Dwarampudi Nagaratnamba v. Kunuku Ramayya & Anr.

llacllawat, J.-One Venkatacharyulu was the Karla of a joint family consisting of himself and his four sons. The appellaill was his concubine since 1945 until his death on February 22. 1949. By two registered deeds purporting to be sale deeds dated April 15, 1946, (Exbts. A-1 and A·2), he transferred to the appellant certain D properties belonging to the joint family. In 1947 after the execu· tion of Ex. A-1 and A·2 there was a disruption of the joint family and a severance of the joint status between Venkatacharyulu and his sons. In 1954 his widow and sons instituted O.S, No. 12 of 1954 against the appellant for recovery of possession of the pro­ perties alleging that the documents dated April 15, 1946, were E executed without consideration or for immoral purposes, and were void. The appellant instituted against his widow and sons 0.S. No. 63 of ,1954, asking for general partition of the joint family properties and for allotment to her of the properties conveyed by the two deeds. She also instituted O.S. No. 62 of 1954 against one of his sons and another person asking for damages ·and mesne profits for wrongful trespass on the properties. The trial court dis- r missed O.S. No. 12 of 1954 and 0.S. No. 62 of 1954 and decreed O.S. No. 63 of 1954. From these decrees appeals were preferred in the High Court of Andhra Pradesh. The High Court confirm· ed the decree in O.S. No. 62/54, allowed the two other appeals. dismissed O.S. No. 63154 and decreed 0.S. No. 12 / 54, the decree for possession in respect of the properties c;overed by Ex. A·I O being condition<1l on payment by the respondents of the value of improvemen.ts made by the appellant to the properties. From the decrees passed by the High Court. the present appeals have been filed.by special leave. The High Court found that the transfers under Ex. A-I and Ex. A-2 were not supported by any consideration by way of cash H or delivery of jewels. This finding is not challenged before us. The High Court held that the transfers were made by Venkatach· aryulu in favour of the appellant in view of past illicit cohabitation NAGARATNAMBA V, RA'llAYYA (Bac11awal, J.) 45 A with her, such past cohabitation was the motive and not the con­ sideration for the transfers and the two deeds though ostensibly sale deeds. were in reality gift deeds. It held that Venkatacharyulu had no power to make a gift of the joint family properties. the two deeds were invalid and the subsequent severance of joint status in 1947 could not validate them. B In this, Court. it is common case that future illicit cohabita­ tion was not the object or the consideration for the transfers under Ex. A-I and Ex, A-2. The appellant contends that Venkatacharyulu agreed to make the transfers in consideration of past cohabitation, having regard to section 2(d) of the Indian Contract Act. 1872, her past service was a valuable consideration and Venkatacharyulu C was competent to alienate for value his undivided interest in the coparcenary properties. The respondents contend that the trans­ fers were by way of gifts and not in consideration of the past cohabitation, and Venkatacharyulu was not competent to make a gift of the coparcenary properties. ln the alternative, the res­ pondents contend that assuming that the transfers were made in D consideration of past cohabitation, they were hit by Sec. 6(h) of the Transfer of Property Act, 1882. Our findings are as follows : - Venkatacharyulu and the appellant were parties to an illicit intercourse. The two agreed to cohabit Pursuant to the agree- E ment each rendered services to the other. Her services were given in exchange for his promise under which she obtained similar ser­ vices. In lieu of her services, he promised to give his services only and·not his properties. Having once operated as the consideration for his earlier promise, her past services could not be treated under section 2(d) of the Indian Contract Act as a subsisting considera- p tion for his subsequent promise to transfer the properties to her. The past cohabitation was the motive and not the consideration for the transfers under Ex. A-1 and A-2. The transfers were with­ out consideration and were by way of gifts. The gifts were not hit by sec. 6(h) of the Transfer of Property Act, by reason of the fact that they were motivated by a desire to compensate the con- G cubine for her past services. In Balo v. Parbati(') the Court held that the assignment of mortgagee's rights to a woman in consideration of past cohabita­ tion was not hit by sec. 6(h) of the Transfer of Property Act and was valid. Properly speaking. the past cohabitation was the motive B and not the consideration for the assignment. The assignment was without consideration by way of gift and as such was not hit by s. 6(h). (') J.T,.ll. [IIJ.IO] All. 370. SUPIQJO COURT U!OBTS [1968] l a.o.L In lstak Kamu Musalman v. Ranchhod • Zipru Bhate(') tho .A court rightly held that past cohabitation was tho motive for the gift under Exhibit 186, and the gift was valid but in holding that the. promises to make the gifts under other exhibits were made in consideration of past illicit cohabitation and consequently those gifts were invalid, the Court seems to have too readil)! assumed that past cohabitation was the consideration for the subsequent B promises. Venkatacharyulu was free to make a gift of his own property to his concubine. The gifts; under Exs. A-I and A-2 were not hit by s. 6(h) of the Transfer of Property Act. But the properties gifted under Ex. A-1 and A-2 were coparcenary properties. Under the C Madras school of Mitakshara law by which Venkatacharyulu was governed, he .had no power to make a gift of even his undivided interest in thp coparcenary properties to his concubine. The gifts were therefore invalid. The invalid gifts were not validated by the disruption of the joint family in 194 7. After the disruption of the joint family. D Venkatacharyulu was free to make a gift of his divided interest in the coparcenary properties to the appellant, but he did not make any such gift. The transfers under Exs. A-I and A-2 were and are i11valid. We find no ground for interfering with the decrees passed by the High Court. In the result, the appeals are dismissed. There will be one set · of costs and one hearing fee. Y.P. Appeals dismissed. (') I.L.R. [19-17] Bom. 206, 217.