1. This is assessee's second appeal arising out of gift-tax proceedings for assessment year 1984-85. We have heard the learned counsel for the assessee and the learned Departmental Representative and have perused the material placed before us.
2. The assessee filed a return of gift on 30-7-1984 showing a taxable gift of Rs. 95,000. Later, a revised return was filed on 24-4-1986 showing that there was no gift at all. The facts are that on 19-8-1983 the assessee transferred, a sum of Rs. 1 lakh to her daughter Miss Archana Modi. The amount was paid through cheque and the cheque was forwarded to the assessee's husband and the father and natural guardian of Archana Modi, i.e., Seth Vinay Kumar Modi along with a letter dated 19-8-1983 as below: Since our daughter, Miss Archana Modi, has crossed the age of 16 years, both of us are under an obligation to marry her.
I have, therefore, set apart Rs. 1 lac for her marriage. A cheque No. 085574 of even date in her favour drawn on State Bank of India, Modinagar, is handed over to you.
Please accept the same on behalf of Miss Archana Modi towards her proposed marriage expenses from me.
The cheque was accepted and was duly deposited in the account of Miss Archana Modi. It is claimed in the statement of facts accompanying the memorandum of appeal before the AAC that the revised return was filed because the assessee was advised that the gift made to the daughter for her marriage cannot be termed as gift under the Gift-tax Act, as the parents of the daughter were under obligation to marry her and to provide for the marriage expenses. This contention of the assessee has not been accepted by the authorities below and hence this appeal.
3. At the hearing before us the learned counsel for the assessee contended that under Section 20 of the Hindu Adoptions and Maintenance Act, an unmarried daughter is entitled to be maintained by her parents and that maintenance as defined in Section 3(b)(ii) of the said Act in the case of an unmarried daughter includes reasonable expenses of and incidental to her marriage. Therefore, according to the learned counsel when the mother set apart a sum of Rs. 1 lakh for the marriage expenses of her daughter, there was no gift and it was only an expenditure in connection with and incidental to the marriage. Reliance was placed upon the cases of CGT v. Basant Kumar Aditya Vikram Birla  137 ITR 72 (Cal.), CGT v. Bandlamudi Subbaiah  123 ITR 509 (AP), CGT v. Dr. (Mrs.) Neelambal Ramaswamy  164 ITR 369 (Mad.) and CGT v.M. Radhakrishna Gade Rao  143 ITR 260 (Mad.). Reliance was also placed on a judgment of Hyderabad Bench of this Tribunal in Smt. K.Venkata Seshamma v. GTO  20 TTJ 498. The learned Departmental Representative, on the other hand, contended that this was a gift pure and simple and cannot be considered as an expenditure in connection or incidental to the marriage of the daughter. In the alternative he also contended that the daughter had sufficient income and property of her own and, therefore, in terms of Sub-section (3) of Section 20 she was not entitled to any maintenance.
4. There can be no doubt that under the scriptural Hindu Law as well as under the Hindu Adoptions and Maintenance Act, 1956, a daughter is entitled to be maintained by her parents till she is married and the obligation to maintain has always included the obligation to meet the expenditure relating to the daughter's marriage according to the family status and circumstances. The obligation regarding expenditure on marriage is specifically mentioned in the definition of maintenance in Section 3 of the Act. Sub-section (3) of Section 20 then specifically provides that the obligation regarding maintenance of parents or an unmarried daughter extends so far as the parent or the unmarried daughter is unable to maintain himself or herself out of his or her own earnings or other property. In the case before us the learned counsel for the assessee contended that the payment of Rs. 1 lakh by the assessee to her daughter was not a gift and Shri Vaish specifically stated before us that the asseesee does not want her case to be brought under Section 5(1)(vii) of the Gift-tax Act as a gift in respect of marriage of a dependent relative. His contention specifically was that the payment of Rs. 1 lakh was an expenditure on the contemplated marriage of the daughter. The marriage was performed on the 6th December, 1985, i.e., 271/2 months after the transfer of the money and there is nothing before us to show that the marriage had been settled or was being negotiated. Under the Maintenance Act, it is the legal obligation of a parent to meet the reasonable expenses of the marriage of a daughter. Now giving away of money to the daughter herself much before the marriage so that the girl could spend the money as she likes would not be the same thing as meeting the expenses of the marriage by the parent. By the transfer of money in the manner in which the assessee purports to have done in the case before us the mother may enable the girl to meet some or all the expenses of her own marriage but that does not mean that it is the mother who is incurring the expenditure and thereby discharging her legal obligation. What the law obliges a parent is to marry a daughter suitably. There is no obligation on a parent to provide money to the daughter several years before the marriage so that she could Utilise the money as she likes or may herself meet the expenditure of her marriage whenever desired. We have already reproduced the content of the letter addressed to the father of the girl by the assessee which reflects her intention that this money may be spent on her marriage but there was no obligation in contemplation that the money should not otherwise be used. There was no stipulation that if the money was not utilised for marriage, it would be refunded back to the mother.
