must be regarded as the income of the assessee-Hindu undivided family and was liable to be included in the income of the assessee-Hindu undivided family.

18. In the result, the questions referred to us are answered as follows :

Question No. 1 : In the negative.

Question No. 2 : As far as this question is concerned, we decline to answer the same as the assessee does not desire that the same should be answered.

Question No. 3 : In the affirmative.

Question No. 4 - In the negative.

19. It is clarified that all the questions are decided are answered against the assessee.