A gift of a joint family asset by the karta to his wife without the consent of the other coparcener is not void but merely voidable and is valid and effective to divest the family of its title to the said shares if it is made with the intention of making a gift, is reasonable, and is not made with the intention of avoiding payment of income-tax.

BHANDARI, J.

1. The following question has been referred to this counter under section 66(1) of the Income-tax Act, namely :

"Whether the gift of a joint family asset worth Rs. 2,40,000 by Shri Raghbir Singh, karta of the family, to his wife, Sardarni Ahalya Bai, not being a transfer for consideration or in pursuance of any ante-nuptial arrangement or in connection with any arrangement to live apart, is valid and effective to divest the family of its title to the said shares without the consent of the other adult coparcener, Shri Raghbir Singhs son, Shri Harindar Singh ?"

2. Sardar Raghbir Singh, assessee, and his only son Sardar Harindar Singh are members of a Hindu undivided family which possesses landed and other property, the value of which runs into several millions.

3. Sardar Raghbir Singhs wife, Sardarni Sujan Kaur, died in the year 1943 and he contracted a marriage with Sardarni Ahalya Bai in or about the year 1945. On the 31st March, 1949, the assessee made a transfer entry in the books of the family debiting the capital account with a sum of Rs. 2,40,000 representing 80 per cent. share capital of 300 shares of the Simbholi Sugar Mills Limited and crediting the account of Sardarni Ahalya Bai with a corresponding amount. In the year 1950-51 the assessee, who is the karta of the Hindu undivided family, submitted a return in which he declared an income of Rs. 1,03,952. This return did not include the income on 300 shares of the Simbholi Sugar Mills which had been transferred by the assessee to his wife. Sardarni Ahalya Bai submitted a separate return of her own in which she declared that she had received a sum of Rs. 48,000 by way of income on the shares which had been transferred to her. The Income-tax Officer came to the conclusion that the assessee had transferred property to his wife without the consent of the other coparcencer, that this transfer was effected without legal necessity and without a corresponding benefit to the estate arising out of this transfer, and that the gift of property was neither reasonable nor for performing indispensable acts of duty nor for pious purposes. He accordingly included in the familys assessment for the year 1950-51 an income of Rs. 48,000 on account of the dividend on the shares which had been transferred to his wife. The order of the Income-tax Officer was upheld by the Appellate Assistant Commissioner and later by the Appellate Tribunal. In one of the paragraphs of the order the Tribunal observed as follows :

Obviously the transfer, if real, was without consideration. It is not in pursuance of any ante-nuptial arrangement, nor is it in connection with any agreement to live apart. The gift of a point family asset of such magnitude (Rs. 2,40,000) by the Karta to his wife would be void. There is nothing to show that his son consented to the gift. Raghbir Singh says in an affidavit filed by him on September 30, 1950, that this son has no objection to the transfer; but the assertion should come from the son himself, not from the father who is the author of the alleged gift. The son would have, of course no objection to the transfer of registry of the shares to his stepmother, if that would lighten the tax burden on the family, so long as the real title of the family to the shares is not affected. In the absences of a contemporaneous solemn declaration irrevocably binding on both the male coparceners that the transfer to the lady was a real and valid gift inteded to be acted upon for all purposes, we are unable to hold that the shares have ceased to belong to the family. We confirm the inclusion in the familys assessment for 1950-51 of the dividend income from shares in Sardarni Ahalayas name."

4. At the request of the assessee the Tribunal has referred to this court the question which has been set out at the commencement of this order. S. Dewa Singh, who appears for the assessee, contends that the question as framed does not bring out the matters in controversy between the p