1. These are three appeals arising out of three separatt suits. A. S. No. 89 of 1957 is from the judgment and decree passed in O. S. No. 12 of 1954 whereby the suit of the plaintiffs for delivery of suit A and B schedule properties with profits thereon has been dismissed against the defendant with costs. A. S. No, 558 of 1957 is from the judgment and decree passed in O. S. No. 62 of 1954 brought by the defendant (in O. S. No. 12 of 1954) for recovery or Rs. 2,300/- towards past profits from 1949 to 1953 at the suit schedule properties which suit also has been dismissed with costs. A. S. No. 157 of 1957 is from the judgment and decree in O. S. No. 63 of 1954 brought by the defendant (in O. S. No. 12 of 1954) for general parti-tion of the joint family properties of plaintiffs 1 to 4 and their father into five equal shares and allotment of one such share to Venkatacharyulu Ayyavarlu and his legal representative, defendant No. 5, directing, at the same time, that in such partition, the properties purchased by the plaintiff from late Venkaiacharyulu so far as possible be allotted to the share of late Venkatacharyulu and plaintiff be permitted to retain the same in her possession. This suit has however been decreed by the learned Subordinate Judge, Narsapur. Plaintiffs in O. S. No. 12 of 1954 who are the defendants in O. S. Nos. 62 and 63 of 1954 are the appellants in A. S. No. 157 of 1957 and A. S. No. 89 of 1957 while defendant in O. S. No. 12 of 1954 who is the plaintiff in O. S. Nos. 62 and 63 of 1954 is the Appellant in A. S. No. 558 of 1957. The plaintiff in O. S. No. 63 of 1954 has further filed cross-objections as the (costs have not been awarded to her even though the decree was passed in her favour.
2. The facts in all these cases are mostly common ana may be briefly stated : Srimat Srirangam Nallanichakravar-tula Venkatacharyulu (hereinafter referred to as venkata-tharyulu) was the father of plaintiffs 1 to 4 and the husband of 5th plaintiff in O. S. No. 12 of 1954. They were undivided members of the joint Hindu family which possess- ed vast properties. The father, Venkatacharyulu, who was the manager and karta of the family carnally knew Dwarapudi Nagaratnamba, the defendant in O. S. No. 12 of 1954 ana the plaintiff in O. S. Nos. 52 and 63 of 1954 for the first time in 1945 and ever since kept her as his concublna till he breathed his last on 22-2-1949. During this period, on 15-4-1946 he executed two registered sale deeds in her favour transferring the plaint A and B schedule items in O. S. No. 12 of 1954. The recitals in these deeds show that the alienations were supported by cash consideration. The plaint A schedule property consisted of Ac. 2-00 of land covered by B. S. No. 141/2 situated in pennada agraharam. B schedule property consists of a house site, 380 sq. yards in extent on which at the time of sale there was only a thatched shed but later on, a terraced house sprang up in course of time and Ihe defendant was in possession thereof.
The case of Nagaratnamba is that she came Into possession of the alienated properties Immediately after the sale deeds. Ever since the deed, she had been enjoying the plaint A schedule lands leasing them out to the tenants, collecting rents and paying land revenue to the Government.
Her further case is that on B schedule property, she her-self had constructed a terraced house alter dismantling the old thatched shed at an outlay of Rs. 10,000/-. After the death of Venkatacharyulu, his sons trespassed on the A schedule lands on 6-5-1949. Nagaratnamba moved the police and eventually brought the suit under Section 9 of the Specific Relief Act and got bach possession on 30-12-1953 under a decree obtained by her in that case. As the sons of the deceased were in possession of the said lands from 6-5-1949 to 30-12-1953 she brought her suit for recovery of Rs. 2,300/- towards past profits from 1949 to 1953 and this is O. S. No. 62 of 1954. Before she brought this suit, the sons of Venkatacharyulu and their mother brought their action for recovery of plaint A and B schedule items together with Rs. 320/- by way of past profits for the period 1946 to 1948 of the plaint A schedule land and Rs. 150/- towards profits from the B schedule property and also for future profits. The sens questioned the alienations of their father on the ground that they were neither supported by consideration nor were they for any legal necessity or family benefit. According to them, the recitals in the sale deeds that they are supported by consideration are wholly untrue, for the defendant had neither the means to pay nor did she in fact pay the consideration. The 1st plaintiff, the eldest son had already become a major by the time of the sale transaction but he was shown in the deed as a minor as he would not have joined in the execution of the sale deeds. The contention of the plaintiffs is that both the documents are mere gift deeds under which the joint family properties were conveyed to the defendants. They are void in law and inasmuch as they were executed for immoral purposes of the father, they cannot bind the sons. As a matter of fact, according to them, the father, himself through his lawyer sent a notice dated 16-7-1946 by telegram to the effect that the sale deeds were not supported by consideration, that they were executed for immoral purposes and that the vendor therefore repudiates them and treats them as cancelled, but later on, enticed away by her, he disowned all that he had said in the telegram.
