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Sabava Yellappa Vs. Yamanappa Sabu - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberCross First Appeals Nos. 431 of 1928 and 37 of 1929
Judge
Reported inAIR1933Bom209; (1933)35BOMLR345
AppellantSabava Yellappa
RespondentYamanappa Sabu
DispositionAppeal dismissed
Excerpt:
transfer of property act [iv of 1882), sections 6(h), 54, 122-indian contract act (ix of 1872), sections 23(2), 25-sale of lands-gift of lands to concubine,-past and future cohabitation-unlawful object or consideration-indian limitation act [ix of 1908), article 144-in pari delicto potior eat conditio possidentis-rule in ayerst v. jenkins.;a hindu had kept defendant no. 1 as his concubine for a number of yeers. in 1903 he sold certain lands of his to defendant no. 1 and put her in possession. in 1917, while he was dangerously ill ho made a gift of some more lands to her and died shortly afterwards. his widow thereafter adopted the plaintiff in 1919. in 1927, the plaintiff having sued to recover possession of the lands from defendant no. 1 -;that the suit for recovery of possession of the.....patkar, j.1. in this case the plaintiff sued to recover possession of certain lands conveyed to defendant no. 1 by sabu, the adoptive father of the plaintiff, under a sale-deed, exhibit 85, dated september 21, 1903, and the other lands in suit conveyed by sabu and his wife, defendant no. 6, by a deed of gift, ex. 55, on june 26, 1917. the plaintiff was adopted in june 1919 by defendant no. 6, the widow of sabu who died in september 1917. out of the lands which were given in gift by exhibit 55, survey number 181 was alienated by defendant no. 1 in favour of defendant no. 5, her mukhtyar, in 1918, who in his turn sold it to defendant no. 2 in may 1921. survey no. 336, one of the lands given in gift, was sold by defendant no. 1 to defendants nos. 3 and 4 in september 1918.2. the case of the.....
Judgment:

Patkar, J.

1. In this case the plaintiff sued to recover possession of certain lands conveyed to defendant No. 1 by Sabu, the adoptive father of the plaintiff, under a sale-deed, Exhibit 85, dated September 21, 1903, and the other lands in suit conveyed by Sabu and his wife, defendant No. 6, by a deed of gift, Ex. 55, on June 26, 1917. The plaintiff was adopted in June 1919 by defendant No. 6, the widow of Sabu who died in September 1917. Out of the lands which were given in gift by Exhibit 55, survey number 181 was alienated by defendant No. 1 in favour of defendant No. 5, her Mukhtyar, in 1918, who in his turn sold it to defendant No. 2 in May 1921. Survey No. 336, one of the lands given in gift, was sold by defendant No. 1 to defendants Nos. 3 and 4 in September 1918.

2. The case of the plaintiff was that the sale transaction of 1903 was illegal and void, because defendant No. 1 was the mistress of Sabu, and though the ostensible consideration was cash, the real consideration was illegal, that is, past and future cohabitation. As regards the deed of gift, it was alleged by the plaintiff that defendant No. 1 was in a position to dominate the will of Sabu and that it was for the same unlawful object and consideration.

3. Defendant No. 1 denied that she was the mistress of Sabu and contended that she was admitted as an orphan into the house of Sabu's father and was brought up by Sabu's mother Gangava, that she was married to one Yellappa, that the sale-deed was for cash consideration and that the gift was not invalid, and that as regards the properties comprised in the sale-deed, the suit was barred by limitation.

4. The sale-deed, Exhibit 85, dated September 21, 1903, was in respect of nine lands for Rs. 800. Out of the nine lands, four lands were re-purchased by Sabu by Exhibit 87 in May 1905 for Rs. 400. The lands were transferred to the name of defendant No. 1 in 1904 and continued to stand in her name. The deed of gift was in respect of ten lands including survey numbers 181 and 336 sold to defendants Nos. 2, 3 and 4.

The learned Subordinate Judge held that the sale-deed was passed not for cash as stated in the deed but for past and future cohabitation, but held that the suit in respect of the property comprised in the sale-deed was barred by limitation as defendant No. 1 was in adverse possession for more than twelve years. With regard to the deed of gift the learned Subordinate Judge came to the conclusion that it was for past and future cohabitation and the deed of gift was void and the suit was within time, and, therefore, awarded the plaintiff possession of the lands comprised in the deed of gift, and ordered him to pay compensation to defendants Nos. 2, 3 and 4 for the improvements made by them in survey numbers 181 and 336 comprised in the deed of gift.

