Pulla Gavarayamma vs Talisetti Suryanarayana and others

S.H. Sheth, J.—The plaintiff filed the present suit for recovery of possession of Survey No. 98/l admeasuring 1 Acre. The plaintiff who is a married woman was the concubine of defendant No. 3. It is her case that she purchased the suit land from defendant No. 3 under a sale deed (Ex. A-1) dated 1st October 1965. Defendants 1 and 2 are the sons of defendant No. 3. The suit land admittedly belonged to defendant No. 3. In defence it was contended by all the defendants including defendant No. 3 that the sale in favour of the plaintiff was invalid because there was no consideration for the transaction and secondly because it was given away by defendant No. 3 to the plaintiff for immoral purposes. It was also contended that the sale transaction was sham and nominal and that it was executed by defendant No. 3 under pressure and coercion from the plaintiff. It was next pleaded that there were negotiations for compromise between the parties and that the plaintiff had agreed to re-convey the suit property to defendant No. 3 for a sum of Rs. 2,500/- under an agreement dated 14th September. 1966. Defendant No. 3 admitted to have developed illicit intimacy with the plaintiff in August 1965.

The learned trial Judge found that the suit land was the self-acquired property of defendant No. 3 and that the sale transaction in favour of the plaintiff was not supported by consideration. He, therefore, held that it was a sham and nominal transaction. Secondly, he held that the agreement to re-convey the property had been proved. In view of the findings which he recorded, he dismissed the suit. The plaintiff appealed to the appellate court. The learned Appellate Judge for slightly different reasons Crime to the same conclusions and dismissed the appeal.

It is that appellate decree which is challenged by the plaintiff in this second appeal. The finding that the sale transaction was not supported by consideration or was sham and nominal is ordinarily a finding of fact with which this court cannot interfere in second appeal. It has been found by the learned appellate Judge that the sale transaction was not supported by cash consideration. Secondly, according to him, it was given over by defendant No. 3 to the plaintiff for immoral purposes. He has further held that in view of the finding that the suit, land was self-acquired property of defendant No. 3 it was open to defendant No. 3 to give away the property to the plaintiff for any purpose whatsoever if he so chose. Admittedly, the transaction by defendant No. 3 in favour of the plaintiff was a transaction of sale. ''Sale'' is defined in S. 54 of the Transfer of Property Act as transfer of ownership in exchange for a price paid or promised or part-paid or part-promised. A sale transaction, therefore, to be valid must be supported by price which is paid or promised fully or in part. It is not the plaintiff''s case that she had promised to pay the cash consideration nor is it her case that it was paid.

Mr. Jagannadha Rao has argued that past cohabitation between the plaintiff and defendant No 3 was good consideration for supporting the validity of the sale transaction. This was not what the plaintiff pleaded. It is necessary to note in this context that the plaintiff is a married woman. Any cohabitation with her would give rise to an adulterous intercourse which is against public policy. Such an adulterous intercourse cannot be a substitute for price paid or promised nor can it be a valid consideration. In support of his contention that past cohabitation is good consideration for supporting the transaction, he has invited my attention to a few decisions.

The first decision to which he has referred is in Man Kuar v. Jasodha Kuar, (1878) ILR 1 All 478. There are two distinguishing facts which render this decision inapplicable to the instant case. The first fact is that the property in that case was settled and not sold. The question, therefore, of paying the price or promising to pay it did not arise. Secondly, the concubine in that case was not the married wife of another person.

The next decision to which my attention has been invited is in Dhiraj Kuar v. Bikramajit Singh, (1881) ILR 3 All 787. It was not a case in which the paramour has sold the property to his concubine. What was done in that case was that Bikramajit Singh, the paramour, had agreed to pay an allowance of Rupees 2/- P. M. to his mistress Dhiraj Kuar for her provision on account of their past cohabitation. The question, therefore, of supporting the sale by cash consideration or otherwise did not arise in that case. Secondly, there is nothing in that decision to show that the concubine Dhiraj Kuar was a married woman.

