1. This is an appeal by defendants Nos. 4 and 5 who are transferees pendente lite arising out of a suit brought by the plaintiff as the heirs of one Rama Kant for possession of a house by avoidance of a deed of gift dated the 21st of November, 1921. The plaintiffs claimed that the deed of gift had been obtained by fraud and was also void as being for an immoral and illegal consideration. They further alleged that their father, Moreshwar Rao, who would have been the heir to the deceased Rama Kant, had become a sanyasi and therefore must be treated as civilly dead and the plaintif's were the real heirs. The claim was contested by the transferees and the plaintiffs right to maintain the suit or to challenge the relation was disputed.
2. Both the Courts below have given the plaintiffs a decree.
3. The facts as found are as follows:
Rama Kant, deceased became infatuated with Musammat Prabhawati, defendant No. 2, who is at present undergoing sentence of transportation for life. She and Gobind, defendant No. 1 (who has since been hanged and who was passing as her husband), along with another person entered into a conspiracy to obtain the house by way of gift from Rama Kant and then to murder him. In order to obtain their object, they got a deed of gift executed by him and assured him that Mt. Prabhawati would live with him and in fact they executed a contemporaneous agreement under which it was agreed that they all would live and mess together and no one would be able to dispose of his or her property in the life-time of the other and that after Gobind Rao's death, if the two other persons disagreed or separated they would have certain specific shares in the property and that if any two died, the third would be the complete owner. The deed of gift and the agreement were registered on the 25th of November, 1921, and within a month of their registration, Rama Kant was murdered by the donees. The donees and the other conspirator were put up on their trial and convicted. While the criminal case was pending, the present plaintiffs instituted the suit, and it was during the pendency of the suit that the donees purported to make a gift of this house to the two persons whom the present appellants represent.
4. The plaintiffs' right to maintain the suit in view of the fact that their father has become a sanyasi has not been challenged in second appeal.
5. The main point urged before us is that the Courts below were wrong in holding that the said gift can be avoided by the present plaintiffs. The contention before us has been that the gift, if voidable, could only have been avoided by the deceased Rama Kant, if he exercised his option during his life-time, and that if for any reason he failed to exercise such option, that right did not survive to his heirs, the present plaintiffs.
6. We are quite unable to accept this contention. It is not quite correct to say that the right of exercising such an option is like a personal contract which does not survive to the heirs of the promisor. The right is given to the promisor under statute. Furthermore, a deed of gift is more than a mere contract. It is a conveyance. The present plaintiffs can claim that there was no absolute transfer of the property at all but it was a qualified transfer, i.e., subject to the right of the transferor to avoid it if he chose to do so. The plaintiffs, therefore, can claim the property by avoiding the deed of gift which could have been avoided by their predecessor. There does not seem to be any valid ground for saying that the right does not survive to the present plaintiffs. This is specially so in the case where the donees themselves have prevented the transferor, by murdering him, from exercising his right of option. It seems to us that the plaintiffs can claim the property and ignore the gift because it was not absolutely binding on Rama Kant provided of course they come within the period of limitation as they have done in this case.
7. In analogous cases it has been held that in case where an immediate reversioner who has a right to avoid an alienation made by a Hindu widow without legal necessity, dies before he exercised his option, his heir can maintain a suit, vide Sarju Prasad Raut v. Manqal Singh : AIR1925All339 , decided by a Bench of which one of us was a member. In the case of Muhammad Muzammilullah Khan v. Mithu Lal (1910) 33 All. 783, a Full Bench of this Court held that even a transferee of joint family property can avoid an alienation which was voidable on the ground of want of legal necessity. On principle, therefore, there seems to be no good ground for holding that the present plaintiffs as heirs of Rama Kant cannot avoid the gift which was voidable at the option of Rama Kant merely because Rama Kant was murdered before he could avoid it. The view taken by the Court below was, therefore, correct.
8. We would go further and hold that in this case, on the findings of the lower Appellate Court, the deed of gift was not only voidable but was void ab initio. The learned District Judge has found that the donor made a gift of the property to a husband and wife on condition that he should have physical enjoyment of the latter. The consideration for the transfer therefore was the future illicit connection between the donor and Mt. Prabhawati. Such an agreement was obviously both immoral and opposed to public policy within the meaning of Section 23 of the Indian Contract Act. Accordingly it is altogether unlawful. Being unlawful, it could not be a valid consideration for the gift at all. The result, therefore, is that the deed was not only voidable but was absolutely void from the very beginning and it was not even necessary for Rama Kant to have it avoided by a suit. He could have merely ignored it. In this view of the matter the question whether such a right survived to the present plaintiffs, the heirs, does not arise.
9. The learned Advocate for the appellants has contended that the condition that Rama Kant should have the physical enjoyment of Mt Prabhawati was in itself void, but the gift would not be void. He has strongly relied on a remark in the judgment of their Lordships of the Privy Council in the case of Ram Sarup v. Bela (1884) 6 All. 313, where their Lordships said that an immoral condition attached to a gift would be void itself but the gift itself would not be so. But the facts of that case were quite different. There, as their Lordships found, the gift as originally made was absolutely unconditional and was complete at the time when the actual transfer took place, but the parties subsequently tried to import into the gift a condition which was immoral. That is why their Lordships spoke of a condition being attached to the gift. It is obvious that there is a clear distinction between an immoral consideration for a gift and an immoral condition which is subsequently attached to a gift. If the consideration itself is immoral, the transfer falls to the ground. On the other hand, if a subsequent condition is tried to be attached to a perfectly valid gift, then the condition, if immoral, is void, but the gift remains unaffected. That a transfer in consideration for future immoral connection is vitiated, is fully borne out by authority, vide the case of Thasi Muthukannu v. Shunmugavelu Pillai (1905) 28 Mad. 413.
10. On the findings, therefore, the transfer was for an immoral and illegal consideration and was absolutely void and was not binding either on Rama Kant or his heirs, the present plaintiffs.
11. The appeal must be dismissed with costs including in this Court fees on the higher scale.