5. It appears from the evidence that defendant No. 1 was brought up by Gangava, the mother of Sabu. It is difficult to believe the defendant when she stated that she used to go to Sabu's house for household work and that she never met Sabu in private and knew him only by face till his death. It appears clear from the evidence that defendant No. 1 stayed with Sabu, the plaintiff's adoptive father, and that there was illicit connection between defendant No. 1 and Sabu. Rajapa, Exhibit 54, Amajeva, Exhibit 59, Raghavendra, Exhibit 65, Chaudsaheb, Exhibit 67, Joti, Exhibit 70, Balappa, Exhibit 71, and Maddanappa, Exhibit 72, prove that defendant No. 1 Sabava was the mistress of Sabu.

6. Defendant No. 1 in her evidence stated that the sale-deed was taken in her name because her husband Yellappa had gone to Berars at the time when the sale-deed was taken, i.e., September 1903, and did not return till about a year and a half after the sale-deed. Exhibit 75 shows that a daughter Satyava was born to defendant No. 1 on August 28, 1904. If the evidence of defendant No. 1 is true that Yellappa had gone away in Berars and did not return for a year and a half, it would clearly follow that there was no access between defendant No. 1 and her husband and the daughter Satyava must have been an illegitmate child.

7. Exhibit 74 shows that Bhima, the son of defendant No. 1, died of plague on September 19, 1904, Bhima's father's name is not mentioned but only, defendant No. l's name is mentioned as the mother. It appears that Bhima was also an illegitimate child, otherwise the father's name would have been mentioned in Exhibit 74. The learned Subordinate Judge held from Exhibit 74 that, as the father's name was not mentioned, Yellappa must have died when Bhima was born, i. e., in 1893. The inference based on such slender material is inconclusive. I am inclined to hold that Yellappa lived till about 1904, but defendant No. 1 was all along living with Sabu. It would, therefore, appear that Sabu had illicit connection with defendant No. 1.

8. It appears that in the deed of gift, Exhibit 55, defendant No. 1 is described as gunijan, and it is contended on behalf of the respondent that the term is applied to a concubine. The evidence on that point is somewhat discrepant. But apart from the description in Exhibit 55, there is clear evidence in the case to show that defendant No. 1 was the mistress of Sabu. It is unnecesary to discuss the other evidence in the case as it supports the conclusion which I have reached.

9. I do not attach much importance to Exhibits 100 and 33. I have excluded from consideration Exhibit 33, the written statement of defendant No. 5, the Vatmukhtyar of defendant No. 1, in which he stated that defendant No. 1 was living for a long time in Sabu's house as his wife. Defendant No. 5 has no interest in the property in suit at present and he made the statement when he ceased to be the agent or Mukhtyar of defendant No. 1.

10. 'Whether Yellappa was living in the house of Gurupadappa or not is a matter of little importance. The learned Subordinate Judge held that defendant No. 1 and her husband lived in the house of Gurupadappa till 1893. Whether Yellappa lived in the village of Arkeri in a separate house or not there is no doubt on the evidence that defendant No. 1 stayed with Sabu as his mistress and continued to live with him as his mistress after the death of her husband.

11. The next question is whether the sale-deed, Exhibit 85, was passed for a cash consideration of Rs. 800, or whether the consideration was past or future cohabitation of defendant No. 1 with Sabu. Defendant No. 1 relies on the sale-deed, Exhibit 86, passed in her name by one Ningava on February 6, 1900, for a consideration of Rs. 100, and it is urged that defendant No. 1 used to carry on money-lending business. The evidence on the point is very meagre and the income of the land purchased by defendant No. 1 by Exhibit 86 was insufficient to provide the consideration of Rs. 800 for the sale-deed, Exhibit 85. Witness Exhibit 109, examined in the lower Court to prove the payment of consideration to Sabu, was properly disbelieved by the learned Judge. I agree with the view of the lower Court that the ostensible consideration of Rs. 800 was not paid and that the real consideration for the sale-deed was past and future cohabitation,

12. It is contended on behalf of the appellant, defendant No. 1, that the past cohabitation is a good consideration for the sale-deed and reliance is placed on the decision on the case of Dhiraj Kuar v. Bikramajit Singh I.L.R. (1881). All. 787 and it is further urged that in the community to which Sabu belonged concubinage is not regarded with disfavour, and that a dasiputra is recognised among Shudras as an heir and maintenance is enforceable by a concubine. It would be convenient to discuss the question of the sale-deed and the deed of gift separately.

13. As regards the sale-deed for an ostensible consideration of Rs. 800, no transfer could be made, under Section 6(h) of the Transfer of Property Act, for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872. Section 23 of the Indian Contract Act lays down that the consideration or object of an agreement is lawful unless the Court regards it as immoral or opposed to public policy. The consideration or object of an agreement in such a case is said to be unlawful, and every agreement of which the object or consideration is unlawful is void. In the case of a sale-deed the consideration is the amount paid as the price for the sale. The consideration is different from the object. If the consideration or object of passing the sale-deed be immoral, i. e., past or future cohabitation, the transfer would be void under Section 6(h) of the Transfer of Property Act read with Section 23 of the Indian Contract Act.

