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Judgment
Vithayathil, J.—Plaintiff is the Appellant in this second appeal. The plaint schedule items of which item No. 2 is a building in item No. 1 property belonged to deceased Krishna Panicker Krishna Panicker got them in family partition. Exhibit C dated 16-7-1103 is the partition deed. Krishna Panicker married the Plaintiff in 1105. Exhibit A is the copy of the marriage register. On 22-6-1108 Krishna Panicker executed a gift deed in favour of the Plaintiff in respect of the plaint property and building. Exhibit B is the gift deed. Under the gift deed Krishna Panicker was entitled to be in possession of the property and building till his death. Krishna Panicker died on 23-2-1119. On 14-2-1119 he executed a gilt deed Ex. III or Ex. O, in respect of the property in favour of the first Defendant. It is also alleged that Ex- III was brought into existence fraudulently and collusively and that Krishna Panicker was not competent to execute the same. Defendants 2 and 3 are holding the property under the 1st Defendant. Plaintiff prayed for recovery of possession of the property with mesne profits at the rate of Rs. 30/- per year.
First Defendant alone contested the suit. She contended that Plaintiff was not the legally wedded wife of Krishna Panicker, that she had already been married to Anr. person, that the consideration for the gift in favour of the Plaintiff was illegal, that the gift was invalid, that it did not take effect, that the gift Ex. III in her favour was valid, that she was in possession of the property as per the gift and that the Plaintiff was not entitled to recover possession from her.
The trial Court held that the Plaintiff was not the legally wedded wife of Krishna Panicker, that the consideration for Ex. B was immoral, that the gift did not take effect, that it was conditional on the Plaintiff being subservient to Krishna Panicker, that Krishna Panicker was competent to revoke it, that the gift, Ex. III in favour of the first Defendant was valid and that the Plaintiff was not entitled to recover possession of the property from the first Defendant. The Plaintiff had discharged a debt of Krishna Panicker according to the direction in Ex. B. She was given a charge on the plaint schedule property in respect of this amount. The suit was dismissed in other respects. The appeal filed by the Plaintiff from this decree was also dismissed with costs.
The questions that arise for consideration in this second appeal are the following; namely, (1) whether the gift Ex. B in favour of the Plaintiff took effect; (2) whether the gift is void u/s 6(h), T.P. Act on the ground that the object of the gift was immoral and (3) whether the gift could be revoked by the donor.
The answer to the first question depends upon the fact whether the gift was accepted by the Plaintiff. u/s 122, T.P. Act a gift is complete when the transfer of property is accepted by or on behalf of the donee. There is ample evidence in the case to show that the Plaintiff accepted the gift. The gift deed, Ex. B, was produced in court by the Plaintiff. The lower appellate Court has relied on the fact that it not produced along with the plaint. It was filed in Court on 24-7-1119 along with the other documents produced on behalf of the Plaintiff. It was stated in the plaint that the original gift deed had been produced in the Taluk Office along with a security bond, that it was not got back at the time of the filing of the suit, and that therefore only an attested copy was being filed along the plaint.
It was contended on behalf of the first Defendant that the gift deed, Ext. B was in the possession of Krishna Panicker, that it was stolen from him by the Plaintiff and that Krishna Panicker filed a criminal complaint against the Plaintiff in respect of the theft. That complaint was, however, dismissed. The fact that Krishna Panicker filed a criminal complaint does not prove that the gift deed was in his possession and that it was stolen by the Plaintiff. Krishna Panicker and the Plaintiff together executed a security bond, Ext. J, on 21-8-1109 for an agricultural loan hypothecating the plaint property and Anr. property that belonged to the Plaintiff. Exhibit B being a title deed relating to the property must have been handed over along with the security bond. The last instalment of the agricultural loan was paid only on 26-2-1119 as can be seen from the receipt Ext. K. It is likely that the security bond and the title deeds were got back by the Plaintiff only after the suit was filed. If it was a case of stealing of the document by the Plaintiff there was nothing to prevent her from filing it in Court along with the plaint. No argument can, therefore, be built on the fact that the document was not produced in Court along with the plaint.