Their further case is that there was an old terraced house opposite to the plaint schedule site which belonged to the joint family of plaintiffs 1 to 4. It was dismantled and with the materials thereof their father constructed the terraced house in place of the thatched shed and Kept the defendant in it. After the 1st plaintiff came to know of the deeds, he raised a strong demur. He did not like to remain joint with his father. He at once issued a registered notice to him for partitioning the family property. The father retaliated by sending a notice that he was ready to partition but would set apart and deliver only the 1st plaintiff's share as the latter had no right to demand partition of the share of plaintiffs 2 to 4. When the matters came to such a pass, some mediators interested in the plaintiff's family intervened and persuaded the 1st plaintiff and his father to live amicably with the result that they abandoned the idea of partition and continued to live undivided. Plaintiffs further contend that notwithstanding the execution of sale deeds, the family of the plaintiffs continued to be in possession of the plaint schedule properties till they were dispossessed under a decree obtained by her. As the sale deeds are void in law and the defendant has therefore no right to remain in possssion of the property, plaintiffs brought this suit for recovery of possession of plaint A and B schedule items. They have also claimed profits from the date of dispossession.
3. The defendant resisted this claim on the ground that the sales were true, were supported by consideration and were for legal necessity, that she was a permanent concubine of the father of the plaintiffs, that she had with her 60 sovereigns of gold jewellery and that VenKatacharyulu took those jewels, sold them away and utilised the sale proceeds for discharging the family debts and for repairing the family lands. When the defendant demanded bach the money, Venkatacharyulu promised to sell away the plaint B schedule house site in partial discharge of the debt and pay the balance in cash. As he could not raise the balance, he agreed to sell away both A and B schedule properties. Accordingly, he executed two registered sale deeds on 15-4-1946. He delivered the B schedule site along with the thatched shed to the defendant and also the A schedule property. The sale deeds are binding not only on the father but all the members of the family. It is not correct to say that the consideration was inadequate as the B schedule site was purchased by Venkatacharyulu in the year 1944 only for Rs. 200/- and the A schedule property was not worth more than Rs. 1000/- per acre. No doubt a telegram purporting to have been issued by the father of the plaintiffs was received by the defendant but it was not accompanied by any registered notice as mentioned in the telegram and the telegram itself was not true, for Venkatacharyulu voluntarily executed a letter in favour of the defendant on 16-8-1946 disowning the telegram and admitting that the contents were not true. The defendant categorically denied that the sale deeds were executed as consideration for future cohabitation and averred that even if they be deemed to have been executed for the past cohabitation, that is sufficient consideration for the sale and as such they cannot be construed as gift deeds as alleged.
4. The defendant denied the allegation that the plaint schedule properties were in possession of the family after the sale deed. She categorically stated that she leased out the lands to tenants in various years till she was dispossessed. She further stated that the material of the old terraced house was not utilised for the construction work on the B schedule site. The thatched cottage was removed and a new construction was raised by the defendant herself with the help of the moneys borrowed from others. She admitted that a notice was sent by the 1st plaintiff for partition of the family properties and the plaintiff's father sent a reply on 20-8-1947 stating that he was prepared for partition and delivering the share to plaintiffs 1 to 4. The story of re-union was categorically denied by her. She further averred that after the exchange of registered notices, the family properties were partitioned by metes and bounds and the plaint A and B schedule properties and some other properties were allotted to Venkata-charyulu's share and Venkatacharyulu mortgaged and leased out these lands to others. On this basis also, the defendant contended, that the claim of the plaintiffs is untenable.
5. The defendant did not rest content with the pleas so taken in O. S. No. 12 of 1954. She brought a suit O. S. No. 63 of 1954 for general partition as an alienee of the share of the father of defendants 1 to 4. She referred to the partition alleged to have taken place between the father and sons as a result of which the properties sold in her favour were included in the property that fell to the share of the alienor in the family division or the joint family property. But she stated that since no documentary evidence is available with her to prove that the partition between the late Venkatacharyulu and his sonswas true, final, complete and binding, she, ignoring this partition, has filed this suit. In this suit, the tamily properties have been shown in three schedules A, B and C and the properties sold to the plaintiff in D schedule. She requested that the properties be divided into five equal shares and in one such share which must fall to the share of Venkatacharyulu and now to his widow as his legal representative may be included, the D schedule properties ana the plaintiff's equities may thus be worked out in this suit. She has also impleaded, at the inslance of defendants 1 to 5, other defendants who are the alienees of various properties.
6. The defence raised by defendants 1 to 5 is substantially the same as contained in their plaint in O. S. No. 12 of 1954 and they have further stated that the suit is bad for non-joinder of alienees of some of the joint family properties and also for parlial partition. The defence taken by the other defendants is not material for purposes of these appeals.
7. On the basis of the pleadings in these three cases, several issues were raised and having regard to the fact that all the suits were closely connected, the evidence, with the common consent of both parties, was recorded in O. S. No. 63 of 1954 to be read as evidence in the other two suits as well. The learned Subordinate Judge, after due enquiry, came to the conclusion that the sale was neither for legal necessity nor for family benefit, that the averments in that behalf have not been substantiated, that the price for which Exs. A-l and A-2 purport to have been executed cannot be said to be inadequate having regard to the market value of the properties mentioned therein, that the story that the jewels were handed over to Venkatacharyulu and he sold them away and utilised the sale proceeds for the purposes mentioned, viz., for discharging family debts and repairing family lands, is also not true. But it is however clear that Nagaratnamba was a concubine of Venkatacharyulu ever since 1945 and was in his exclusive keeping from that time till his death and that therefore it may be inferred that both Exs. A-l and A-2 were executed in consideration of the past cohabitation.