14. In Dhiraj Kuar v. Bikramajit Singh it was held that a suit lay for arrears of allowance agreed to be paid to a woman for past cohabitation. It was observed in that case as follows (p. 788):-

Such a consideration, if consideration it can properly be called, which seems to us more than doubtful, would not be immoral, so as to render the contract 'de facto' void. But we think the more correct view is to regard the promise to pay the allowance as an undertaking on the part of Bikramajit Singh to compensate the woman for past services voluntarily rendered to him, for which no consideration, as defined in the Contract Act, would be necessary.

15. It appears that the case 'was supposed to fall under Section 25 (2) of the Indian Contract Act though it is not specifically referred to in the judgment. The view would seem to be supported by a dictum, which appears to be obiter, in the case of Ningareddi v. Lakshmawa I.L.R. (1901) Bom. 163: 3 Bom. L.R. 647 where it was observed as follows (p. 168) :-

Though such an agreement is not supported by consideration, yet as an agreement to compensate for past services voluntarily rendered, it was both according to the English and the Indian law valid and enforceable against him : see Section 25 Clause (2), of the Indian Contract Act (IX of 1872) and Dhiraj Kuar v. Bikramajit Singh.

16. It was, however, held in Kisandas v. Dhondu (1919) 22 Bom. L.R. 762 that past cohabitation is not good consideration for a transfer of property. The point does not appear to have been discusssed in the judgment. It was further held that if the transaction was considered as a gift, it would be invalid as the property was joint family property.

17. In the case of Husseinali v. Dinbai : AIR1924Bom135 , which related to an agreement to pay a certain amount for services rendered as a nurse but was in reality for past cohabitation, it was held that the consideration for the document being past cohabitation, it was unlawful as immoral or opposed to public policy, and the case of Dhiraj Kuar v. Bikramajit Singh was dissented from. It appears that the document on which the suit was brought was held to be not executed and signed by the deceased, and therefore, the discussion on this point would appear to be unnecessary. The reasoning, however, appears to me to be unassailable. Under Section 25 of the Indian Contract Act an agreement is void if made without consideration unless it came within one of the exceptions. Clause (2) provides an exception, namely, a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do. The word 'voluntarily', according to the decision in Sindha Shri Ganpatsingji v. Abraham alias Vajir I.L.R. (1895) Bom. 755 would exclude anything done at the request of the promisor, and it is difficult to hold that the services rendered by a mistress were rendered otherwise than at the request of the person keeping the mistress. Though under Section 2(d) of the Indian Contract Act services already rendered at the desire of the promisor are placed on the same footing with services to be rendered and would constitute a consideration for an agreement, a consideration which is immoral at the time, and therefore, incapable of supporting an immediate promise to pay, cannot become innocent by passage of time. Dhiraj Kuar's case has been distinguished in the judgment of a single Judge of the Allahabad High Court in the ease of Alice Mary Hill v. William Clarke I.L.R. (1904) All. 266

18. For the sale-deed in question there was no cash consideration of Rs. 800 as stated in the document. Ordinarily the consideration for a sale is a valuable consideration or price, and it is difficult to hold that past cohabitation, besides being immoral, is a valuable consideration. The sale-deed, therefore, might amount to a gift to defendant No. 1. The object of the deed is alleged by the plaintiff to be either past or future cohabitation. The word 'object' in Section 23 of the Indian Contract Act is distinct from 'consideration' and means something aimed at, and has been held to mean 'purpose or design' in the decision in Jaffer Meher Ali v. Budge-Budge Jute Mills Co I.L.R. (1906) Cal. 702 confirmed by the Appeal Court in Jaffer Meher Ali v. Budge-Budge Jute Mills Co. I.L.R. (1906) Cal. 289 If the object of a transfer of property is immoral, the transfer is void, and there cannot be any conveyance of any interest effected by the transfer. The object of the sale-deed in the present case was future cohabitation and might also be said to be a reward for past cohabitation. If the transfer is invalid, the person passing the document retains the title in himself, and would ordinarily be entitled to recover the property on the ground that the title has not passed from him. But the principle of equity enunciated in the case of Ayerst v. Jenkins (1873) L.R. 16 Eq. 275 would prevent the Court from giving aid to a person guilty of immoral conduct to recover the property on the ground of public policy.