It is admitted that Krishna Panicker and the Plaintiff fill out some time after the execution of the gift deed. It may be that the criminal complaint was filed by Krishna Panicker in order to make it appear that the gift deed was not handed over to the Plaintiff by him and that the gift had not taken effect. The question whether the gift was accepted by the Plaintiff will have to be decided upon the evidence and circumstances of the case. One such circumstance is the fact that the original gift deed was produced in Court by the Plaintiff.
In the gift deed Ext. B Krishna Panicker had directed the Plaintiff to discharge a debt due from him under a hypothecation bond executed by him in respect of the plaint property on 9-11-1105. Exhibit G is that hypothecation bond. Plaintiff paid that amount under the receipt Ex. L.D.W. 1, a brother of the hypothecatee proves the payment of the amount by the Plaintiff. The fact that Plaintiff paid this debt was admitted by Krishna Panicker in Ext. III itself and the first Defendant was directed to pay this amount to the Plaintiff. This proves conclusively that Plaintiff accepted the gift and acted on it. Exhibits C, D, E, F and H are other title deeds relating to the plaint property. They also were produced in Court by the Plaintiff. Exhibits G and H are hypothecation bonds executed by Krishna Panicker. Plaintiff put forward the case that the debts under these bonds were also discharged by her. But these debts were discharged before the date of Ext. B. Therefore, the Plaintiff''s case that she discharged these debts cannot be true. This does not however affect the question whether the Plaintiff accepted the gift.
Exhibit J is, as already stated, a security bond executed by the Plaintiff and Krishna Panicker in respect of an agricultural loan. The plaint property and Anr. property that belonged to the Plaintiff were hypothecated under the document. It is true that nothing is said in Ext. J about Ext. B. But that does not go to show that Ext. B was not acted upon. It is not stated in Ext. J that the plaint property belonged to Krishna Panicker. According to the provision in Ext. B both Krishna Panicker and the Plaintiff had to join in the execution of any document relating in the property during the lifetime of both of them. Again, Krishna Panicker had reserved to himself a life estate in the property. It was therefore, necessary that Krishna Panicker also should join in the execution of the document. The loan obtained under Ext. J was discharged by the Plaintiff herself. Exhibits K2 and K3 show that the Plaintiff paid the first instalment of the loan on 6-12-1110. Exhibits K and K(1) show that the Plaintiff paid the last instalment on 26-2-1119. The receipts for the payment of the intermediate instalments were not produced by the Plaintiff in the trial Court and for this reason the lower appellate Court held that those instalments must have been paid by Krishna Panicker himself. The Plaintiff has filed those receipts in this Court. They are all chalan receipts issued from the treasury in favour of the Plaintiff. It is clear from these receipts that the loan under Ext. J was fully paid by the Plaintiff herself.
The Plaintiff also filed in the trial Court receipts relating to the payment of tax for the property. Exhibit M(1) shows that Plaintiff paid the tax in 1109. Exhibits M2, M3, M4, M5, M6, M7, M8 and M9 show that she paid the tax for the years 1118 and 1119. The Plaintiff did not produce in the trial Court the receipts relating to the payment of tax between the years 1109 and 1118. Those receipts also were produced in this Court. There can be no doubt that Plaintiff was paying the tax for the property from 1109 onwards. It is true that Ext. M receipt relating to the payment of 20 chuckrams as tax on 10-8-1108 is in the name of Krishna Panicker. But that may relate to the tax payable for a period prior to the date of Ext. B. Exhibit B is dated 22-6-1108. It cannot, therefore, be argued on the basis of Ext. M that the gift deed Ext. B was not accepted by the Plaintiff. Exhibit M itself was in the possession of the Plaintiff and was produced by her in Court. In any case the fact that the Plaintiff paid the tax for the property from 1109 onwards is sufficient to show that she accepted the gift. In the light of the overwhelming documentary evidence in the case which goes to show that the Plaintiff accepted the gift and acted on it I am constrained to disagree with the Courts below in their view that Ext. B did not take effect.