The learned Subordinate Judge further held that these documents are not mere gift deeds inasmuch as they are supported by consideration in the shape of past cohabitation. As regards possession of these properties the learned Subordinate Judge came to the conclusion that the possession of A schedule property was given immediately after the sale deed and that of B schedule property just a few days thereafter, that Nagaratnamba was in possession of A schedule property through her tenants before she was dispossessed and is put hack in possession by virtue of the decree of the Civil Court. As regards the construction on B schedule site, the learned Subordinate Judge came to the conclusion that Ventiatacharyulu had built the house in part after sale and Nagaratnamba improved the same by plastering it inside, by constructing compound wall, steps, a room in the upstairs and a kitchen and that she must have spent fairly huge amounts for these constructions by borrowing moneys from others. The Improvements made were substantial.
On the question of partition between the father ana the sons, the learned Subordinate Judge found that there was division of status by reason of the indication of his intention through Ex. B-10 by the eldest son of Venkatacharyulu and that it was not open to the coparcener to withdraw the intention so as to restore the family to Itsoriginal joint status, that there was no proof that there was a reunion and there could not possibly be any re-union when there were minors. He also held that ihere was seme evidence that the family properties were partitioned but the partition deed could not be executed due to the objection of the first son. In view of these findings, he concluded thus;
'So, even though the documents may be void as against the sons and do not bind their share, still in view of the fact that there was a partition and allotment of the shares between the father and the sons, I think that the suit properties can be allotted to the share of the father in the general partition sought for in O. S. No. 63 of 1954.'
On this basis, he decreed O. S. No. 63 of 1954 direct-Ing that plaint A, B and C schedule properties should be partitioned into five equal shares, that in the partition the plaint D schedule items should be allotted to the share of late Venkatacharyulu and that the other properties of late Venkatacharyulu should be allotted to the share of the 5th defendant. The other alinees are entitled to have the properties alienated to them allotted tn the shares of the alienors. To this extent the suit of Nagaratnamba was decreed without costs and consequently the suit of the plaintiffs was dismissed witn costs. The further claim of Nagaratnamba for past profits to the extent it was within time which is the subject-matter of O. S. No. 62 of 1954 was negatived on the ground that an alienee from a coparcener does not become a tenant-in-common with the other coparceners and Is not entitled to joint possession or get mesne profits from them and that her right to possession would date back only from the date when a specific allotment is made in her favour. Thus O. S. No. 62 of 1954 was dismissed with costs. It is against these orders the present appeals are preferred.
8. One of the important questions which has to be answered in all the suits and consequently in these appeals is, whether the alienations under Exs. A-1 and A-2 effected by the father are binding on the sons. At the time of alienation it was mentioned in the sale deeds that all the sons of the vendor were minors. Hut that is not true as one of the sons had already attained majority which fact has been satisfactorily established by evidence. The fact however remains that the lather had made these alienations as manager of the Hindu join family. In a Hindu joint family, the father naturally ana in the case of minors sons, necessarily, is the manager of the joint Hindu family. As such, he has powers to alienate joint family property for value so as to bind the interests of both the adult and minor coparceners provided only that the alienation is made for legal necessity or for the benefit of the estate.
The case of the plaintiff, Nagaratnamba, is that the sale became necessary as the family lands needed repairs. Besides, there were several sundry debts to be discharged. In fact, according to her, with the help of the sale proceeds, Venkatacharyulu, the father, had discharged sundry debts and repaired the family lands. She is, however, at a loss to state whal actually were the debts which were so discharged and which of the lands were repaired. It may be that Venkatacharyulu was contracting debts from time to time notwithstanding the fact that he had sufficient landed property capable of yielding decent income. In fact, It is obvious from Ex. B-17 that he executed a sale deed in favour of 10thdefendant for a sum of Rs. 7,000/-. It appears further that he had executed another sale deed on 19-12-1947 in payment of debts aggregating to Rs. 13,000/-- But whether at the time when the disputed sale deeds were executed, there were any debts due has not been shown or vouchsafed. Barring the statement of P. W, 1 which is rather vague, there is not an iota of evidenca even to suggest that in fact there were certain debts payable which necessitated the sale transactions of Exs. A-1 and A-2. When the sons call in question the alienations made by their father, it is always the duty of the purchaser to prove either that there was legal necessity in fact or that she had made proper and bona fide enquiry and did all that was reasonable to satisfy as to the existence of such necessity. Unless the sale is for legal necessity or benefit of the family, it shall not bind the other members of the family. When ihere are minors, the father cannot, at any rate, neglect his duty to act as a prudent guardian or trustee of the property. Needless further to say that even in cases of necessity, not only the sale should be for value but also the consideration should be adequate. It is contended on behalf of the plaintiffs that there was no necessity for sale, that the transactions were gratuitous and the father was lured into these transactions by the wiles of the plaintiff who was his concubine and had dominated his will, that though the ostensible consideration as shown in the deeds was cash, the real consideration was illegal being presumably past and future cohabitation. Further, the sales were not for value. Even the consideration shewn in the documents besides Being untrue, is quite inadequate. At the most, they are transactions of gift and it was not competent for the father to make gifts under Hindu law.