19. In Ayerst v. Jenkins it was held that a Court of Equity would not, at the instance of a settlor or his legal personal representative, adversely set aside a settlement by which the settlor confers on a stranger the absolute beneficial interest in property legally vested in trustees, although such a settlement may have been made for an illegal consideration not appearing on the face of the instrument. It was observed by Lord Selborne as follows (p. 283):-

In the present case relief is sought by the representative, not merely of a particeps criminis, but of a voluntary and sole donor, on the naked ground of the illegality of his own intention and purpose; and that, not against a bond or covenant or other obligation resting in fieri, but against a completed transfer of specific chattels, by which the legal estate in those chattels was absolutely vested in trustees, ten years before the bill was filed, for the sole benefit of the defendant. I know no doctrine of public policy which requires, or authorizes, a Court of Equity to give assistance to such a Plaintiff under such circumstances...But the voluntary gift of part of his own property by one parliceps criminis to another, is in itself neither fraudulent nor prohibited by law ; and the present is not the case of a man repenting of an immoral purpose before it is too late, and seeking to recall, while the object is yet unaccomplished, a gift intended as a bribe to iniquity...It is a maxim of law not opposed to any equity, that 'in pari delicto melior eat conditio possidentis;' and it is a principle of equity, that long delay in seeking to rescind a transaction originally voidable, on the faith of which other persons have irrevocably made their arrangements in life, may operate as a bar to relief.

20. In that case the object of the settlement was future cohabitation, and as the settlor lived with the woman for some time as husband and wife and the legal representative ten years afterwards brought a suit to set aside the settlement on the ground of its being founded on a bad and illegal consideration, the suit was held not maintainable. At page 284 it was observed as follows :-

It may be that the door of this Court is not closed against persona repenting of such an unlawful connection, and desirous of extricating themselves from fetters which, if relief were refused, might practically bind them to it. But in a case presenting no such circumstances, I think it consistent with all sound principle, and with all authority, to recognise the importance of the distinction between a completed voluntary gift, valid and irrevocable in law (as I hold the transfer of these shares to the defendant's trustees to bo), and a bond or covenant for an illegal consideration, which has no effect whatever in law.

21. It is pertinent to observe that a transfer of property for an immoral consideration or object is void under Section 6(h) of the Transfer of Property Act and not merely voidable.

22. The case of Ayerst v. Jenkins has been considered in Thasi Muthukannu v. Shunmugavelu Pillai I.L.R. (1905) Mad. 413 where a young and inexperienced plaintiff assigned to the defendant, a dancing girl, a mortgage for Rs. 1,500, and the consideration stated in the document was not real, but the real consideration was future continuance of immoral relations between the plaintiff and the sister of the defendant. It was held that where the transaction amounted to a voluntary gift, it could not be set aside; but where a transaction, though completed, was intended to be for a consideration, it could be impeached if the consideration was immoral, and it made no difference whether the transaction was executed or executory. The case of Ayerst v. Jenkins was distinguished on the ground that the assignment of the mortgage was not a gift but was intended to be passed for a consideration and also purported to do so and therefore could be impeached, and reference was made to Phillips v. Probyn [1899] 1 Ch. 811 which has been criticised in Ashburner's Principles of Equity, 1902 Edition, at page 138. It was further held that the plaintiff was not in pari delicto on the ground of his age and his inexperience and want of independent advice.

23. The case of Ayerst v. Jenkins was followed in Deivanayaga Padayachi v. Muthu Reddi I.L.R, (1920) Mad. 329 where it was held that it is a well established rule of equity that a person who has transferred his property to another for an illegal or immoral purpose cannot get it annulled if the intended purpose has been carried out, and that Section 6, Clause (h), of the Transfer of Property Act, had not the effect of modifying the rule of equity. In that case the illegal purpose was past and future cohabitation.

24. It was held by Oldfield J. that the fact that in a certain section of the community concubinage is allowed and is not regarded as immoral does not make a settlement made by a member of such community in consideration of concubinage any the less immoral. I agree with the view thus enunciated and it is an answer to the other argument raised on behalf of defendant No. 1 that in the community to which Sabu belonged concubinage is not regarded as immoral and that a dasiputra is entitled to inheritance.

25. In that case the transfer was not only for past cohabitation but for future cohabitation, and some years after the date of the transfer a suit was brought to set aside the transfer. It was held by Abdur Rahim J. in that case that though the wording of Section 6(h), Clause (2), was clear that no transfer could be made for an unlawful object or consideration, it did not lay down in what classes of cases the Court would or would not assist a person particeps criminis, and did not modify the well established rule of equity as propounded in Ayerst v. Jenkins.