5. An obligation to marry an unmarried daughter, although legal, is of a very contingent and inchoate nature. The girl may refuse to marry, she may choose to marry in a form requiring no expenditure and may not be willing to take any gifts, etc. No parent can force a daughter to marry nor can they force her to marry in a way that a certain expenditure is necessarily incurred. Therefore, till the marriage is settled and is about to be celebrated it is not certain that a certain amount has to be spent. This obligation of the parents is incapable of enforcement or of being discharged by the parents before the marriage actually takes place. This is particularly so if the child is a minor.
6. In the present case the transaction by which the amount was transferred to the minor daughter was conceived by the assessee herself as a gift and that is why she filed a gift-tax return. It was later that she retracted because "it was advised that the gift made to the daughter for her marriage cannot be termed as gift under the Gift-tax Act". This was so stated in the statement of facts before the AAC. This clearly means that the daughter was conferred with the absolute and unfettered ownership over the money.
7. It was contended that the transfer of money was a provision for the marriage expenses of the daughter. That may be the intention of the assessee but we have already mentioned that the marriage was nowhere in contemplation at the time of the transfer of the money. We have already mentioned that there is no obligation under the law on a parent to make a provision so much in advance and if the money is transferred to the daughter with-out any pre-condition the same would be a gift and nothing else. We would again emphasise that the law does not provide or even contemplate of making provision for the maintenance of a child by setting apart money for that purpose. The reason, in our opinion, is that merely setting apart money for that purpose does not discharge that obligation. We specifically questioned Shri Vaish as to whether by the transfer of this amount of money to the daughter, the legal obligation of the assessee to meet the expenses of her marriage stood discharged and Shri Vaish was fair enough to concede that it was not.
We may illustrate the point by an example. Suppose this money had been stolen or had somehow been lost could the parents of the girl refuse to provide her maintenance for the purpose of her marriage by saying that having given her Rs. 1 lakh 271/2 months earlier they were under no obligation to meet the expenses of her marriage. The daughter Miss Archana Modi was a minor when this money was transferred to her. She was born on 29-3-1967. In the case before us it is not the assessee's case that there was any contract between the donor and the donee that the transfer of this amount would absolve the mother from her legal obligation regarding maintenance even if there had been any such agreement that would have been void because the girl was not competent to contract.
8. In Basant Kumar Aditya Vikram Birla's case (supra), it was held that the legitimate marriage expenses of the daughter will have to be met out of the funds of the joint family and the amount was so spent cannot be described as a transfer or gift in terms of Section 2(12) of the Gift-tax Act. In that case jewellery, cash and fridge all worth Rs. 67,744 were given in the marriage of the daughter of the assessee's karta and it was held that this was an expenditure and not a gift. It was observed that a Hindu undivided family is bound to meet the expenses on the marriage of the daughters of the family. There can be no dispute with the principle laid down in this case and we have ourselves conceded that the parents are under a legal obligation to meet the expenses of the marriage of an unmarried daughter. There is nothing in this ruling that may be brought in aid of the present assessee who has not actually incurred any expenditure on the marriage of a daughter but purports to have provided the daughter money long before her marriage so that when the marriage takes place she may meet those expenses herself.