9-11. (After discussion of evidence, His Lordship proceeded as follows:)
12. Thus, the story that P. W. 1 had paid consideration either cash or in the shape of jewellery is unacceptable and that Venkatacharyulu, in view of his intimacy and carnal attachment with the plaintiff had executed these documents in her favour to benefit her is obvious from the record. He not only executed the documents and handed them over to her but mutated the property in her name. The result was that she was in enjoyment of the same during his life time and even thereafter. The deeds executed in her favour purported to be sale deeds. The sale under Section 54 of the Transfer o! Property Act must be for price. The consideration for this transaction is not cash. It is presumably past cohabitation. It cannot therefore be deemed to be a price within the meaning of Section 54 of the Transfer of Property Act. Thus the documents though ostensible sale deeds are in reality deeds of gift within the meaning of Section 122 of the Transfer of Property Act, past cohabitation being Ihe motive for making these gifts. As gift deeds, they are not open to question so far as the formalities are concerned. These conveyances having been effected by registered instruments duly signed by the donor and attested by at least two witnesses, the formalities prescribed by Section 123 of the Transfer of Property Act are duly complied with. That a document which Is ostensibly a sale deed may, having regard to the evidence produced with regard to consideration, be treated as gift deed admits of little difficulty.
In R. Runganatham Chetty v. P. Ramaswami Chetti, ILR 27 Mad 162, a conveyance purported to have beenmade for a value of Rs. 11,000/- and which was in fact only to the extent of Rs. 1,000/- i.e., in part for valuable consideration, was regarded as a gift to the extent of Rs. 10,000/-. It is unnecessary to refer to fur-ther authorities. But it cannot be gainsaid that in order to be effective as a gift, it is essential that Ihe donor should te competent to make such gift. That could be possible only if it was his properly. The property in question admittedly is joint family property. A Hindu lather or a managing member has indeed power to make a gift within reasonable limits of ancestral immovable property for pious purposes but the gift in question is neither for pious purpose nor, having regard to the total extent of the family property, can it be said to be a gift within reasonable limits. Such gifts being beyond the competence of a father or manager of a joint Hindu family, are wholly invalid. They can neither bind the maker nor the family, for it is not competent for an individual member of a Hindu family to alienate by way of gift his undivided share or any portion thereof and such an alienation, if made, is void in toto. This principle cannot be evaded by the donor by professing to make an alienation for value.
In Lilu Ram v. Ram Piyari, AIR 1352 Punj 293 the question arose whether a member of a joint Hindu family can give away the property of the joint Hindu family to his mistress in lieu of his past cohabitation. Following the view taken in Ram Prasad Singh v. Chhota Munwan, ILR 12 Luck 469 : (AIR 1937 Oudh 29), the learned Judge held that the sift was invalid. As observed in Peramanayakam Pillai v. Sivaraman, : AIR1952Mad419 (FB)) it an alienation is made whether by a father or manager or by any other coparcener though purporting to be for value is in fact a device to make a gift and not a transfer for consideration, the alienatron would not defeat the right of the other coparceners to take the property by survivorship in case of the death of the alienor. It follows therefore that by reason of these gifts no valid interest could at all pass in favour of the donee merely Dy reason of registration and delivery of possession. But it has been argued that past cohabilation is not a motive for making a gift of the property but is a consideration for the transfer which should bind the sons or at least bind the undivided interest of the father in the properiy. As already observed, a transfer in order to bind the individual members of the family must be for value besides being for family necessity or benefit. Whatever may be said in relation to the father, certainly, past cohabitation can have no value from the family point of view. It is true that the Madras, Patna and Allahabad High Courts have been consistently taking the view that past coha-habitation is good consideration, though the same cannot be said about future cohabitation.
In Lakshmi Narayana v. Subhadri Ammal, 13 Mad LJ 7 where the pronote admittedly executed by the defendant was proved to be executed not for cash and jewellery alleged to have been given by the plaintiff, a concubine of the defendant, at some time during the continuance of cohabitation, it was hold that though the plaintiff did not prove her case that she advanced the cash and the jewels, it must be presumed that it was for past cohabitation which might have continued even after the execution of the promissory note, that it was good consideration for the promissory note and that no presumption could be drawn that it was executed for future cohabitation. This was followed in NamberumalChetty v. Veeraperumal Pillai, 59 Mad LJ 596 at p. 602: (AIR 1930 Mad 956 at p. 960) where reference was made to English law wliich did not countenance past cohabitation as any consideration at all. it was held therein that according to law in India as there is not mug immoral in remunerating a woman who has rendered services, promise to pay for such past services is a good consideration. Here also the suit was cased on a promissory note and it was alleged that the promissory note was for immoral consideration.
