O.P. Saxena, J.
1 This is a plaintiff's appeal against the judgment and decree dated 14-9-76 passed by the learned Civil Judge, Kanpur.
2. The suit was filed by one Mukta Prasad for cancellation of gift deed dated 4th August, 1964, for possession over the house and for permanent injunction restraining the defendant from interfering with his possession over the house. Mukta Prasad was recorded owner of House No. 109/56 Nehru Nagar, Kanpur. He had no wife or child. On 4th August, 1064 he executed gift deed of the house in favour of the defendant. He filed the suit for cancellation of the gift deed on the grounds that its execution was obtained under fraud and misrepresentation, that the deed was never executed and explained to him and that it was never acted upon. It was alleged that the defendant wrongfully obtained possession over the house. Mukta Prasad died during the pendency of the suit and Subhas Chandra was brought on the record on the basis of will Ex. 28 dated 20-11-65.
3. The suit was contested by the defendant with the allegations that the gift deed was duly executed by Mukta Prasad and there was no fraud or misrepresentation, that Mukta Prasad voluntarily executed gift deed after fully understanding the contents, that the gift deed was duly acted upon, that Subhas Chandra is not the sole heir of Mukta Prasad, that the suit is barred by time and the suit is barred by Section 571 of the Nagar Mahapalika Adhiniyam.
4. The learned Civil Judge disbelieved the plaintiff's version regarding the execution of the gift deed by fraud or misrepresentation He believed the evidence adduced by the defendant and held that Mukta Prasad executed the gift deed after fully understanding the contentsand it was binding on him. He disbelieved the plaintiff's version that the gift deed was never acted upon. He held that Mukta Prasad was called upon to receive the payment but he did not come and rejected the version that the defendant did not pay him the amount. He accepted the version of Subhas Chandra regarding the will executed by Mukta Prasad in his favour. He repelled the other legal pleas raised by the defendant. In view of the finding on the main issue, he dismissed the suit with costs. He made no order regarding the realisation of the court-fees as the suit had been filed by the plaintiff as a pauper and was continued by Subhas Chandra as such. Hence this appeal.
5. Sri S. N. Verma, learned counsel for the appellant firstly assailed the finding of the learned Civil Judge regarding the due execution of a gift deed by Mukta Prasad. He submitted that there was no reason for Mukta Prasad to execute a gift deed in favour of the Nagar Mahapalika, Kanpur and the learned Civil Judge did not appreciate the plaintiff's version that the gift deed was obtained by fraud and misrepresentation. Sri Lalji Sinha, learned counsel for the respondent supported the finding of the Civil Judge.
6. The evidence of D. W. 1 Baij Nath Singh shows that Mukta Prasad told him that he wanted to make a gift of his house to the Nagar Mahapalika and wanted to give application in this regard. The witness prepared drafts of applications dated 12-11-61 and 23-3-62 paper Nos. 189 ga and 187 ga. He got them typed. He read over the drafts to Mukta Prasad who put down his thumb marks in his presence. He also put down his signatures on these applications. He took Mukta Prasad to K. Pratap, Property Officer of the Nagar Mahapalika and Mukta Prasad gave the applications, to him. D. W. 5 K. Pratap deposed that Mukta Prasad gave these applications to him. Baij Nath Singh had certified the thumb marks of Mukta Prasad. The applications were sent to the Administrator, Nagar Mahapalika, Kanpur. Paper No. 185-ga is a copy of resolution passed by the Nagar Mahapalika on 29-3-62. Mukta Prasad had laid down four conditions for making the gift. The first condition was that Nagar Mahapalika should set up a school in his name. The second condition was that Nagar Mahapalikashould properly maintain the house. The third condition was that the Nagar Mahapalika should permit him to live in one of the small rooms. The fourth condition was that the Nagar Mahapalika should pay him Rs. 100/- per mensem as maintenance. The resolution shows that all these conditions were accepted by the Nagar Mahapalika. The gift deed was executed on 4-8-64. P. W. 5 Jhabbu Lal and D. W. 5 K. Pratap were the two attesting witnesses. D. W. 2 K. N. Bhalla also signed before the Sub-Registrar. There is the endorsement of the Sub-Registrar under Section 52 of the Indian Registration Act. D. W. 1 Baij Nath Singh was also present. The evidence of D. W. 1 Baij Nath Singh and D. W. 5 K. Pratap shows that Mukta Prasad executed the deed after fully understanding its contents. The statement of P. W. 5 Jhabbu Lal is not of much help. He simply stated that Mukta Prasad told him that he was giving the house on Rs. 100/- per mensem and there was no talk of a gift. The allegations made in para 6 of the plaint were to the effect that Sri K. Pratap told Mukta Prasad that he had to bother about the collection of the rent from tenant, that he would ensure him a monthly income of Rs. 100/- per mensem besides his right to reside in a portion of the house, that ha would be thereby ensured with a permanent income and would make a part of the house available to the Nagar Mahapalika for education of the children and that the deed was to be executed to attain this object. It would appear that the terms alleged in para 6 of the plaint were almost similar to the terms mentioned in the letters dated 12-11-61 and 23-3-62. The only difference is that according to the plaintiff, Mukta Prasad did not want to execute a gift deed but some agreement embodying the terms contained in para 6 of the plaint, while according to the defendant he wanted to execute the gift deed. Both the parties examined experts regarding the genuineness of the thumb marks of Mukta Prasad on the two letters. P. W. 1 Sri S. P. Ghosh could not give any opinion as according to him the thumb marks were rather blurred. D. W. 5 Sri Rajendra Prasad, the expert examined by the defendant deposed that the thumb marks on these letters were of Mukta Prasad. The comparison was made from the admitted signatures of Mukta Prasad, Sri K.Pratap could have no interest in playing any fraud on Mukta Prasad. Had he obtained a gift deed in his favour or in favour of any relation, there could be some point in the plea regarding fraud and misrepresentation. Mukta Prasad knew Sri K. Pratap and he went to him twice with the aforesaid letters in which a request was made that the defendant may accept the gift of the house and it was in pursuance of this that the gift deed was executed. There is overwhelming evidence on the record to show that the gift deed was duly executed by Mukta Prasad after fully understanding the contents. The evidence of D. W. 3 Shiv Swarup Bajpai, Headmaster and D. W. 4 Prem Narain, peon shows that the school was duly opened in the portion of the house, in which there was tenant after he vacated the same, in July, 1963 and the school was named after Mukta Prasad and his son. There is no force in the submission that its execution was obtained by fraud or misrepresentation. We are unable to accept the submissions of Sri Verma and hold that the Civil Judge rightly disbelieved the plaintiff's version on this point.
