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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.

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 [1972] 86 ITR 96. The gifts in question were of a large area ofjland 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 assessee's 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.

"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 wasjnot his own. Therefore, the gift was void ab initio."

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 [1970] 76 ITR 43. 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.