The same view was laden in Kothandapani Mudaliar v. Dhanammal, 1943-I Mad LJ 56: (AIR 1943 Mad 253), wherein it was observed that the weight of authority in Madras is in favour of the view that past illicit cohabitation may validly support a promise to pay a sum of money. In this case too as in the abovementioned cases the suit was based upon a promissory note executed in favour of a woman in consideration of past illicit intercourse. The intercourse complained of however was not adulterous. The view taken in Godfrey v. Mt. Parbati, AIR 1938 Pat 502: iLR 17 Pat 308 also IS in consonance with the established rule of fhe Madras High Court. There also it was held that past cohabitation is good consideration. It was furiher held that though a contract to enter into the relationship of protector and mistress is undoubtedly immoral, unenforceable and void, yet a contract to compensate a mistress for what she has lost on account of past association and so long as that loss shall continue, cannot be regarded as immoral. This case also did not involve the question of the transfer of immovable property. But Mt. Balo v. Mt. parbati, AIR 1940 All 385 related to the assignment of mortgage rights to Mt. Parvati, a mistress of Lachman Das wno brought a suit on the basis of the mortgage bond. The mortgagor was one Mt. Munno about whom it was alleged that she came in possession of the properly as a widow, with a limited estate of a Hindu woman. But this contention was negatived. Then the only question was, whether the plaintiff could, on the oasis of assignment which was for immoral consideration, enforce the mortgage transaction. The learned Judges while upholding the decree in favour of the plaintiff referred with approval to the following observations in Mt. Mahatabun-nissa v. Rifaqat Ullah, AIR 1925 All 474:
'When the agreement is that the parties are to live in adulterous cohabitation in future the contract is obviously illegal, but if in order to compensate the woman for the past Illicit connection, the offending party gave her some property. I would not be prepared to say that the consideration for it is illegal. The offence had already been committed.'
13. The Bombay High Court, however, has ditterec from the view fallen by the High Courts of Madras, Patna and Allahabad. It would be sufficient if we refer to two of the eases, Sabava Yellappa v, Yamanappa Sabu, All 1933 Bom 209, and Istak Kamu v. Ranchod Zhipru', All 1947 Bom 198. In the first mentioned case, the defen-dant No. 1 was the concubine for many years, of the adop-live father of the plaintiff. In 1903 the latter had sold certain lands and put her in possession. In 1917 when he was dangerously ill, he gifted away some more land to her and died. His widow adopted the plaintiff in. 1919 Plaintiff brought a suit for possession in 1927 against defendant No. 1. It was found that the sale deed which was ostensibly for cash, consideration was in fact executed for past and future cohabitation. Similar was fhe case ofgift which was found to be executed for past and future cohabitation. Patkar J., held that the transfer was void under Section 6(h) of the Transfer of Property Act read with Section 23 of the Contract Act, the consideration being immoral. He was of the view that past cohabitation would no doubt be consideration under Section 2(d) of the Contract Act for an agreement but immoral as it was at the inception being incapable of supporting an immediate promise to pay it cannot become innocent by passage of time. Therefore the past cohabitation is not a good consideration for the transfer of property. A gift however does not require consideration and past cohabitation cannot be the object of gift though that can be motive for effecting the gift. But if it is alsg for future cohabitation, it will be within the mischief of Section 6(h) of the Transfer of Property Act, the object being immoral.
In AIR 1947 Bom 198 four gift deeds which were made by one Chunilal in. favour of his mistress, a Moham-madan prostitute girl, were brought in question. It was contended therein that though they are shown as gifts they are really transfers having for their object or consideration past cohabitation and hence void under Section 6(h) of the T. P. Act read with Section 23 of the Contract Act. The 'learned Judges after discussion of the authorities observed :
'An agreement or transfer of property whose object of consideration is future illicit cohabitation is void. That a gift requires no consideration and past illicit cohabitation can be a motive of gift but not its object of consideration and does not render the gift void. That under Section 2(d) of the Contract Act past illicit cohabitation cad be the consideration for an agreement or transfer of property other than a gift and such an agreement or transfer is void and if such a void agreement precedes a gift and a gift is made in discharge of that agreement, then the gift also is void.'
Thus the view of the Bombay High Court does not accord with the view taken by the Allahabad High Court and is not consistent with the view of Madras High Court also. While all ths other High Courts are at one that a transfer in consideration of future illicit cohabitation is for an immoral consideration and is therefore void, there is a difference of opinion as to whether past cohabitation can be a valid consideration. All the casss of the Madras High Court referred to are the cases which do not deal with the transfer of property. Only the Allahabad case referred to is concerned with the transfer of property and that was with regard to the assignment of a mortgage deed. Transfer of property may be effected in several ways, subject to the provisions of the Transfer of Property Act and the Registration Act. It may be by way of sale, mortgage, exchange, gift and in diverse other ways. A sale under Section 54 of the Transfer of Property Act, is the transfer of ownership in exchange for a price paid or promised or part paid or part-promised. The question is, whether past cohabitation can be deemed to be such a price.
14. The term price is a familiar expression. It Includes money, whether payable in prasenti or in future. As has been observed by a Full Bench of the Madras High Court in Madam Pillai v. Badrakaii Ammal, ILR 45 Had 612 at p. 617 : (AIR 1922 Mad 311 at p. 313):
''Price' includes money only, for If the thing given in exchange for land consists of goods and not money, there is no sale but an exchange. A transfer not made in exchange for a money consideration, e.g., a transfer made in pursuance of a compromise of a family dispute.would not be a sale, and might be altogether outside the provisions of the Act.'
It may be noticed that the discussion with regard to the meaning of the word 'price' occurring in Section 54 arosa in connection with the question whether the transfer of land fay a husband to his wife to be enjoyed by her during her life-time in discharge of future maintenance may be made without writing. In that connection, the question of sale under Section 54 and exchange under Section 118 of the Transfer of Property Act came up incidentally for consideration and Kurnaraswami Sastri, J., at page 619 (of ILR Mad) : (at pp. 313-314 of AIR) observed:-
'I see nothing illegal in Hindu law for a husband to make provision for the future maintenance of his wife ..... Even assuming that the agreementto provide for future maintenance is invalid under a Hindu law, the transaction will not amount to a gift. It will be invalid not for want of writing and registraiion but because it is incompetent for the parties to enter into the transaction because of the personal law by which they are governed.'
