Madras High Court
Sargunam Ammal vs Jayarama Padayachi And Ors. on 23 January, 1993
Equivalent citations: I(1994)DMC545
JUDGMENT Srinivasan, J.
1. The second plaintiff is the appellant. She came on record as the legal representative of her deceased husband, who filed the suit for partition and separate possession for her l/4th share in the suit properties. The properties belonged originally to the joint family of one Natesan Padayachi and his four sons. Natesan died in about 1940. His eldest son Narayanaswami died in 1945 and his son is the first defendant. The second defendant is another son of Natesa by a name Ramalingam. The first plaintiff was the third son of Natesan and he died after the institution of the suit on 15-9-1981. The fourth son of Natesan was Oovindan, who died in 1970. His sons are defendants 3 and 4 and his wife is the fifth defendant. The family owned about 130 acres of India. The first plaintiff executed a settlement deed on 1-9-1964, marked as Ex. B 1 giving his undivided share to the first defendant to be enjoyed by him for his life and the remainder to be taken by his children absolutely. It was recited in the document that the first defendant shall maintain the first plaintiff and his wife, the second plaintiff during their lifetime. In 1972, the coparceners entered into a partition under Ex. B-2 dated 14-1-1972 dividing all the properties in which the first defendant got an extent of about 55.80 acres including the share of the first plaintiff, which was given to him under the settlement deed dated 1-9-1964.
2. In the plaint the relevant portion reads as follows :-
"While so plaintiff was induced into executing a document on 1-9-84 purporting to be a deed of settlement in favour of 1st defendant. He was induced to do so in the belief that the settle will be faithful to plaintiff and will treat him properly. It was not intended to be effective at all. The settlement was never accepted or acted upon. It was not duly attested. Under these circumstances the settlement is non est and it has no value at all."
The plaint also made a reference to the partition of 14-1-1972 and raised a plea that it was wholly void. On the basis of the game the plaintiff prayed for partition and separate possession of 1/4th share.
3. The defence is on the following lines the plaintiffs had no issues and the first plaintiff arranged for the marriage of the first defendant with his wife sister, Savithri Ammal. As Savithri Animal's father insisted that properties should be settled on the first defendant as a marriage provision, the first plaintiff being the paternal uncle of the first defendant and also the brother in law of Savithri Ammal executed the settlement on 1-9-1964 with the intention of giving effect, to the same. The other members of the family did not object to the same and it is false to say that the settlement was brought about by inducing the plaintiff to execute the same. The deed was acted upon and the patta was transferred in favour of the first defendant. He was paying the agricultural Income-tax and kist and he was in enjoyment of the properties. Subsequently after the partition in 1972 the first defendant took possession of all the properties which fell to his share and continued to enjoy. The document is valid in law and without seeking to set aside the same the suit by the plaintiff is not maintainable. The plaintiff has also no right to question the deed of partition between the coparceners and without making a prayer for setting aside the same, the plaintiff is not entitled to any relief.
4. The Trial Court found that the plea of the plaintiffs that it was brought about by inducement is not made out and that the document is fully supported by consideration inasmuch as it was executed as a marriage settlement. The Trial Court also held the suit was not sustainable without a prayer by the plaintiff to set aside the document and the claim was really barred by limitation, Ultimately, the Trial Court dismissed the suit.
5. The aggrieved second plaintiff has preferred this appeal contending that the document dated 1-9-1964 is void ab initio as it is a gift of joint family properties. It is contended that a coparcener cannot gift away his undivided share in the family properties and it will not be valid even as against his share. There is no substance in this contention. Before considering the position in law we will advert to the evidence on record. Only witness on the side of the plaintiffs is the second plaintiff. She admits that she was not aware of the circumstances under which the document came into existence. According to her, she came to know of the settlement deed only one month prior to the filing of the suit. He also admits that it was her husband who brought about the marriage of the first defendant with her younger sister Savithri Ammal. The claims that she was not aware as to whether her father demanded execution of the settlement deed in favour of the first defendant as a condition for giving his daughter in marriage to him. As she is absolutely unaware of the execution of the settlement deed her evidence is worthless. Apart from her oral evidence there is no other evidence on record. Plaintiff have not filed any document in support, of their contention that the properties continued to be in possession of the first plaintiff and after his death in possession of the second plaintiff. There is no record to show that the settlement deed or the partition deed was not acted upon.