26. On the other hand, in Ghumna v. Ram Chandra Rao I.L.R. (1925) All 619 where a gift was made to a husband and wife for the purpose of maintaining immoral relations with the female donee, and where after the murder of the donor by the donees, a suit was brought by the heir of the donor, it was held that the consideration for the transfer was future illicit connection between the donor and the female donee, and the consideration being unlawful, it could not be a valid consideration for the deed of gift at all, and that the deed was not only voidable but absolutely void from the very beginning and it was not necessary to be avoided by suit. The decision in this case is inconsistent with the decision in Deivanayaga Padayachi v. Muthu Reddi I.L.R. (1920) Mad. 329 and the question as to whether the transferor or his heir could get the assistance of the Court for setting aside the gift which was for the continuance of future immoral relations, was not considered.

27. The case of Brahmayya Lingam v. Mallamma : AIR1924Mad849 relates to a gift made for past cohabitation and future cohabitation, and it was held that it was a well established rule of equity that a person, who has transferred property to another for an illegal or immoral purpose, cannot get it annulled if the intended purpose had been carried out, and as part of the consideration was for the past cohabitation and the defendant continued as the plaintiff's concubine for some time after the deed, the plaintiff could not succeed.

28. The maxim in pari delicto potior est conditio possidentis is intimately connected with another rule of the law, ex turpi causa non oritur actio: see Broom's Legal Maxims, 9th Edition, page 466, and Scott v. Brown, Doering, McNab & Co. [1892] 2 Q.B. 724

29. Apart from authorities, the consideration for a sale under Section 54 of the Transfer of Property Act is price or valuable consideration. If the object of the sale is the continuance of immoral relations, the transfer would be a nullity according to Section 6(h) and no title would pass. If the object is the maintenance of future immoral relations, the transferor can get back the property if the immoral object has not been carried out. It is only where the immoral object has been carried out that the principle that a Court of Equity would refuse its aid to a person who is a particeps criminis would prevent the man from recovering back the property. It is difficult to hold that past cohabitation can be considered as consideration for a sale. It has been held by recent Bombay decisions, to which I have referred, that past cohabitation is not a good consideration for a transfer of property. I think that 'consideration' means valuable consideration, and where the object of a transfer of property is illegal or immoral the transfer is void, and where the illegal object has been carried out, the Court will not lend its aid to the plaintiff, who has been guilty of such immoral or illegal conduct, to recover back the property.

30. In the case of the sale-deed in the present case, which was for past and future cohabitation, Sabu could not have maintained a suit to recover back the property, as after the date of the sale-deed, there was illicit connection between Sabu and defendant No. 1, and the immoral object having been carried out, ho would have been prevented from recovering back the property, and according to the decision in the case of Ayerst v. Jenkins (1873) L.R. 16 Eq. 275 his legal representative would also be barred. It is somewhat difficult to hold that the plaintiff, the adopted son, is in pari delicto with defendant No. 1, the mistress of Sabu. In this connection I would refer to the doubt expressed by Sir Lawrence Jenkins in the case of Sidlingappa v. Hirasa I.L.R. (1907) Bom. 405: Bom L.R. 512 as follows (p. 412):-

Though we have dealt with the case as if both parties to this litigation had been equally culpable, it is to be noticed that it was the plaintiff's father and not the plaintiff, who joined the defendant in the fraud, and it is a question whether it can be said that the plaintiff and the defendant are in part delicto (Mathew v. Hanbury (1690) 2 Ves. 187 Muckleston v. Brown (1801) 6 Ves. 52

31. Assuming that the estoppel as laid down in the case of Ayerst v. Jenkins equally applies to the plaintiff, the adopted son, the plaintiff would be prevented from recovering the properties conveyed in the saledeed on the ground that the immoral object had been carried out by Sabu after the date of the sale-deed,

32. There is also another objection to the plaintiff's claim with regard to the properties comprised in the sale-deed, that the suit is barred by limitation. Defendant No. 1 has been in adverse possession for more than twelve years of the five properties comprised in the sale-deed. The finding of the lower Court was attacked in appeal on behalf of the plaintiff, but I agree with the view of the lower Court that the khata of the properties was transferred to the name of defendant No. 1 in 1904 or 1905, and the possession of the defendant has all along been adverse. The plaintiff's claim, therefore, with regard to the properties comprised in the sale-deed must fail.