It is however clear from the discussion that 'price' should necessarily mean money. In this view, past cohabitation cannot certainly be brought within the meaning of 'price' irsed in Section 54 so that the transaction covered by Exs. A-1 and A-2 which had been made in consideration of past cohabitation can (Sic not 1) be regarded as transactions of sale. As already observed, according to Dravida school of Mitakshara law, a coparcener may transfer for value but not by way of gift his own share in the joint family properly and the transfer then may be binding on that particular coparcener. The question is, whether this transaction is such a transfer for valire. Relying on Nanjun-daswami Chetty v. Kanagaraju Chetty, ILR 42 Mad 154 : (AIR 1919 Mad 500), it is contended that the transaction which does not come under Section 54 of the Transfer of Property Act may not necessarily be gift. It may be a settlement and a settlement in law is a transfer for value, It has never been the case of ths parties that VenXata-charyulu had made settlement of his property to Nagarat-namba for her maintenance or otherwise. The contention all through was that the transactions in question were sa!e transactions and even if it is true that they are for past cohabitation, they did not cease to be sales, for past cohabitation is a valuable consideration for purposes of sale. On the facts and circumstances of the case as alleged by the parties, the question of settlement would not arise. Even otherwise, in view of the Full Bench decision in ILR 45 Mad 612 : (AIR 1922 Mad 311), it is difficult to hoid that the transfers in question were for value. If the transfers are virtually gifts, the alienations would not defeat the rights of the coparceners to take the property by survivorship in case of the death of the alienor and the alienee cannot escape the consequences of an invalid transfer i.e., a gift of the joint family property. Judged thus, we are of the opinion that the transfer in question is not valid or binding so as to pass an indefeasible right in favour of the plaintiff, Nagaratnamba.
15. Then it is argued that there was division of status immediately after the transactions and in fact there was partition by metes and bounds as a result of which the suit properties fell to the share of Venhaiacharyulu and the plaintiff therefore cannot set up any right thereto, We have already referred to the fact that after the transaction, some notices were exchanged between the father and the son, Ex. A-29, a telegram which was given on 31-5-1947 to the father by the eldest son, D. W. 6, was to theeffect that the father was trying to waste away and alienate all the family properties, moveable and immovable, for immoral purposes without any necessity and that therefore sons under that telegram were intimating the intention to divide themselves from the father and they further alleged that his alienations would not bind them. This telegram refers to a registered notice that would follow. Accordingly, Ex. B-10, a registered notice dated 1-6-1947 was issued to the father stating that he was squandering away the family properties and moneys and that therefore the father should partition all the properties into fiw equal shares between himself and his sons and that his alienations and debts would not be binding on them. D. W. 6 did not rest content with this. He got pamphlets printed and distributed in the neighbouring villages. Further, he got the contents of Ex. A-30 proclaimed by beat of tom torn. He got it declared that the father and the sons had become divided in status and that the debts contracted by the father will not bind the sons. The father sent a reply by registered notice Ex. B-11 dated 20-8-1947 to Ex. B-10. He stated therein that he had no objection to partition the properties, that in fact they wore partitioned by metes and bourds but that the partition deed could not be executed owing to the objection of the eldest son, that the father should take only a life inter?st in the share that is allotted to him. Having regard to the contents of Exs. B-10 and 8-11, it is argued that in the intervening period, the properties were in tact partitioned by metes and bounds. There is no direct evidence, adduced in this behalf. The contention of the sons on the other hand was that on account of the intervention of the elders the property was not partitioned but all of them started living as ever as joint family members. Had the plaintiff proved that these properties fell to the share of the father in the family partition, her case might perhaps have been somewhat stronger but this she has failed to esta-blish. All that she sought to establish was that in the subsequent period, some documents were executed in favour of third parties which bear indications of the divided status and partition of properties by metes and bounds.
16. In this behalf, attention is drawn to Exs. X-7, B-19 and B-20. Ex. X-7 is a registered sale deed dated 20-4-1948 executed by the eldest son and his father in favour of D. W. 4's grandfather for a sum of Rs. 300/-. The minor sons are represented by the father as guardian. All that is said about it is that it does not contain the usual recitals and they are all members of a joint Hindu family. In our opinion, that is not a clinching circumstance to prove partition by metes and bounds nor is the recital that the land passed on to them by virtue of partition and that which is in their right and enjoyment necessarily leads to the conclusion that the partition referrea to therein is the partition between the vendors. Ex. B-19, a mortgage deed dated 264-1958 had been executed by the father in favour of Narasamma for Rs. 1000/-. Ex. B-20 is another document the schedules of which tally with the schedules in Ex. B-10 but it is significant that the endorsements in Exs. B-19 and B-20 show that they were nominally executed and were never put Into force. These documents, in our opinion, do not establish conclusively that there was partition by metes and bounds. It is no doubt true that as soon as there was clear ana unequivocal declaration of intention by the eldest son, a division of status had necessarily ensued and partition is but severance of joint status which is effected by a definite and unequivocal Indication of his intention by a member of a Joint family to separate himself from the family and enjoy his share in severally. But it does notfollow that on that account the right in favour of Nagaratnamba in the property sold to her by the father before this division had taken place had become established. The learned Subordinate Judge was not right in believing that on account of severance of joint status the plaintiff Nagaratnamba became entitled to the Suit properties being allotted to the share of the father, so that they may be retained in her possession. That was possible only if the sales were binding on the coparaceners. As already pointed out, NagaraUiamba did rot get any legal right in the property as the transfer was not for valiue and, as a gift, it could not bind any members of the family. What was an invalid transaction thus would not ipso facto become valid as a result of severance of joint status. If the father wanted to confer any valid title, that could be done only by the execution of a subsequent sale deod. That was not done. It follows therefore that Nagaiai-namba is not entitled to a decree in O. S. No. G3/1954 for the allotment of property.
