1970 Supreme(Mad) 376

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Ramamurti and Ganesan, JJ.
Saradambal Ammal
Versus
A.M. Natesa Mudaliar
Appeal No. 49 of 1964 (pauper).
Decided On : 23 November 1970

Headnote:

Ganesan, J.-The suit out of which the appeal arises was instituted in forma pauperis by the appellant Saradambal Animal for a declaration of her title to the suit house and for recovery of possession of the same from the respondent-defendant, Thiru Natesa Mudaliar, with past and future profits.

Fact of the Case:

The appellant was admittedly living as his permanent concubine, with the respondent in the latter’s house from the year 1946; nor is it disputed that, on 16th May, 1951, the respondent settled the house on the appellant by means of a registered settlement, copy of which is Exhibit A-1 and that, subsequently on 5th August, 1960, a rectification deed styled as a release deed (registration copy Exhibit A-3) was executed in her favour by the respondent as well as Thiru Palaniswami from whom the respondent had purchased the property.

Finding of the Court:

The learned trial Judge has found that the suit property is the self-acquired property of the respondent, that the settlement is not a sham and nominal document as contended for by the respondent, that the settlement deed, however, was executed for an immoral object, viz-future adulterous illicit cohabitation of the appellant and the respondent, that the transaction is therefore void in law and unenforceable and is a nullity, that the improvements and additions were effected by the respondent by spending his own moneys to the extent of Rs. 3,750, that the revocation by the respondent is not legal, that the appellant was not entitled to recover the suit property and that, if the appellant was entitled to recover the same, she can take it on payment of Rs. 3,750 to the respondent who had caused the improvements, etc. to the suit house.

Issues: 1. Whether the settlement deed in question was a sham and nominal document not intended to be and was not in fact acted upon. 2. Whether the respondent continued to be in possession and enjoyment of the house in his own right after the settlement, paying taxes etc. 3. Whether there was any transfer or divestment of title or possession. 4. Whether the suit property is the joint family property belonging to him and his son Jawahar, having been purchased with joint family funds and the settlement deed is therefore invalid. 5. Whether the settlement is illegal, void and opposed to law, public policy and morals, as it was executed in consideration of the adulterous living of the appellant with the respondent and on condition of her agreeing to continue her immoral adulterous life with him till the end of her life. 6. Whether the purpose and object for which the settlement was executed was illegal and opposed to public policy and the transaction is therefore void, unenforceable and a nullity. 7. Whether after the settlement, the respondent effected improvements to the suit house, built the first floor and put up a terraced construction on the vacant portion of the backyard of the house with his own moneys; he had spent more than a sum of Rs. 10,000 towards that purpose. 8. Whether the appellant had no means of her own and the borrowings from the Cooperative Urban Bank Limited, were done by the respondent and the money was taken by him for his own business. 9. Whether it was the appellant who left the house stealthily and was living since then with her paramour Dakshinamoorthy.

Ratio Decidendi: The settlement deed in question is a gift pure and simple and not an agreement for any consideration. The past illicit cohabitation between the appellant and the respondent was the motive for the settlement and future cohabitation was not intended to serve as a consideration or as a condition precedent for a gift to take effect but was intended only as a condition subsequent and not the object of the transaction.

Final Decision: The appeal is allowed and the suit is decreed. The appellant’s prayer for a declaration that she is entitled to the suit house is hereby granted. The respondent will deliver possession of the suit property to the appellant forthwith and in default the appellant will be at liberty to recover possession of the suit house by executing this decree. The claim for past mesne profits and for future mesne profits till the date of this decree is disallowed and the appellant will be entitled to future mesne profits at the rate claimed in the plaint only from the date of this decree. In view of the complexity of the issues, I direct that each party will bear his or her costs throughout, except that the defendants should pay the Court-fee payable to the Government here and in the Court below.