6. On the other hand, the first defendant has besides examining himself, examined one of the attestors to Ex. B-l as D.W. 2. The evidence of both of them clearly proves that the document was executed by the first plaintiff with full consciousness of that she was doing. The evidence also makes out that the document was executed as a marriage settlement in consideration of the first defendant agreeing to marry the second plaintiff's sister. Exs. B-3 to B-7 prove that the documents were acted upon and the first defendant was in possession and enjoyment of the lands.
7. In the circumstances, we have no doubt that the facts of the case prove that the document Ex. B-1 dated 1-9-1964 was executed in consideration of the first defendant agreeing to marry the second plaintiff's sister. He married the sister of the second plaintiff soon after the document Ex. B. 1.
8. It is no doubt true that in Hindu Law there cannot be a gift of coparcenary property of one of the coparceners and such a gift will be void even against the donor. But, there can be an alienation for consideration. Marriage settlements have always been held to be alienations for consideration. In Nanjudaswami Chetty v. Kanagaraju Chetty, T.L.R. 42 Madras 154 a Division Bench held that the settlement of a portion in favour of his foster-daughter in pursuance of a promise made by him in consideration of her marriage with another who offered to marry her on such a condition is not a gift but is valid and binding on the alienor's son to the extent of the alienor's share as an alienation for consideration. That was followed in Srinivasa Padayachi v. Parvathiammal and Ors., 82 L.W. 411. Mr. Justice Natesan referred to the entire case law on the subject and dealt with the matter in detail, if was held that; a deed of settlement executed before the marriage of a woman by her husband which recited that in view of the insistence of a settlement of properties when the settlor asked the plaintiff to marry him, he is giving the properties under the settlement deed and placing the same in her possession was valid as it was one for consideration. The settlor could not ignore the same thereafter. The relevant passage in the judgment reads as follows :
"Now at the time of execution of Ex. A. 1, the properties as were joint family properties and the settlement was made by a coparcener. I he other coparcener tiled the suit for partition and secured his half share therein. In that suit, there was no plea as between the settlor and the present plaintiff, that the document was void, nor was there any finding in that suit given as to the true character of the settlement deed, whether it was a gift or conveyance for consideration. The plaintiff in that suit, the brother of the plaintiff's husband, was given a half share in the properties, ignoring the alienation as not binding on his share, overruling the defence that it was not joint family property. But if in law, the alienation was a gift, it is well settled that the same would not bind even the settlor and the absence of a finding in the earlier suit is neither here nor there. It was sufficient for the determination of that suit if it did not bind the plaintiff therein. The law is thus summed up in Mullah's Hindu Law 13th Edn. at page 291, thus :
"Accordingly to the Mitakshare law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel of other kind of personal bar which precludes the donor from asserting his right to recover the transferred property".
"Mr. A. Sri Rangachariar for the appellant referred to a number of authorities where gifts by coparceners, particularly, a gift of ancestral immovable properties by a husband to his wife out of natural love and affection and even in fulfillment of his father wishes, have been held to be void. My attention was drawn to Sivagnana Thevar v. Udayar Thevar where Veeraswami, J., following the Division Bench decision of this Court in Palavanna Nadar v. Annamalai Ammal 1957-1-MLJ 238, 70 L.W. 261 held that a gift of even a reasonable portion of immovable property belonging to the joint family to a second wife as a marriage gift or in anticipation of marriage is invalid. In Perunalakkai v. Kumaresan Balakrishna the Supreme Court, while pointing out that a Hindu father can make a gift within reasonable limits of immovable ancestral property to his daughter in fulfillment of an ante-nuptial promise made on the occasion of the settlement of the terms of her marriage and the same can also be done by the mother in case the father is dead, remark that no single case had been referred to where a gift by husband to his wife of immovable ancestral property, was upheld. After noticing that a Hindu father or any other managing member had power to make a gift within reasonable limits of ancestral immovable property for pious purposes, it was said that the Court saw no reason to extend the scope of 'pious purposes' beyond what had already been done. It was observed that even the father-in-law's, if he had a desire to make a gift at the time of the marriage of his daughter-in-law would not be competent to do so in far as immovable ancestral property was concerned. But these cases are all cases of gift and it is manifest that a gift of ancestral immovable property, in favour of the wife would be wholly invalid whether made by the husband or the husband's father or manager of the joint family of the husband. But according to the Mitakshara Law prevailing in this state, a coparcener may sell, mortgage or otherwise alinate for value his undivided interest in the coparcenary property without the consent of other coparceners. In Suraj Bansi Kour v. Shea Prashad Singh 6, 7 A.88 (P.C.) the Judicial Committee observed that it has been settled law in the Presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share and afortiori that such share may be seized and sold in execution for his separate debt. "To restate only a gift of joint family property except for the purposes cognised, by the personal law, is wholly void and does not bind even the alienor. The question now is whether the settlement deed Ex. A. 1 is a deed of gift or is a transfer for consideration.
