Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1967 Supreme(SC) 198

SUPREME COURT OF INDIA
R.S. BACHAWAT, J.M. SHELAT AND V. BHARGAVA, JJ
Dwarampudi Nagaratnamba (In all the Appeals), Appellants
Versus
Kunuku Ramayya and another, Respondents.
Civil Appeals Nos. 83 to 85 of 1965,
D/-19-7 1967.
Advocates Appeared
Mr. P. Ram Reddy, Senior Advocate, (M/s. A. V. V. Nair and B. Parthasarathy Advocates and Mr. O. C. Mathur, Advocate of M/s. J. B. Dadachanji and Co. with him), for Appellant (In all the Appeals), M/s. C. R. Pattabhiraman and R. Ganapathy Iyer, Advocates for Respondents (In Civil Appeals Nos. 83 and 84 of 1965) and Respondents Nos. 1 to 5 (In Civil Appeal No. 85 of 1965). 254

Advocates:
A.V.Velayudhan Nair, B.PARTHASARTHY, C.R.Pattabhi raman, CO., J.B.DADACHAN, O.C.MATHUR, P.RAM REDDY, R.Ganapathy Iyer

A Karta of a joint family under the Madras school of Mitakshara law does not have the power to make a gift of even his undivided interest in the coparcenary properties to his concubine.

Headnote:
GIFT OF COPARCENARY PROPERTY - CONSIDERATION - PAST COHABITATION - VALIDITY - TRANSFER OF PROPERTY ACT, 1882, SECTION 6(H) - INDIAN CONTRACT ACT, 1872, SECTION 2(D) - MADRAS SCHOOL OF MITAKSHARA LAW - VALIDITY OF GIFT OF COPARCENARY PROPERTY BY KARTA.
Fact of the Case:

Venkatacharyulu, the Karta of a joint family, transferred certain properties belonging to the joint family to his concubine, the appellant, through two registered sale deeds in 1946. In 1947, the joint family was disrupted, and in 1954, Venkatacharyulu's widow and sons filed a suit for recovery of possession of the properties, alleging that the transfers were void due to lack of consideration or immoral purposes. The appellant filed a suit for general partition of the joint family properties and allotment of the transferred properties to her.
Finding of the Court:

The High Court found that the transfers were not supported by any consideration and were made in view of past illicit cohabitation, which was the motive and not the consideration for the transfers. It held that Venkatacharyulu had no power to make a gift of the joint family properties, and the subsequent severance of joint status in 1947 could not validate them.
Issues: 1. Whether the transfers were made in consideration of past cohabitation and were valid under Section 2(d) of the Indian Contract Act, 1872. 2. Whether the transfers were hit by Section 6(h) of the Transfer of Property Act, 1882, due to past cohabitation being the motive for the gifts. 3. Whether Venkatacharyulu had the power to make a gift of the coparcenary properties under the Madras school of Mitakshara law.
Ratio Decidendi: 1. The past cohabitation was the motive and not the consideration for the transfers. The transfers were without consideration and were by way of gifts. 2. The gifts were not hit by Section 6(h) of the Transfer of Property Act, as the past cohabitation was the motive and not the consideration for the gifts. 3. Under the Madras school of Mitakshara law, Venkatacharyulu had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine.
Final Decision: The appeals were dismissed, upholding the High Court's decrees. The transfers under Exts. A-1 and A-2 were invalid, and the disruption of the joint family in 1947 did not validate them.

Judgement

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, (Exts. A-1 and A-2), he transferred to the appellant certain properties belonging to the joint family. In 1947 after the execution of Exts. 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 dismissed 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.

2. The High Court found that the transfers under Ex. A-1 and 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 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.

3. 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 where 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. In the alternative, the respondents contend that assuming that the transfers were made in consideration of past cohabitation, they were hit by Section 6 (h) of the Transfer of Property Act, 1882.

4. 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 a

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