9. In M. Radhakrishna Gade Rao's case (supra), there was a, family partition in which certain land was allotted to the assessee. Out of this land falling to the assessee's share he settled a, certain portion in favour of his eldest daughter for making an appropriate provision for the marriage of the daughter in accordance with the custom and usage prevalent in the family. It was held that there was no gift. The facts of this case are also thus at variance with the case before us.
The judgment shows that the girl had come of age, i.e., she was not a minor and the settlement was accepted by her. This means that there was a contract between two parties competent to contract and in discharge of his obligation to meet the expenses of the daughter's marriage, the father made the above settlement and the legal obligation thus stood discharged. We have already mentioned that in the case before us the transferee Miss Archana Modi was a minor and there was no discharge of the assessee from her legal obligation. The obligation continued as before.
10. In Dr. (Mrs.) Neelambal Ramqswamy's case (supra), the question was whether a gift could be said to be "on the occasion of marriage". In that case a gift was made nearly 11 months after the marriage. It was held that the expression "on the occasion of the marriage" in Section 5(1)(vii) of the GT Act could not be given any restrictive meaning and if the gift was associated with the event of marriage or if the reason for the gift or the immediate cause thereof was the marriage, it would be covered by the said expression. It was also held that the gift in question could not be made earlier due to valid reasons. Relying on this ruling the learned counsel for the assessee contended that in the present case the amount was transferred when the girl was already 16 years of age and the marriage took place 271/2 months later and, therefore, it can be said that the transfer was related to the marriage. This contention, in our view, is not legally sustainable. The ratio laid down by Hon'ble the Madras High Court relates to the interpretation of Section 5(1)(vii) and Shri Vaish specifically stated before us that the assessee does not want to bring her case under that section. Therefore, we do not see how this ruling can help the assessee.
11. The question is whether by the transfer of Rs. 1 lakh the assessee can be said to have incurred any expenditure on the marriage of her daughter which was her legal obligation. We have stated above that there is distinction between incurring an expenditure and providing another with money to enable him to incur that expenditure for herself.
The marriage is not shown to have been even under contemplation when this money was transferred and there was no expenditure imminent to be incurred. As a matter of fact the money was deposited by the daughter in a fixed deposit with Modi Rubber Ltd. for a period of three years.
It is stated in the written submissions before the AAC (see page 3 of the paper book) that the fixed deposit was encashed prematurely at the time of the marriage.
12. For the above reasons we hold that the transfer of Rs. 1 lakh by the assessee to her daughter was neither an expenditure in connection with the marriage of the daughter nor was it a payment to the daughter in consideration of the discharge of the legal obligation of the mother. We, therefore, hold that it was a gift by the assessee to the daughter and was assessable as such under the Gift-tax Act.
13. As already stated, it was contended by the learned Departmental Representative that the daughter had herself sufficient resources and was, therefore, not dependent on the mother and, therefore, she was not entitled to maintenance in terms of Section 20(3) of the Hindu Adoptions and Maintenance Act. For this he referred to the statement of wealth of Miss Archana Modi as on 31-3-1983, i.e., prior to the gift in question. A copy of the statement of wealth is placed at page 8 of the paper book which shows that she had shares worth Rs. 2,74,758, deposits worth Rs, 42,059, cash at bank Rs. 9,837 and liabilities amounting to Rs. 32,075. This means that her financial net wealth was of more than Rs. 3 lakhs and the details of her income for asst. year 1983-84, a copy of which is at page 7 of the paper book shows that she had an income of Rs. 15,626 for that year. On this data the learned Departmental Representative based the aforesaid submissions. In our view, this contention is of little relevance in the case before us. The reason is that the obligation of a parent is not only legal but is moral as well. Even if the child is rich in its own rights that does not mean that the expenditure which the parent incurs on his education or marriage would not remain an expenditure and would be gift. The affluence of the child would assume importance where the parent does not want to spend anything or adequately and the child goes to a Court of law to enforce his supposed right of maintenance. In such a case the affluence of the child may be a complete defence but otherwise it has no importance whatsoever.
14. In view of the above discussion we uphold the orders of the authorities below. The appeal is accordingly dismissed.