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PETITIONER: SHAKUNTLA ETC. ETC.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT16/02/1979

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. DESAI, D.A.

CITATION:  1979 AIR  843            1979 SCR  (3) 232  1979 SCC  (3) 226

ACT:      PEPSU Tenancy  and Agricultural  Lands Act, 1955, S. 32 FF, whether applicable to gift of land by non-related donor.

HEADNOTE:      The  appellants   were  persons   to  whom   gifts   of agricultural lands  were made before July 30, 1958, for love and  affection,   by   non-related   donors.   The   Revenue authorities decided  that these  gifts were not protected by s. 32FF  of the  PEPSU Tenancy  and Agricultural  Lands Act, 1955, as  there had been no valuable "consideration", within the meaning of that section. A Division Bench of the Haryana High Court  upheld the  dismissal of  the  appellants’  writ petition, by a single Judge of that court.      Dismissing the appeals the Court, ^      HELD :  It is  the essence  of a gift as defined in the Transfer  of   Property  Act,  that  it  should  be  without "consideration" of  the nature  defined in  s. 2(d)  of  the Contract Act,  and as section 32FF of the Act saves only the transfer or disposition of land for "consideration" upto the limit specified  in it,  the gifts  under dispute,  will not fall within  the purview  of that section. Any other view of the section  would defeat the purpose of Chapter IV-A of the Act, which  provides for ceiling on land and acquisition and disposal of surplus area. [234 E, G, H-235 A]      James  Newton   v.  Robert   Hargreaves,  135  ER  905; distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No. 1829- 1831 of 1969.      Appeals by  Special Leave  from the  Judgment and Order dated 14-1-69 of the Punjab and Haryana High Court in L.P.A. Nos. 256-258 of 1966.      Y. C. Mahajan and Mrs. Urmila Kapur for the Appellant.      B. Dutta and R. N. Sachthey for the Respondent.      The Judgment of the Court was delivered by      SHINGHAL, J.-The  appellants in these three appeals are aggrieved against  a  common  judgment  of  the  Punjab  and

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Haryana High  Court dated  January 14,  1969, by  which  the judgment of  a learned Single Judge of that Court dismissing their writ petitions was upheld on the ground that the gifts to them did not fall within the purview of the saving clause of section  32FF of the PEPSU Tenancy and Agricultural Lands Act, 1955, hereinafter referred to as the Act. 233      It is  not in  dispute that  a gift was made in each of these cases  before July  30, 1958,  and in  one case  after August 21,  1956 but  before July  30, 1958. The donees were not persons  who were  not related  to the  donors, and were persons to  whom gifts  were made  of agricultural lands for love and  affection. The  revenue authorities  took the view that the  gifts were  not transfers  of lands  of the nature protected by  section 32FF  of  the  Act  as  there  was  no valuable consideration,  and mere love and affection was not "consideration" within  the meaning  of that section. As the High  Court  has  upheld  that  view,  the  appellants  feel aggrieved and  have come  up in  appeal  to  this  Court  by special leave.      Section 32FF  of  the  Act  which  deals  with  certain transfers which  are not  to affect  the surplus  area of  a landowner provides as follows,-           "32FF. Save  in the  case of  land acquired by the      State Government  under any  law for  the time being in      force or  by an heir by inheritance or up to 30th July,      1958 by  a landless  person, or  a small landowner, not      being a relation as prescribed of the person making the      transfer or  disposition of  land, for consideration up      to an area which with or without the area owned or held      by him does not in the aggregate exceed the permissible      limit no transfer or other disposition of land effected      after 21st  August, 1956, shall affect the right of the      State Government  under this Act to the surplus area to      which it  would be  entitled but  for such  transfer or      disposition :           Provided that  any person  who  has  received  any      advantage under  such transfer  or disposition  of land      shall be  bound to  restore it, or to make compensation      for it, to the person from whom he received it." The section  therefore provides  that no  transfer or  other disposition of  land effected  after August  21, 1956, shall affect the  rights of  the State Government under the Act to the surplus  area to which it would be entitled but for such transfer or  disposition "save" in the case of land acquired by the  State Government under any law for the time being in force, or  by an  heir by inheritance or up to July 30, 1958 by a  landless person,  or  small  landowner,  not  being  a relation as  prescribed of the person making the transfer or disposition   of    land,   provided    that   it   is   for "consideration", up  to an  area which  with or  without the area owned  or held  by him does not in the aggregate exceed the permissible  limit. The only point in controversy before us is whether the gifts of land which were made in the three cases 234 under appeal on account of natural love and affection, could be said  to be transfers of the lands for consideration ? It has been  argued  on  behalf  of  the  appellants  that  the aforesaid gifts  were in  the nature of transfer of property as defined  in section 5 of the Transfer of Property Act and it did  not matter  if they  were by way of gift and did not amount to sale or exchange.      Section 5  of the  Transfer  of  Property  Act  defines "transfer of  property" to  mean an  act by  which a  living