The only reason given by the learned Munsiff for holding that the gift did not take effect is that the original gift deed must not have been handed over to the Plaintiff and that she did not get actual possession of the property. So long as the original deed is produced in Court by the Plaintiff herself it has to be presumed that it was handed over to her by Krishna Panicker. So far as possession of the property is concerned Krishna Panicker was entitled to be in possession of it till his death as per the terms of Ext. B and Plaintiff could get exclusive possession only after Krishna Panicker''s death. The learned Munsiff has failed to consider the evidentiary value of the various documents produced in the case which go to show that the Plaintiff accepted the gift deed and acted on it. According to the learned District Judge, the documents referred to above do not show that the gift took effect. It is difficult to accept this finding of the learned Judge. The documents clearly show that the Plaintiff accepted the gift and acted on it. Krishna Panicker himself did not say in Ext. III that Ext. B was not accepted by the Plaintiff. The reason given in Ext. III for revoking Ext. B is that Plaintiff deserted Krishna Panicker and that he was finding it difficult to maintain himself. The first point has therefore to be found in favour of the Appellant.
The second question for consideration is whether the gift deed Ex. B is void u/s 6(h), T.P. Act. Section 6(h) reads thus:
No transfer can be made
(1) in so far as it is opposed to the nature of the interest affected thereby, or
(2) for an unlawful object or consideration within the meaning of Section 23, Contract Act, 1872, or
(3) to a person legally disqualified to be transferee.
It was argued on behalf of the first Defendant that the transfer under Ex. B was for an unlawful object and consideration. The argument is based on the contention that Plaintiff was not the legally wedded wife of Krishna Panicker and that the object or consideration for the gift was illicit cohabitation with the Plaintiff. Both the Courts below upheld this contention. I do not think that I can agree with them on this point also. Exhibit B being a gift no question of consideration arises in the case. Gift is a transfer without consideration (vide Section 122, T.P. Act). The further question is whether the transfer under Ex. B is for an unlawful object within the meaning of Section 23, Contract Act. That section reads thus:
The consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature, that, if permitted, it will defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of Anr. ; or the Court regards it as immoral or opposed to public policy. In each of those cases the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
The first Defendant''s case is that the object of the gift, Ex. B, was immoral and one opposed to public policy. Reliance was placed on - Istak Kamu Musalman Vs. Ranchod Zipru Bhate and Others, . In that case one Chunilal, a Bania, kept a prostitute girl as his mistress and executed in her favour certain gift deeds. The properties gifted were given into her possession. One of the heirs of Chunilal brought a suit for partition of his share in Chunilal''s properties alleging that the gift deeds executed by Chunilal were void as the consideration for those deeds was past and future illicit cohabitation with the donee. Lokur J. who wrote the judgment in the case cited with approval the following observation of Patkar J. in - Sabava Yellappa Vs. Yamanappa Sabu,
The word ''object'' in Section 23, Contract Act is distinct from ''consideration'' and means something aimed at, and has been held to mean purpose or design... If the object of a transfer of property is immoral, the transfer is void... A deed of gift does not require any consideration. According to Section 122, T.P. Act, a gift is a transfer made voluntarily and without consideration. The question is whether the object is immoral or unlawful within the meaning of Section 23, Contract Act. In the present case I think that the deed of gift was passed with the motive of recompensing Defendant No. 1 for past cohabitation and with the object of maintaining the immoral relation, with Defendant No. 1 in the future. The object, in my opinion, is something which is to be aimed at contemporaneously or in future as being some purpose or design for which a transfer is made. The object means the end of which the effort is directed or the thing aimed at, that which one endeavours to attain or carry out. In the present case there was the immoral object so far as the future cohabitation with Defendant No. 1 was contemplated by Sabu... The past cohabitation may be a motive for the gift, but, in my opinion, cannot be said to be an object which implies something aimed at simultaneously or in the future. Past cohabitation would be consideration for, an agreement u/s 2(d) Contract Act but is not good consideration for a transfer of property. A gift does not require consideration. It is difficult to hold that past cohabitation can be an object of a gift. Future cohabitation can be considered to be an object of the gift.
Barlee J. the other learned Judge who took part in the decision in - ''Sabava v. Yamanappa (B)'' while agreeing with Patkar J. that past cohabitation cannot be the object of a gift held upon an examination of the evidence that the gift in that case was made in pursuance to a previous agreement by the donor with the donee to compensate the latter1 for illicit cohabitation. The learned Judge observed thus:
If there was an agreement it would obviously have been unenforceable; and since Section 23, Contract Act has been; incorporated in the T.P. Act, the conveyance made in the discharge of the agreement was invalid. If, on the other hand, there was no promise which linked the past concubinage with the conveyance, the latter is unimpeachable.