7. Sri Verma next submitted that the gift deed was void as it was for a consideration that the defendant would pay Rs. 100/- per mensem to the executants for his maintenance. He referred to the definition of gift given in Section 122 of the T. P. Act.
'Gift' is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee'.
8. Consideration has been defined in Section 2(d) of the Contract Act as below :--
'When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise'.
9. Reliance was placed on the case of Anrudh Kumar v. Lachhmi Chand : AIR1928All500 . There was a promise to discharge the debt of the executant. It was held that the transaction could not prima facie be treated as a gift as a promise to discharge the liability of the transferor is a valid consideration.
10. The next case relied upon is reported in Kulasekaraperumal v. Pathakutty Thalevanar AIR 1661 Mad 405. It was held:--
'Complete absence of consideration marks the transfer as a gift and differentiates it from a grant. Consideration must be real and not illusory, whether adequate or not adequacy being a matter purely for the contracting parties to decide and to agree upon. So long as the consideration is not unreal if is sufficient if it be of slight value only. Where in consideration of her enjoying the properties transferred the wife was not only made liable to pay the debts incurred by the husband but she also undertook the burden of a maintenance charge and to pay maintenance to the husband's mother, the transaction does not constitute a gift but amounts to an alienation for value in favour of the wife'.
11. Sri Lalji Sinha submitted that this is not a case in which the donee may have made a promise to pay off the debts of the donor. The donee accepted the pious wish of the donor to maintain him and this could not come within the scope of consideration. Mukta Prasad was about 74 years old at the time of the execution of the gift deed. He had no wife and was issueless. He could not be expected to live for long. He died on 30th November, 1965, within a forth-night of the filing of this suit on 19th November, 1965. The gift deed was executed on 4th August, 19G4. In Gangadhara Iyer v. Kulathar Iyer, AIR 1952, Trav Co 47, it was held that there was an out and out transfer by way of gift followed by a direction to the donee to maintain the donor, the latter direction is only a pious wish. In Tila Bewa v. Mana Bewa : AIR1962Ori130 , it was held that a gift subject to the condition that the donee would maintain the donor cannot be revoked under Section 126 of T. P. Act for failure of the donee to maintain the donor. It was pointed out that there was no agreement between the parties that the gift could be suspended or revoked on the failure of the donee to maintain the donor. Sri Lalji Sinha urged that there was no such agreement in this case and the payment of a token sum of Rs. 100/- p. m. to the donor for his maintenance for a few years could not come within the scope of 'consideration' as defined in Section 2(d) of theContract Act. Major portion of the house was let out to a tenant at Rupees 162/- p. m. It was merely a reciprocal gesture to an old man with no wife or child who was prepared to make a gratuitous transfer of the house in favour of the defendant for running a school for children,
12. We have carefully considered the submissions of the learned counsel. We are unable to agree with Sri S. N. Verma. He has not cited any precedent in which a gift deed with a similar provision may have been held to be void. We may refer to the case of Sonia Bhatia v. State of U. P. : 3SCR239 . The Supreme Court held on p. 1280, para 20:--
'From a conspectus, therefore, of the definitions contained in the dictionaries and the books regarding a gift of an adequate consideration, the inescapable conclusion that follows is that 'consideration' means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee.........'
It was further held in the same para :
'In fact, where there is any equivalent or benefit measured in terms of money in respect of a gift the transaction ceases to be a gift and assumes a different colour. It has been rightly pointed out in one of the books referred to above that we should not try to confuse the motive or the purpose of making a gift with, the consideration which is the subject matter of the gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these filial considerations cannot be called or held to be legal considerations as understood by law. It is manifest, therefore, that the passing of monetary consideration is completely foreign to the concept of a gift having regard to the nature, character and the circumstances under which such a transfer takes place.'
13. In view of the aforesaid concept of 'consideration' we are unable to accept that the undertaking by the respondent to pay a token sum as maintenance to Mukta Prasad in the circumstances of this case, could amount to a 'consideration' and defeat the gift. We hold that the gift deed is not vitiated on account of the above provision.
14. No other point was pressed.
15. The First Appeal is dismissed with costs. The court-fees payable by the plaintiff-appellant in both the Courts shall be shown in the decree and shall be recovered from the appellant. A copy of the decree shall be sent to the Collector, Kanpur for necessary action.