33. With regard to the deed of gift of 1917, a deed of gift does not require any consideration. According to Section 122 of the Transfer of Property Act, a gift is a transfer made voluntarily and without consideration. The question is whether the object is immoral or unlawful within the meaning of Section 23 of the Indian Contract Act. In the present case I think that the deed of gift was passed with the motive of recompensing defendant No. 1 for past cohabitation and with the object of maintaining the immoral relation with defendant No. 1 in the future. The object, in my opinion, is something which is to be aimed at contemporaneously or in future as being some purpose or design for which a transfer is made. The object means the end to which effort is directed or the thing aimed at, that which one endeavours to attain or carry out. In the present case there was the immoral object so far as the future cohabitation with defendant No. 1 was contemplated by Sabu. But it appears from the evidence that Sabu was then ailing and though he might have hoped that he would recover, he died soon afterwards. The past cohabitation may be a motive for the gift, but, in my opinion, cannot be said to be an object which implies something aimed at simultaneously or in the future. Past cohabitation would be consideration for an agreement under Section 2(d) of the Indian Contract Act but is not good consideration for a transfer of property. A gift does not require consideration. It is difficult to hold that past cohabitation can be an object of a gift. Future cohabitation can be considered to be an object of the gift. So far as the object as regards the maintenance of future immoral relations was concerned, I think in the present case Sabu did not carry out the immoral object as he was incapable of carrying it out owing to his illness and died soon afterwards. Sabu therefore could have maintained a suit to recover the properties comprised in the deed of gift. The deed of gift was invalid under Section 6(h) of the Transfer of property Act, and the principle of equity enunciated in the decision in the case of Ayerst v. Jenkins would not have come in his way as the immoral object was not carried out. He could, therefore, have maintained a suit for recovery of the properties comprised in the deed of gift. If this view is correct, the plaintiff, as his adopted son, is entitled to recover the properties.

34. The case of Ram Sarup v. Bela I.L.R. (1883) All. 313 is distinguishable on its special facts as the gift in that case was made to the mistress and her children, and it was difficult to distinguish the gift to the woman from the gift to the children and the gift to the woman was considered to rest on the valid and moral consideration on which it was stated to rest at the time. It was held by the Judicial Committee that the gift was unconditional and even if it was otherwise, the gift to which an immoral condition was attached remained a good gift, while the condition was void. In the lower Court an attempt was made by the plaintiff to impeach the deed of gift on the ground of undue influence. It appears that on that day Sabu passed a sale-deed, Exhibit 66, in favour of one Shidappa. I agree with the finding of the lower Court that defendant No. 1 did not dominate the will of Sabu, and that the deed of gift was not induced by undue influence.

35. With regard to survey number 181 in the possession of defendant No. 2 and survey number 336 in the possession of defendants Nos. 3 and 4,1 agree with the finding of the lower Court that defendant No. 2 improved the land in his possession after an expenditure of Rs. 1,000, and defendants Nos. 3 and 4 also improved certain portions of survey number 336 after an expenditure of Rs. 400 each. The evidence in the case supports the finding of the lower Court on this point. I think, therefore, that the view of the lower Court that the plaintiff is entitled to get back the properties comprised in the deed of gift which are in the possession of defendant No. 1 is correct. The view of the lower Court that the plaintiff is entitled to recover possession of survey number 181 from defendant No. 2 on payment of Rs. 1,000 and survey number 336/1 and survey number 336/2 from defendants Nos. 3 and 4 on payment of Rs. 800 is also correct in the circumstances of this case. The result, therefore, is that both the appeals are dismissed with costs and the cross-objeetions are dismissed with costs.

Barlee, J.

36. I agree that both appeals must be dismissed, but I roach this conclusion by a different path and shall, therefore, give my reasons as shortly as possible.

37. The questions to be answered in these appeals are:

(1) Whether the deceased Sabu transferred land to the defendant Sabava in 1903, when he executed a sale-deed in her favour; and in 1917, when he and his wife executed a deed of gift. This is important because of the plea that the documents were never acted on, for, if that were the case, there would be no effective defence of limitation,

(2) If it be found that the lands were in fact transferred to Sabava, we have to decide whether they were transferred for consideration, and what it was in either case.

(3) Whether the consideration, if any, was unlawful.

(4) Whether the transferor, had he lived, would have been estopped from pleading that the consideration was unlawful, and whether his representative in interest is in no better case.

38. The history of these people is as follows : Sabu bin Siddappa owned the suit lands at Arkeri. He died in 1917, leaving a widow, defendant No. 6, who has adopted the plaintiff. It is alleged that the defendant No. 1, Sabava, was his concubine and had great influence over him and that she prevailed on him to convey the suit lands to her. The first conveyance was in the form of a sale for Rs. 800, and the second in the form of a gift for love and affection, but the real consideration, it is alleged, was past and future concubinage. The learned Subordinate Judge has held on the evidence that at the time of both transactions Sabava was living with Sabu as his concubine and that the consideration for both was unlawful. But he has rejected the plaintiff's claim to the lands covered by the document of 1904 on the score of limitation.

