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PETITIONER: DWARAMPUDI NAGARATNAMBA

       Vs.

RESPONDENT: KUNUKU RAMAYYA & ANR.

DATE OF JUDGMENT: 19/07/1967

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SHELAT, J.M. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR  253            1968 SCR  (1)  43

ACT: Hindu Law--Transfer to concubine--For services--whether con- sideration--Indian  Contract  Act,  1872  (9  of  1872),  s. 2(d)--Transfer of Property Act, 1882 (4 of 1882), s. 6(h).

HEADNOTE: V  the  karta of a joint Hindu family, transferred  in  1946 certain  properties, of the joint family to  the  appellant, who  was  his  concubines  since  1945.   The  joint  family disrupted in 1947, and after V’s death, the  respondents-his widow  and  sons,  filed a suit against  the  appellant  for recovery  of possession of the properties alleging that  the documents were executed without consideration or for immoral purposes. and were void.  The appellant instituted suits for partition  of the joint family properties and for  allotment to  her  the properties conveyed by the  deeds.   The  trial court  dismissed  the  respondents’  suit  and  decreed  the appellant’s  suit, which the High Court reversed. In  appeal to  this  Court, the appellant contended that V.  agreed  to make  the transfers in consideration of  past  cohabitation, having  regard to s. 2(d) of the Indian Contract  Act,  1872 her  past  service was a valuable consideration  and  V  was competent  to alienate for value his undivided  interest  in the coparcenary properties.  The respondents contended  that the transfers were by way of gifts and not in  consideration of the past cohabitation, and V was not competent to make  a gift  of the coparcenary properties and even  assuming  that the   transfers   were  made  in   consideration   of   past cohabitation,  they were hit by s. 6 (h) of the Transfer  of Property Act, 1882. HELD:     Under the Madras School of Mitakshara law by which V  was governed. he had no power to make a gift of even  his undivided  interest  in the coparcenary  properties  to  his concubine. [46C] V and the appellant were parties to an illicit  intercourse. The  two agreed to cohabit.  Pursuant to the agreement  each rendered services to the other.  Her services were given  in exchange  for his promise under which she obtained)  similar services.  In view 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

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services  could not be treated under s. 2(d) of  the  Indian Contract   Act  as  a  subsisting  consideration   for   the properties to her.  The past cohabitation was the motive and not  the consideration for the transfers which were  without consideration and were by way of gifts.  The gifts were  not hit by s. 6(h) of the Transfer of property Act, by reason of the fact that they were motivated by a desire to  compensate the concubine for her past services. [45E-G] The  invalid gifts were not validated by the  disruption  of the joint family in 1947.  After the disruption of the joint family, V 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. [46D] Balo  v.  Parbati, I.L.R. [1940] All. 370  and  Istalk  Kamu Musalman  v. Ranchhod Zipru Bhate, I.L.R. [1947]  Bom.  206, 217 referred to. 44

JUDGMENT: CIVIL  APPELLATE  JURISDICTION:  Civil  Appeals  Nos.  83-85 of .1965. Appeals by special leave from the judgment and decree  dated February  9, 1962 of the Andhra Pradesh: High Court  in  Tr. Appeal  No.  558 of 1957 and A. S. Nos. 89 and 157  of  1957 respectively. P.   Ram Reddy, A. V. V. Nair, B. Parthasarathy, and 0. C. Mathur,   for the appellant (in all the appeals). C.   R. Pattabhiraman and R. Ganapathy Iyer, for the respon- dents (in C.As. Nos. 83 and 84 of 1965) and respondents Nos. 15 (in C.A. No. 85 of 1965). The Judgment of the Court was delivered by Bachawat,  J.--One Venkatacharyulu was the Karta of a  joint family  consisting  of  himself  and  his  four  sons.   The appellant  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 properties belonging to the  joint family.  In 1947 after the execution 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  properties alleging that the documents dated April  15, 1946,  were  executed without consideration or  for  immoral purposes,  and were void.  The appellant instituted  against his  widow and sons O.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- missed  O.S.  No.  12 of 1954 and O.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 confirmed the decree in O.S. No. 62/54,  allowed the two other appeals, dismissed O.S. No. 63/54 and  decreed O.S. No. 12/54, the decree for possession in respect of  the properties covered by Ex.  A-1 being conditional on  payment by the respondents of the value of improvements 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-1  and

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Ex.  A-2 were not supported by any consideration by  way  of cash or delivery of jewels.  This finding is not  challenged before us.  The High Court held that the transfers were made by  Venkatacharyulu  in favour of the appellant in  view  of past illicit cohabitation 45 with her, such past cohabitation was the motive and not  the consideration  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. In  this  Court,  it  is common  case  that  future  illicit cohabitation was not the object or the consideration for the transfers  under  Ex.  A-1  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 was competent  to alienate for value his undivided  interest  in the  coparcenary properties.  The respondents  contend  that the transfers were by way of gifts and not in  consideration of  the  past  cohabitation,  and  Venkatacbaryulu  was  not competent to make a gift of the coparcenary properties.   In the alternative, the respondents contend that assuming  that the   transfers   were  made  in   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 agreement each rendered services to the other.  Her services were  given  in  exchange for his promise  under  which  she obtained  similar  services.  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 consideration  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 without 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 concubine  for her past services. In Balo v. Parbati(1) the Court held that the assignment  of mortgagee’s  rights  to  a woman in  consideration  of  past cohabitation  was  not hit by sec. 6(h) of the  Transfer  of Property  Act and, was valid.  Properly speaking,  the  past cohabitation  was the motive and not the  consideration  for the assignment.  The assignment was without consideration by way of gift and as such was not bit by s. 6(h). (1)  I.L.R. [1940] All. 370. 46 In Istak Kamu Musalman v. Ranchhod Zipru Bhate(1) the  court rightly  held that past cohabitation was the 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  readily  assumed   that   past cohabitation  was  the  consideration  for  the   subsequent promises.

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Venkatacharyulu was free to make a gift of his own  property to his concubine.  The gifts,, under Exs.  Al ’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  Madras   school   of Mitakshara law by which Venkatacharyulu was governed, he had no  power to make a gift of even his undivided  interest  in the coparcenary properties to his concubine.  The gifts were therefore invalid. The  invalid gifts were not validated by the  disruption  of the joint family in 1947.  After the disruption of the joint family,  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-1 and A-2 were and are invalid.  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. (1) I.L.R. [1947] Bom. 206, 217. 47