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1. This appeal arises out of a suit filed by the plaintiff for a declaration that certain gifts were void, for recovering one-third share in the properties conveyed by them and for other ancillary reliefs. The main facts in this case are undisputed. Chunilal, a wealthy but profligate Bania of Dharangaon, died without issue on 12th April 1938. In 1908 when he was forty years of age, he brought defendant 1, a Mahomedan prostitute girl of fifteen, from Aurangabad, and kept her as her mistress. He kept her in a separate bungalow till the death of his wife Kasabai in 1931, and thereafter they lived together in the same house. On 5th January 1914, six years after defendant 1 became his mistress, Chunilal gave her a bungalow worth Rs. 1000 and two lands worth Rs. 3000 by two gift deeds, Exs. 181 and 183, and another house worth Rs. 500 in 1926 by the gift deed, Ex. 188. He then passed four more deeds of gift in her favour in 1929 and 1931, and two in favour of her brother, defendant 2, in 1931 and 1932. The properties thus gifted were given into their possession and are in their enjoyment. The plaintiff and defendants 3 and 4 are the grandsons of Chunilal's separated uncles and claim to be his nearest heirs. The plaintiff brought this suit to recover by partition his one-third share in Chunilal's property, alleging that all the gift-deeds passed by him in favour of defendants 1 and 2 were void, as their consideration was past and future cohabitation with defendant 1. The lower Court held that the plaintiff and defendants 3 and 4 were the nearest heirs of Chunilal, and the gifts were void, but the claim to recover the properties given under Exs. 182, 183 and 188 was time-barred. A preliminary decree for partition of the properties conveyed by the other six gift deeds was passed in favour of the plaintiff. This is an appeal against that decree by defendant 1 alone. Defendant 2 has not appealed, and thus we are concerned in this appeal only with four gift deeds, Exs. 185, 189, 184 and 186.

3. Two questions arise with regard to the claim for the properties conveyed by Chunilal to defendant 1, whether the four deeds of gift are void, and if they are, whether Chunilal's heirs are estopped from seeking to recover them as the deeds of gift were acted upon. The lower Court has found in favour of the plaintiff on both these points.

4. All the four documents, Exs. 185, 189,184 and 186, are described as deeds of gift, pure and simple, and were passed by Chunilal when defendant 1 was in his keeping as his mistress. This fact is recited in the deeds, but there is no reference in them to the continuance of the cohabitation in future. Mr. Shah, the learned Counsel for the plaintiff, contends that although they are nominally gifts, they are really transfers, having for their object or consideration past cohabitation, and that they are void under Section 6(h), T.P. Act, read with Section 23, Contract Act.

18. The following propositions emerge from all this discussion: (1) An agreement or transfer of property, whose object or consideration is future illicit cohabitation, is void; (2) a gift requires no consideration and past illicit cohabitation can be a motive for a gift but not its object or consideration; and does not render the gift void, (3) under Section 2(d), Contract Act, past illicit cohabitation can be the consideration for an agreement or a transfer of property other than a gift and such an agreement or transfer is void; and (4) if such a void agreement precedes a gift and the gift is made in discharge of that agreement, then the gift also is void.

27. After Chunilal's death on 12-4-1935, defendant 1 required money for his obsequies and she borrowed Rs. 3500 from defendant 23 by mortgaging the northern half of city survey No. 1898 of Jalgaon which had been gifted to her by Chunilal by exhibit 186. The lower Court held that the plaintiff and defendants 3 and 4 were entitled to recover the properties conveyed by that gift-deed free of defendant 23's encumbrance. He, therefore, filed appeal No. 140 of 1943 contending that he was a bona fide mortgagee for value and that his mortgage was binding on the property under Section 41, T.P. Act, even if the deed of gift be void. We have now held that the gift made by exhibit 186 is valid and that the plaintiff and defendants 3 and 4 are not entitled to recover the properties conveyed by it. It follows, therefore, that defendant 23's rights as a mortgagee from defendant 1 remain unaffected. His appeal must, therefore, be allowed.