39. I need not deal at length with the evidence. The gift deed recites that Sabu and his wife were childless and that Sabava had been with them since her childhood, and implies that they looked on her as a daughter. But this recital is obviously false. Sabava was adopted by Sabu's parents who got her married, and she was not brought up by Sabu and his wife. She was considerably older than the latter. It is admitted that two years after her marriage she came to Arkeri and she has lived there ever since. She has deposed that she lived there with her husband Yellappa until his death in or about 1905, and that he and not she herself was the real purchaser of the lands conveyed to her in 1904. But, as the learned Subordinate Judge has shown, he was probably a poor man, and it is improbable that there was any cash consideration for the sale-deed. There is documentary evidence which points to the improbability of her story. It ia Exhibit 74, a copy of an entry in the register of deaths of the year 1904, which records the death of one Bhima whose mother's name was Sabava, aged eleven years. This Sabava was the defendant No. 1 in this case, and it is a strong argument in favour of the plaintiff that her name and not her husband's was entered. The village officers according to rules ought to have entered the name of the father of the boy, and the omission to do so suggests that Yellappa was not known to be the father and much weakens the effect of the defence evidence. Had Yellappa come to Arkeri and lived there as a family man for eighteen years, he and his family would have been well known, and it is very hard to understand why the village officers should not have entered his name as that of the father of the deceased boy. According to Sabava he was then alive. It is not as if Arkeri were a city or a large town. But even in a town the Government officer, whose duty it is to record deaths, is likely to inquire the father's name of a deceased person. It is obvious, then, that Yellappa was not known in Arkeri in 1904, and that no one knew the father's name of the boy, or that it was omitted because Sabu was supposed to be the father.

40. We have heard a long argument on this question but I need not go further into it. These two facts point to the truth of the plaintiff's evidence-Sabava was a poor woman and is not likely to have had Rs. 800 for the purchase of land-and her husband was not known at Arkeri. It is a reasonable inference that she lived with Sabu and that her duties were not menial as she has tried to make out. A man does not give land to a mere maid servant. I have no doubt that in 1904 she was able to induce Sabu to give her land owing to the influence she had over him as his concubine. This is all I have to say on this point. The learned Subordinate Judge has discussed the evidence at length and I see no reason for refusing to accept, his conclusion. There is definite evidence that the villagers looked on Sabava as Sabu's concubine and they were probably right.

41. The learned Subordinate Judge has held that inasmuch as Sabava was in adverse possession of the lands conveyed in 1904 for twenty-six years before suit, the plaintiff cannot now claim them (Article 144). On his behalf it is argued that Sabu was all along in possession. But, as the learned Subordinate Judge has said, the indicia of possession were with Sabava, as the lands were entered in her name in the Record of Rights; and I must add that the present argument is inconsistent with the case which has been pleaded that Sabava had great influence with Sabu and used it to feather her nest. If in 1904 she persuaded him to convey lands to her it is probable that she took care to enter on possession. It is not the plaintiff's case that the transfer was nominal to conceal Sabu's interest. He was not pressed by creditors and had no apparent object in preparing a false document. It may be that ho gave her the sale-deed to enable her to make a claim after his death, and still remained in effective possession ; but it was for the plaintiff to establish this fact, if true, and he has not done so.

42. The principal contention in this Court has reference to the document of 1917, which purported to be a deed of gift. It has been faintly argued that concubinage is not an unlawful consideration inasmuch as it is recognised by Hindu law. But we cannot accept this view, I do not press the point that the concubinage had probably at one time been adulterous, for Sabava's husband died at least twelve years before the conveyance. But I know of no rule of Hindu law which legalizes concubinage. The best that can be said is that Hindu law entitles a concubine in certain circumstances to maintenance out of the estate of her paramour, and that is a very different thing. As pointed out by Macleod C.J. the maintenance of a discarded concubine is not an unlawful object, but it does not follow that concubinage is not immoral : Husseinali v. Dinbai : AIR1924Bom135 . The argument seriously pressed on us is that Section 6(h) of the Transfer of Property Act has no application to gifts inasmuch as a gift is a transfer of property without consideration. Since a donee has not to prove consideration it does not matter; it is said, whether the motive of the gift be good or bad.

43. The first part of this argument can be answered in a few words, The Transfer of Property Act mentions four or five classes of conveyances, but obviously the list is not complete for there is no mention of the very usual form of conveyance of which the consideration is not cash but some sort of service, e. g., a conveyance made in discharge of a liability to provide maintenance which was the subject-matter of the full bench case, Madam Pillai v. Badrakali Ammal : AIR1922Mad311 or a conveyance made in discharge of a contract. It follows then that we are not bound to decide that the conveyance in suit was a gift because it is called a gift. In fact this argument begs the question.