The third case to which he has referred is in Lakshminarayana Reddyar v. Subhadri Ammal. (1903) 13 Mad L J 7. It was a case of a promissory note executed by Lakshminarayana Reddyar, the paramour, in favour of his mistress Subhadri Ammal. It has been observed in that decision by Bhashyam Aiyangar, J. that a promise made in consideration of past cohabitation is valid under the Indian Contract Act. It was not a case of supporting a sale by consideration other than the price paid or promised. Secondly, it was not a case of an adulterous relationship between the paramour and his mistress.

The next case to which reference has been made is in Mt. Mahtab-un-Nissa Vs. Rafaqat Ullah and Others, . The facts of that case show that a Mohammadan transferred certain properties in lieu of dower to a woman who was his wife but with whom the marriage contracted by him was. Found to be illegal. In that context it was held that the consideration consisting of past cohabitation was not illegal though it might be void. It was not a case of supporting a sale transaction by consideration other than the price paid or promised and consisting of adulterous relationship with a married woman.

8-A. The next decision to which Mr. Jagannadha Rao has referred is in M. Kothandapani Mudaliar Vs. Dhanammal, It has been held in that decision that although future illicit cohabitation cannot support a promise for the reason that it is immoral consideration yet there is nothing wrong in a promise made in consideration of past cohabitation. It has been further held that, therefore, a promissory note executed by the promisor in consideration of past illicit intercourse was valid and enforceable. The case of a promissory note stands on a different footing from the transaction of sale which is sought to be supported by consideration other than cash consideration and consisting of illicit intercourse with a married woman, the vendee, and her paramour, the vendor. None of these cases, therefore, has any application to the facts of the instant case.

It is necessary to note that the case of the plaintiff was that the suit land was sold to her by defendant No. 3 for a sum of Rs. 2,500/-. It was not her case that it was gifted to her in consideration of past cohabitation between her and defendant No. 3. Therefore, what Mr. Jagannadha Rao has argued is a complete volte face. Such a plea cannot be permitted to be raised. The sale deed also does not state that past cohabitation was the consideration for the transaction.

Lastly he has invited my attention to a decision of the Supreme Court in State of Kerala Vs. Cochin Chemical Refineries Ltd., . The principle laid down in that decision is that a mortgage transaction which has been formally executed does not become void and ineffective merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him. It has, therefore, been argued That in the instant case the maximum that defendant No. 3 can do is to file a suit to recover the sum of Rs. 2,500/- against the plaintiff. According to him, the failure to pay the price does not mean that the title to the suit property did not pass to the plaintiff. I am unable to uphold this argument because a sale presupposes, as laid down in S. 54 of the Transfer of Property Act, a price paid or promised fully or in part. If the price was not paid as in the instant case, there must be something to show that there was a promise to pay. There is nothing in the pleadings or in the evidence to show that there was a promise by the plaintiff to pay cash consideration to defendant No. 3.

Adverting to the illicit intercourse between the plaintiff and defendant No. 3, Mr. Jagannadha Rao has tried to argue that the relationship between them was not illegitimate because the plaintiff''s husband was not heard of for more than 20 years. According to him, therefore, the plaintiff must be deemed to have become a widow who could be said to be at liberty to have sexual relationship with another man. He has relied upon Ss. 107 and 108 of the Evidence Act in that behalf. S. 107 provides that when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years the burden of proving that he is dead is on the person who affirms it. S. 108 makes an exception to the rule Laid down in S. 107. It provides that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. In a case of this type e bare statement made in evidence by the plaintiff, in the absence of an issue, cannot lead to the conclusion that within the meaning of S. 108 of the Evidence Act, the plaintiff''s husband should be deemed not to be alive. If that was the case it was open to the plaintiff to institute proceedings for divorce and to get divorce on that ground. It was also necessary in the instant case to plead the fact and to have an issue raised. Nothing of that type was done. I am, therefore, unable to uphold the argument that the plaintiff must be deemed to be a widow and therefore her relationship with defendant No. 3 was not illegitimate or against public policy.

I am, therefore, of the opinion that the transaction of sale between defendant No. 3 and the plaintiff was void for want of consideration and the courts below were justified in dismissing the plaintiff''s suit. The appeal, therefore, fails and is dismissed with costs.