The document Ex, A1 recites that, in view of the insistence of a settlement of properties when the settlor asked the plaintiffs to marry him, he is giving the properties under the settlement deed and placing the same in her possession. The properties are to be enjoyed by her during his lifetime without alienation. Children of the marriage have to take the properties absolutely, and, if there is no issue by the marriage, the plaintiff herself has to take the' properties. The settlement in this case was not just a motive or a grant made out of affection or as a provision for the future. The transfer here was not just a gratutious transfer.
The transfer preceded the marriage and in consideration of the same the marriage followed immediately after. The Transfer of Property Act defines a gift as a transfer of certain existing movable or immovable Property made voluntarily and without consideration by a person called the donor to another called the donees, and accepted by or on behalf of the donee. As pointed out in Mullah's Transfer of Property Act, 5th Edn. page 772, the word 'consideration' is used in the definition of gift under the Transfer of Property Act, in the same sense as in the Indian Contract Act, and excludes natural love and affection. Mullah quotes Blackstone as saying "gifts are always gratuitous", grants upon some consideration of equivalent. See also Kulasekara Perumal v. Pathalkutti, . The Indian Contract Act defines consideration in Section 2(d) as follows :
"When, at the desire of the promisor, the promises or any other person has done, abstained from doing, or does or abstains from doing, something, such act or abstinence or promise is called a consideration for the promise".
As Anson, in his Law of Contract, 22nd Edn. page 92, points out, consideration, of course, must be something which is of some value in the eye of law". Motive must not be confused with consideration. A desire to carry out the wishes of a deceased or a person to whom the alienor has respect would not amount to a consideration. It is well recognised that a promise to marry is a valid consideration-See Tejaunnissa Bivi Animal v. Rahmath Bivi Ammal . Marriage may be a sacrament under Hindu Law, but, that does not militate against the existence of a contract for the marriage. Normally, the reciprocal promise to marry would be consideration, for the contract of marriage. But there could be other consideration, provided that such consideration is not opposed to public policy or in any manner illegal. In Chetty's contract, Volume 1, 22nd Edn. page 512, it is said ;
"On the other hand, the promise must be supported by consideration to be actionable; and though this consideration is usually reciprocal promise to marry it is not necessary that this should be pleaded when there is other consideration." In Pran Mohan Hart Mohan, AIR 1952 Cal. 856, 857 where the plaintiff's agreed to give a house to the 2nd defendant in the case and induced the bridegroom party to agree to the marriage the Court observed :
"There is, therefore, a finding by the Courts below that there was ante-nuptial promise by the plaintiff which became a binding a contract when the marriage followed. The validity of such contracts is well-established. In the case of Gobindaswami Dasi v. Radha Ballahea Dasi (1910) 15 C.M.N. 205 Mr. Justice Mookerji held that such contracts are valid and binding."
The Court there distinguished the cases of marriage brokerage contracts which are opposed to public policy and cases where there was no consideration except natural love and affection.