The principles underlying these observations were accepted by Lokur J. in- ''Istak Kamu v. Ranchod Zipru (A)'' and the learned Judge laid down the following propositions in that case: (1) An agreement or transfer of property, whose object or consideration is future illicit cohabitation is void; (2) a gift requires no consideration and past illicit cohabitation can be a motive for a gift but not its object or consideration and does not render the gift void; (3) u/s 2(d), Contract Act past illicit cohabitation can be the consideration for an agreement on a transfer of property other than a gift and such an agreement or transfer is void; and (4) if such a void agreement preceded a gift and the gift is made in discharge of that agreement then the gift also is void.
I do not think that the propositions laid down in - Istak Kamu v. Ranchod Zipru (A) have any bearing on the facts of this case. It is not disputed that the Plaintiff was married to Krishna Panicker. Exhibit A, copy of marriage register, shows that Krishna Panicker married the Plaintiff on 21-8-1105. In Ex. B Krishna Panicker described the Plaintiff as his wife and it was stated that the gift deed was executed in her favour in consideration of his affection for her as his wife. (Enthe bharyagaya neengahil enikullaf ishtavatsalyam pratipalamakki)
In the security bond, Ex. J, executed by Krishna Panicker and the Plaintiff, Krishna Panicker was described as the husband of the Plaintiff.
The first-Defendant relies on the fact that Plaintiff was already married to one Neelakanta Pillai and that that marriage had not been dissolved according to law before she was married to Krishna Panicker. Even assuming that the marriage between Krishna Panicker and the Plaintiff, was not valid according to law it does not necessarily follow that Krishna Panicker regarded the Plaintiff as a concubine and not as his wife. There is nothing to show that Krishna Panicker was aware of the fact that Plaintiff was previously married to Anr. person or that her marriage with that person was subsisting. There is also evidence in the case to show that Plaintiff''s marriage with Neelakanta Pillai which is admitted by the Plaintiff was a valid marriage. Whatever that may be, so long as Krishna Panicker regarded the Plaintiff as his lawfully wedded wife it cannot be said that his object in executing the gift deed, Ex. B in her favour was illegal cohabitation with her. In the circumstances, the object of the gift cannot be held to be immoral or one opposed to public policy and consequently unlawful within the meaning of Section 6(h), T.P. Act.
Krishna Panicker was evidently treating the Plaintiff as his lawfully wedded wife. Even in Ex. III the gift deed executed by him in favour of the first Defendant it is not stated that the Plaintiff was not his wife. The reason given by him for revoking the gift in favour of the Plaintiff was that the latter was not taking care of him. In the case of a gift the only relevant factor to be taken into consideration in deciding the question whether the transfer would come u/s 6(h), T.P. Act is the object of the donor in making the gift. Therefore, even if the marriage between the Plaintiff and Krishna Panicker was not valid according to law Krishna Panicker''s object in making the gift in favour of the Plaintiff cannot be said to be unlawful so long as he regarded the Plaintiff as his lawfully wedded wife.
In - AIR 1932 34 (Privy Council) , the Defendant who was a Brahmin married the Plaintiff, an Australian lady, who had already been married to an American. The Plaintiff obtained a decree of divorce before marrying the Defendant. After the marriage between the Plaintiff and the Defendant the latter executed two gift deeds in favour of the former. Subsequently the parties fell out and the Plaintiff sued for enforcement of the deeds. The Defendant contended that his marriage with the Plaintiff was not valid according to law and that the Plaintiff was, therefore, not entitled to enforce the deeds of gift. It was argued for the Defendant that one of, the deeds though in form unilateral and purporting to be a grant by him was really in the nature of a contract, between the parties and that u/s 25(1), Contract Act the grant which was expressed to be made out of love and affection would be binding only if the parties were validly married.