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person conveys  property, in  present or  in  future,  inter alia, to  one or  more other living persons Such transfer of property may  be made  by one  of the several modes known to law e.g.  by sale,  exchange or gift etc. It is not the case of the  appellants that  the transfers  under  consideration were by  way of  sale or  exchange or  that they  were  made otherwise than by way of gift to them.      Section 122  of the  Transfer of  Property Act  defines "gift" as follows,-           "122. "Gift"  is the  transfer of certain existing      moveable or  immoveable property  made voluntarily  and      without consideration, by one person, called the donor,      to another  called the  donee, and  accepted by  or  on      behalf of the donee." It is  therefore one of the essential requirements of a gift that it should be made by the donor "without consideration". The  word  "consideration"  has  not  been  defined  in  the Transfer of  Property Act,  but we have no doubt that it has been used  in that  Act in  the same  sense as in the Indian Contract Act  and excludes natural love and affection. If it were to  be otherwise,  a transfer  would really amount to a sale within  the meaning  of section  54 of  the Transfer of Property Act,  or to  an  exchange  within  the  meaning  of section 118  for each  party will  have the  rights  and  be subject to  the liabilities  of a seller as to what he gives and have  the rights  and be subject to the liabilities of a buyer as  to that which he takes. It is not necessary for us to examine  the other  modes of  transfer, for  they have no bearing on the nature of the controversy before us. It would thus appear  that it  is of the essence of a gift as defined in the  Transfer of  Property Act  that it should be without "consideration" of  the nature  defined in  section 2 (d) of the Contract Act,      Now what  section 32FF  of the Act saves is transfer or disposition of  land for  "consideration" up  to  the  limit specified  in   it,  and   as  a   gift  is  always  without consideration, the  gifts which  are the  subject matter  of controversy before us will not fall within the pur- 235 view of  that section,  and have rightly been excluded while calculating the  surplus area  in the three cases before us. Any other  view of  the section  would defeat the purpose of Chapter IV-A  of the  Act which provides for ceiling on land and acquisition and disposal of surplus area.      Mr. Mahajan  for the  appellants tried  to  argue  that "good  consideration"   has  been  defined  in  Black’s  Law Dictionary (fourth  edition) to  mean "such as is founded on natural  duty   and  affection",   and   would   amount   to consideration within the meaning of section 32FF of the Act. But  even  there  it  has  been  clarified  that  "good"  is generally used  "in antithesis  to valuable  consideration", which has  necessarily to  be excluded in the case of a gift by virtue  of its  definition in section 122 of the Transfer of Property  Act. The  argument of  learned counsel  becomes untenable on  a reference  to 17  C.J.S. Contract  91-92  on which he has placed considerable reliance. We have also gone through James  Newton v. Robert Hargreaves,(1) but it cannot avail the  appellants for  there the  conveyance was  by the father to  his two sons in consideration of natural love and affection and  the law  acknowledged that  to  be  a  "good" consideration, which is not so in the cases before us.      There is  thus no  force in  these appeals and they are dismissed with costs. M.R.                                      Appeals dismissed. 236

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