17. Now the question is, whether she is entitled to any relief with regard to the improvements that she made in relation to the property covered by Ex. A-1 (house site). The property, as already stated, is not in the same state as it was when it was sold to her. It was then a mere thatched cottage. A terraced house sprang up in its stead later on. Various additions have been made to it. The contention of Nagaratnamba is that after the sale in her favour she came into possession of the property, made constructions and alterations at an enormous outlay and improved the property to the present condition. But the claim of the sons of Venkatacharyulu on the other is that during the lifetime of the father, much of the construction work had been completed. In paragraph 7 of the written statement in O. S. No. 12/1954, Nagaratnamba stated that she contracted debts and built the house. At the time of trial, she explained further that her mother who was possessed of Ac. 6-00 of land was also financing her for the construction of the house. Of course, she did not examine her mother but she produced certain documents to show that she raised funds for the construction of the building. They are Exs. X-1 to X-5. Ex. X-1 is a mortgage deed Which bears reference to Exs. X-2 to Ex. X-5, besides another pronote of 1-11-1949. Exs. X-2 to X-6 were executed in 1947 and 1948. The total sums covered by these pronotes come to Rs. 1350/-. Ex. X-I shows the balance of Rs. 382-7-0. These documents were executed in favour of P. W. 4's father. The sum referred to in Ex. X-1 was in fact paid before the Sub-Registrar. Having regard to the documents Ex. X-1 to X-6, there can be liftie doubt that Nagaratnamba had borrowed amounts for construction purposes. Though she did not examine her mother, has however examined some witnesses in proof of the fact that her mother had sent some money and that she herself sot cortstucted the house. P. Ws. 3, 4, 5, 6 and 7 have deposed in that behalf.
18. As against this, Venkatacharyulu's sons have examined D. Ws. 2 to 7 to prove that an old terraced house of the family was dismantled and its material was used for the construction of this house. It is significant that in Exs. E-21 and B-22, D. W. S does not state that the old terraced house was dismantled. It is only when she tiled the suit O. S. No. 12 of 1954 that he started this theory. D. W. 3 seems to have made some improvement in the case. He deposed that his grandfather purchased the property under Ex. X-7 and with the sale proceeds, he built a new house. This story is not consistent with that given by P. W. 6. As a matter of fact, the founda-tions were started and some walls were built even before Ex. X-7 was executed. It is no doubt true that some of the portions in the house were built during the lifetime of P. W. 1's paramour, Venkatacharyulu, but Nagaratnamba disclaims any financial help from him. She also denieg that the material of the old terraced house was at all used. It cannot be doubted that she did borrow some amounts even in the year 1947 and 1948 for purposes of the construction. The mason that she has examined as P. W. 2, is admittedly one of the masons who does construction work in that village. It is also common ground that after the death of D. W. 6's father, Nagaratnamba improved it by plastering the house inside, by constructing compound walls, rooms, steps and a kitchen. The trial Court came to the conclusion, on the evidence produced that she must have spent fairly huge amounts for this construction and that according to the valuation of the amin the house constructed is worth Rs. 8,000/-. Thus it is plain that Nagaratnamba as a transferee in possession made all the improvements as she found it necessary to suit her conveniences at a sufficient outlay. The question Is when It is now found that Nagaratnamba cannot any longer maintain her possession on the basis of the sale deed and has to deliver back the house, whether in law or justice, she ought to be compensated for the improvements she made. The learned Counsel for D. W. 6 relying on Kama Aryar v. Narayanaswami Aiyar, 51 Mad LJ 313: (AIR 19ZG Mad 609) argues that she is not entitled to any such right, under Section 51 of the Transfer of Property Act. Section 51 or the Transfer of Property Act reads thus:--
'When the transferee of immovable property mattes any improvements on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by a person having a Better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.'
