A gift made for an illegal purpose, such as illicit cohabitation, is invalid and inoperative. However, if a valid marriage exists between the donor and the donee, the gift cannot be held to be tainted with illegality or against public policy.

JUDGMENT :- The plaintiff is in appeal against a reversing judgment of the learned District Judge of Koraput.

2. She filed the suit for declaration that she was the sole heir of her deceased husband Ramamurty and was entitled to the properties left by him. She also prayed for recovery of possession in respect of his properties upon a declaration that the gift by Ramamurty in favour of the defendant was invalid. She also made a claim for mesne profits.

Her case was that on 1-10-62 Ramamurty died issueless at Vizagapatam. The defendant was the wife of one Adinarayana of Jagadalpur, had left her husband and was living with Ramamurty, but was not his married wife. The suit properties were the self-acquisitions of Ramamurty and after him the plaintiff as the widow became entitled to succeed to such properties.

On 26-3-62, the defendant obtained the gift deed Ext. A in respect of the house located in Jeypore town. The narration in the deed of gift Ext. A was that the plaintiff had consented to the marriage of Ramamurty with the defendant; the defendant was the wife of Ramamurty and the house in question which was the subject-matter of the gift had been constructed with the money of the defendant. All these allegations were false. The house was in possession of Ramamurty. The alleged gift had never been acted upon and possession had never been made over to the defendant. There was no acceptance of the gift within the lifetime of Ramamurty. It was further alleged that the consideration for the gift being illicit cohabitation the gift was illegal and could not be given effect to.

3. The defendant contended that she was not the wife of one Adinarayana and was the legally wedded wife of Ramamurty, and she (sic) had lived together as man and wife for more than 12 years until Ramamurty died on 1-10-62 leaving 3 sons and 2 daughters born out of the said wedlock and the plaintiff cannot be said to be the sole heir. The gift was valid and as admittedly the subject-matter of the gift was the self-acquisition of Ramamurty the husband was competent to make a gift of the same.

It was alternatively contended that Ramamurty had no ancestral property and was a bus conductor receiving a salary of Rs. 60/- per month. His earning was insufficient even to maintain the family. The defendant had 25 Tolas of gold. The house in question was constructed during the years 1960-61 out of the sale proceeds of the major portion of the gold and was thus really the Stridhan of the defendant. The deed of gift accepted the said fact. The gift was also accepted in fulfilment of a marriage promise which was to the effect that Ramamurty would provide a suitable residential accommodation for the defendant. The gift had been accepted and was acted upon. Thus the defendant acquired valid title in respect of the suit house.

4. The trial court found that the defendant had failed to prove that she was the wife of Ramamurty; consideration for the gift was illicit cohabitation; this being an illegal consideration the gift was invalid and inoperative and the suit properties belonged to Ramamurty and the plaintiff being his widow was entitled to the same on his death.

On the aforesaid findings the suit was decreed.

5. The learned District Judge, however, did not agree with the trial court and came to find that the defendant was the wife of Ramamurty; the gift under Ext. A was valid and had been acted upon; there was absolutely no undue influence and in natural circumstances the gift had been made; the defendant had contributed for the construction of the suit house and the averments in the deed of gift were also correct. On these findings the learned District Judge directed the suit to be dismissed indicating therein that it was open to the plaintiff to file a separate suit for her share in respect of certain movables. It is against this reversing judgment of the learned Appellate Judge that the present Second Appeal has been brought before this Court.

6. The fact that the plaintiff is t