The lower Appellate Court in this case has followed the decision of this Court in Nanjundasami Chetti v. Kanagaraju Chetti, 42 Mad. 154 In that case a settlement of a portion of joint family property was made by a Hindu in favour of his foster daughter, in pursuance of a promise made by him in consideration of her marriage with another who offered to marry her on such condition. It was held that the settlement was not a gift, but was valid and binding on the alienor's son to the extent of the alienor's' share as an alienation for consideration. It was a case of settlement pursuant to a promise made when the intended husband insisted on the settlement as a condition for the marriage similar to the present case except that the promise here is by the husband to his would be wife. The settlement was by the foster father of her would be husband. It must be noted that the bride not being the daughter of the joint family the settlement evidently was not attempted to be justified as a gift permitted under the Hindu Law. The Court observed in that case that if a person contracted a marriage in 'consideration' of a promisee, then the marriage would be valuable consideration within the meaning of the definition of consideration in the contract Act. After pointing out that it was settled law that a coparcener could not make a valid gift even of his share the Court proceeded to consider the question whether the transaction in that case was a gift or alienation for valuable consideration. The Division Bench posed before itself for decision the question whether the gift made in pursuance of a promise for consideration of marriage, is an alienation for valuable consideration under Hindu Law and observed.
"But once the validity of alienation for valuable consideration is recognised, it seems to us impossible not to include such transaction as this within the operation of the rule. None of the cases to which we have been referred lay down that this power of a Hindu coparcener is merely confined to sales or mortgages, but the general proposition which we deduce from the decisions in Ayyagiri Venkatramayya v. Ayyagiri Rameyya (25 Mad. 690) Baba v Timma (7 Mad. 357) Ponnusami v. Thaththa (9 Mad. 273) and Kasturiramaraju v. Aluri Ramalinga (26 Mad. 74) is that an ordinary simple gift for no consideration will not be upheld as distinguished from alienation for consideration. We therefore hold that the 14th defendant is entitled to a half share of items 3 to 8 of A Schedule.
The 14th defendant in the case was the husband of the 4th defendant the bride who died pendente lite. It was found in that case also, the promise was made just before the marriage. In my view, this decision governs the instant case. Here also, the concurrent finding of the Courts below is that the settlement was made in consideration of promise of marriage just prior to the marriage, and the settlement was followed by the marriage. Both the settlor and the settle the husband and would be wife, were adults the actual contract was between them and the settlement was in favour of the would be wife. There is no question of any public policy involved with reference to the settlement, and the mutual promises have been performed This is not a case of any gratuity or a gift to a third party in consideration of giving an infant or minor in marriage nor is it a marriage brokerage contract. The husband, is, therefore, bound by the settlement. The settlement being a transfer for consideration is not wholly void and is good to the extent of the settlor's interest in the properties. There is no question of natural love and affection at that stage. Of course, the settlement did not bind the settlor's brother and the contest is with reference to the settlor's share only. No decision of our Court contrary to the decision in Nanjudasami Chetti v. Kanagaraju Chetty (42 Mad. 154), has been placed before me. The ratio decidendi of this decision is that a transfer made specifically in consideration of marriage, is an alienation for valuable consideration within the rule of Hindu Law and not a gift. It follows that the decisions of the Courts below are correct and cannot be at assailed in law."
9. It is also settled law that a gift of coparcenary property can be made with the consent of all the coparceners. In Mulla's Hindu Law 15th Edn., 346 (para 258) it is stated that a coparcener can make a gift of his interest with the consent of the other coparceners. The question was considered by a Division Bench of this Court, Rathnasabapathi v. Saraswathi Ammal (1953-II-MLJ 459, 66 L.W. 852). The Division Bench held that a gift made with the consent of all the coparceners where there is no minor or childs in the womb, could not be attacked as being void ab initio. In the present case the settlement deed was executed on 1.9.1964 and all the other coparceners entered into a partition deed on 4.1.1972 under Ex. B2 recognising the validity of the settlement deed. They allotted the share of Natesa Padayachi to the first defendant in the partition besides the share of his own father, Narayanasami. Thus the settlement deed has been consented to by all the coparceners and the first plaintiff did not seek to challenge either the settlement deed or the partition deed till she instituted the present suit in 1980. In the circumstances, it is possible for this Court to draw an inference that the settlement deed was executed with the consent of all the coparceners and it is not open to attack by the plaintiffs. There is no merit in the appeal. It is dismissed, but there will be order as to costs.