The key-note of this section is good faith. Good faith nas been defined in the Genera! Clauses Act (X of 1897) thus:--
'a thing shall be deemed to be done in 'food faith' where it is in fact done honestly, whether it is done negligently or not;'
If Nagaratnamba made improvements on the prooerty in honest belief that she was absolutely entitled to It, on eviction she would be entitled to the benefit of Section 51 T. P. Act. The principle underlying this section is based on the doctrine of equity and therefore the maxim he who seeks equity must do equity would apply, it may Be noticed that even after the pre-requisites for the enforcement of equity enacted in Section 51 T, P. Act are satisfied, right to election for one of the two alternatives provided in. that section would still rest with the person evicting. He may either pay the value of the improvements and take the land or sell out his interest in the land to the transferee at the then market value of ths property.irrespective of the value of such Improvement. That is the substance of right conferred under Section 51. The contention is that Nagaratnamba did not act in good faith in making the improvements. In this behalf, it is stated that shortly after the sale deed, the transferor himself had given notice of the defect in title and further as early as in 1947, she cama to know of the notices exchanged between the fattier and the sons. In this state of altairs, it is contended that Nagaratnamba cannot be said to have believed in good faith that she is absolutely entitled to the property and hence she cannot get benefit of Section 51 T. P. Act As we have seen, the work of construction had started shortly after the purchase. She started borrowing moneys from 1947 for this purpose. Venkata-charyulu died in February 1949 and even thereafter she made further improvements in the property. It ;s important to note that at any time before the suit, the sons of Ven-katacharyulu did not give any notice to Nagaratnamba nor did they demand back the property from her. The telegram said to have been given to her, as already stated, was dis-claimed by her paramour who clearly and unequivocally on being asked, acknowledged her right. The notices that passed in the year 1947 were between the lather and the sons. No copies thereof were given to Nagaratnamba. In short, she was not put on notice by the sons as to the defect in her title. The sons as a matter of fact, kept quiet till the death of their father, and were silent Witnesses to the construction that was being made at great outlay. They should have raised demur and asserted their right. Not only did they keep quiet thus during the life time of their father but even thereafter they set up no claim to the house before the present suit was brought. They trespassed on the lands covered by Ex. A-2 and tne litigation in that connection went on from 1949 to 1953 and eventually resulted in a decree in favour of Nagaratnamba. During this long period, no effort was made to claim or get possession of the house. As a matter of fact, Nagaratnamba peacefully continued to be in possession. It is only in 1954 that a cloud was cast on her right to this property and that only by way of suit. Not even a prior notice was given to her in that behalf. In these circumstances, it is difficult to hold that she did not believe in good faith that she is entitled to the property in question when she made the improvements. It may be seen that in the case relied on by the defendants viz., 51 Mad LJ 313 at p. 324: (AIR 1926 Mad 609 at p. 613), as regaros the improvements made in 1898 effected at an expense of Rs. 4000/- it was held that defendants' father bona fide believed that he was the owner of the property. It was held so because the title was not questioned for a considerable number of years by anybody, not even by the daughter or sons. Those improvements were therefore held to be made bona fide within the meaning of Section 51 or the Transfer of Property Act. Of course, as regards the other improvements which were made after due notice, it was held otherwise. The other case relied on Nanjappa Goundan v. Perenna Goundan, ILR 32 Mad 530 at p. 531 only lays stress on the fact that in order to be entitled to the benefit under Section 51 it is necessary that the person should not be guilty of wilful abstention from making any enquiries as to the defect in titte. But whether there was such an abstention is a question of fact in this connection we may also refer to the following observations of the learned Judges in that case;
'No doubt a purchaser may have notice of facts show-Ing a defect in the title of his vendor and yet purchase the property honestly believing that he was buying goodtitle. And we are not prepared to say that good faith within the meaning of Section 51 of the T. P. Act is necessarily precluded by facts showing negligence m investigating the title. In fact to hold that every default in investigating the title ipso facto makes Section 51 inapplicable would be to exclude a very large class of cases from a rule which is based on obvious consideration of Justice.' It is obvious that the question whether or not a person has believed in good faith being always a question of fact, no hard and fast rule can be laid dawn which may be of universal application. On the facts of this case, it is clear to us that Nagaratnamba believed in goad faith that she was entitled to the property and mada improvements with that belief. It is also clear that Venkata-charyulu's sons never put her on notice of defect in her title and further being fully aware of the improvements, being carried on never demurred and by word or deed, showed that she was doing only at her sufferance. This conduct only gives an indication of acquiescence rather than of protest. Such being the case, she is entitled to tne benefit of Section 51. Since Section 51 gives the option to the evictor as to compensation, we called upon the learned counsel for D. W. 6 to state whether D. W. 6 and his brothers in exercise of this option are prepared to pay the value of tho improvements or prefer to accept the value of the property. The learned coursel stated that his clients would like to opt for the first alternative. The material on record is not sufficient to come to ths conclusion what exactly is the value of the improvements effected by Nagaratnamba. We therefore, without passing any final order as to the extent of compensation, direct that the lower Court will go into the question as the extent and value of the improvements and after ascertainment of the same call upon the decree-holders to pay the amount so assessed and only on payment of the same, direct that the decree-holders shall be put in possession;' of that properly. Subject' to this direction, O. S. No. 12/1954 would stend decreed to the extant of possession of A and B schedule property and also for profits from the date of the suit to the date of possession only with-regard 1o the A schedule property (lands) which will be-determined on the formal application of the decree-holders. O. S. Nos. G3 and 62 of 1954 would stand dismissed. Accordingly, appeal '157 is allowed and A. S. 558 of 1957; dismissed with costs only in A. S. No. 157/57 and A. si No. 89/57 is allowed subject to the above directions. The' appellant will be entitled to costs in O. S. No. 63/54, in the other suits, the parties will bear their .win costs. Tho cross-objections in A. S. No. 157/57 are dismissed without costs.