Their Lordships of the Privy Council repelled this contention and held that even if the document could be rgarded as contractual, Section 25(1), Contract Act would apply to the case even though the marriage might have been invalid by reason of the fact that the parties were living together as husband and wife for a number of years. Their Lordships also held that the deed was in form and substance a gift for which no consideration was necessary. In the present case the relationship that subsisted between the parties was that of husband and wife. It cannot, therefore, be said that the object of Krishna Panicker in executing we gift deed, Ex. B, in favour of the Plaintiff was immoral or one opposed to public policy. I am, therefore, unable to accept the argument that the transfer effected under Ex. B is void u/s 6(h), T.P. Act.
The next argument advanced on behalf of the first Defendant was that the gift Ex. B was conditional upon the Plaintiff''s submission to the wishes of Krishna Panicker during his lifetime (Enthe agnanuvartiyayi irikkiyum cheythukollenduthum) and that since the Plaintiff deserted him after the execution of the gift deed he was entitled to revoke it. A reading of Ex. B shows that it was an absolute gift and not a conditional one the operative portion of the document is to the effect that the property was given to the Plaintiff unconditionally.
(Enthe bharyayaya neengalilt enikkulla istavatsaylyam pratipalaimai neengalukku avakasa padutti tannirikkindra agunnum).
In the subsequent portion of the document there is a direction to the Plaintiff to continue to be subservient to Krishna Panicker as she used to be.
(Vastu innumuclal neengaludeperil katti karamthirtha pattiyam mudalaya prumanangal pidikkugaiyum thattu dehannangal mudalaiyathu cheidn abhiviruthi paduthugaiyum melum enthe aynya varthiyai irrukkugaiyum cheidukollavendiathum.) This obviously was only a pious wish of the donor and was not a condition that had to be fulfilled before the gift could take effect.
A similar provision in a gift deed came up for consideration before this Court in - ''Gangadhara Iyer v. Kulathu Iyer'' AIR 1952 Trav 47 (D). In that case, as in the present case, it was stated after the operative portion of the deed that the donor reserved to herself the right to appropriate the income from the property during her lifetime and the donee was directed to render services to the donor and also to meet her funeral expenses. It was held that the direction in the gift deed relating to the rendering of services and the meeting of funeral expenses was only a pious wish of the donor and that the gift was not conditioned, upon the fulfilment of the direction. It was observed by Govinda Pillai J. that
when there is an out and out transfer followed'' by a direction to the donees to maintain the donors the latter direction is only a pious wish.
Koshi J. (as he then was) observed thus:
reading the gift as a whole it appears to me that the true intention of the donor was to effect a transfer in ''praesenti'' of the proprietary interest in the property and to vest the same in the donee, with a reservation of the right to enjoy the usufruct during her own lifetime. The whole interest in the property was intended to be vested in the donee immediately and the donor reserved for herself no power of disposal over it. The only right that was reserved to her was to enjoy the profit thereof. There is an immediate gift of the property but the enjoyment, by the donee of its profits was postponed till after the death of the donor. A gift of this character is recognised as valid under the Hindu Law.
The terms of Ex. B are similar to those of the gift deed in the above case. To the same effect, is the decision of the Madras High Court in - Murikipudi Ankamma Vs. Tummalacheruvu Narasayya and Others, I have no doubt that Ex. B was a complete and irrevocable gift in favour of the Plaintiff arid that the direction to the Plaintiff to continue to be subservient to Krishna Panicker was only a pious wish.
If Ex. B was a valid and irrevocable gift Krishna Panicker was obviously incompetent to execute the gift deed Ex. III in favour of the first Defendant. According to the provision in Ex. B the Plaintiff was entitled to get actual possession of the property on the death of Krishna Panicker. The first Defendant''s possession of the property after the death of Krishna Panicker can therefore be regarded only as that of a trespasser. The Plaintiff is entitled to recover possession of the property from her with mesne profits. The Plaintiff has claimed mesne profits at the rate of Rs. 30 a year. The first Defendant has no case that the rate of mesne profits claimed by the Plaintiff is excessive.
In the result, I allow this second appeal and set aside the judgments and decrees of the Courts below. The Plaintiff is allowed to recover possession of the plaint schedule items with mesne profits at the rate of Rs. 30 a year from the date of suit till the date of decree and future mesne profits at that rate from the date of decree to the date of recovery of possession of the property or for three years from this date, whichever event happens earlier. The first Defendant alone will be liable for mesne profits. The Plaintiff will get her costs in all the Courts from the first Defendant who will suffer her own costs.