44. The next question is more difficult to answer. And here my path diverges from that taken by my learned brother. If there was consideration in our case, it was past or future service. If it was future service the way is clear, for future cohabitation was beyond doubt an immoral object. But I find myself unable to accept the view that the parties were contemplating future illicit intercourse. It is true that they did not contemplate separation ; but future concubinage is not the same as future residence, and, since Sabu was old or elderly and admittedly very ill and Sabava was forty-seven years of age, I think they were making arrangements for the time when she would be left alone. That was not an unlawful object. I am, therefore, compelled to examine the evidence with a view to determine whether, as alleged by the plaintiff, past intercourse was the consideration of the agreement or merely the motive.

45. The real question at issue is then one of fact. What I have to discover is whether the past concubinage was merely the motive for the gift or whether a promise was made by Sabu to Sabava in return for it so as to constitute an agreement. If there was an agreement it would obviously have been unenforceable; and, since Section 23 of the Indian Contract Act has been incorporated in the Transfer of Property Act, the conveyance made in discharge of the agreement was invalid. If, on the other hand, there was no promise which linked the past concubinage with the conveyance, the latter is unimpeachable.

46. On this question whether there was an agreement between Sabu and Sabava we have the direct evidence of the writer Raghavendra, a Brahmin of Bijapur. He has deposed that he was taken to a house in which Sabu was lying ill and Sabu said to him 'I am troubled by illness, also by Sabava, write the deed as told by her.' (page 17). The learned Subordinate Judge has remarked that this witness was utterly unworthy of belief but has not given any particular reason for this sweeping statement, except that he had stated that the appellation gunijan is given only to dancing girls and prostitutes. This seems to be a mistake. I can only find a statement by the witness that it means mistress, which is admitted to be true by defence witness Keshava. Further on the learned Subordinate Judge says 'The man is a professional writer for the last twenty years. He has been fined in a theft case though long ago. Even he does not say defendant No. 6 was not then conscious.' It appears, then, that the witness wrote the document as an ordinary business transaction, and, when called by the plaintiff, did not attempt to support his exaggerated story ; and it is not obvious what were the reasons for the learned Subordinate Judge's view of his evidence. At any rate, none have been given.

47. This witness then proves that Sabava was the moving spirit in the transaction and that is easy to believe, and I see no reason to disbelieve him when he says that Sabu told him so. It is safe, in my opinion, to hold that Sabu gave her a promise of the land because she had been his mistress. If this be correct there was an agreement, but it was unenforceable and the conveyance in discharge of that agreement is void.

48. A number of casas have been cited as authorities on the question of the effect of a conveyance in consideration of concubinage, but unfortunately there is but one in which the facts were similar to those of this case, and in that case the decision was on another ground and we find a mere expression of opinion: Kisandas v. Dhondu (1919) 22 Bom, L.R. 762 The only other case of this Court, Husseinali v. Dinbai : AIR1924Bom135 , was one of contract and not of conveyance. In Thasi Muthukannu v. Shunmugavelu Pillai I.L.R. (1905) Mad. 413 a mortgage was assigned with the object of future illicit intercourse ; and in Deivanayaga Padayachi v. Muthu Reddi I.L.R. (1920) Mad. 329 there was a settlement of land with the object of or in consideration of a promise of future illicit intercourse.

49. In Brahmayya Lingam v. Mallamma : AIR1924Mad849 there was a conveyance in consideration of past and future cohabitation. Lastly, there are two Allahabad cases: Dhiraj Kuar v. Bikramajit Singh I.L.R. (1881) All. 787 and Lachmi Narian v. Wilayti Begam I.L.R. (1879) All. 433 on appeaL, I.L.R. (1883) All. 313 . But these were decided prior to the Transfer of Property Act and cannot help us in intrepreting its provisions.

50. The last question is that of estoppel. Reliance is placed on the English case of Ayerst v. Jenkins (1873) L.R. 16 Eq. 275 for the rule that an agreement for an unlawful object is irrevocable if the unlawful object be fulfilled. This principle has been adopted by this Court in connection with conveyances in fraud of creditors: Sidlingappa v. Hirasa I.L.R. (1907) Bom. 405 It rests on the ground of estoppel (see Deivanayaga Padayachi v. Muthu Reddi I.L.R. (1920) mAD. 329 But in this case, if the facts are as found by the trying Judge, I cannot see that there is any reason for the application of that principle. Sabava did not allow illicit intercourse on the strength of a promise of these lands; or, if she did, as my learned brother has held, the unlawful purpose was not carried out since it is admitted that Sabu never recovered from his illness.

51. My conclusion, then, is that the older transaction is unimpeachable because of adverse possession, but the so-called gift of 1917 was void and can be set aside or ignored.

52. I agree that both appeals and cross-objections must be dismissed with costs.


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