Walter Salis Schwabe, Kt., C.J.
1. The Chief Justice: The question referred to us in this case is 'whether a transfer of land of the value of more than Rs. 100-0-0 by a husband to his wife to be enjoyed by the latter during her life time in discharge of her claim to future maintenance can be made without writing.'
2. It was argued first that such an agreement was a gift, because it was said that such a bargain was illegal and, therefore, without consideration : but it had to be admitted that, if the bargain was to receive the land in discharge of the claim to future maintenance, there was nothing illegal at all; and it is not necessary to say anything further on the subject of gift. By the Transfer of Property Act, Section 9 'A transfer of property may be made without writing in every case in which a writing is not expressly required by law' and, therefore, one has to look' at the rest of the Act to see whether writing has been expressly required by law for such a transaction as this. Apart from the question of gift, the only sections, which it is claimed, could apply are Sections 54 and 118. Section 54 relates to sales, a sale being defined 'as a transfer of ownership in exchange for price paid or promised'. In this case one has to consider whether there was a price paid or promised by the transferee. Now, 'price' has a well defined meaning. It means money, but not necessarily money handed over in current coin at the time but includes money which might be already due, or might be payable in the future. I think the law is well expressed in the commentaries on the Transfer of Property Act by Shephard and Brown, page 175. 'Price' includes money only, for, if the thing given and exchanged 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. There being, in my view, no price paid or promised in this case, the transaction was not a sale. We were referred on this point to a decision in Ariyaputhira v. Muthukumaraswami I.L.R. (1912) Mad. 423 and to certain observations of Sadasiva Aiyar, J. therein in which apparently he would extend 'price' so as to cover all cases where articles are exchanged, one against the other, provided that the parties went through the mental process of fixing in their own minds the value of the articles to be exchanged. I must say that I think that that was going beyond anything that one can find in the Act. It seems to me that those observations were quite unnecessary for the decision which was arrived at in that case, and I confess that I cannot agree that the mental process gone through of valuing in one's mind the different articles to be exchanged can possibly turn an exchanged transaction into a sale.
3. The remaining section is Section 118 which deals with exchanges. By that section 'Exchange' is defined as follows : Where two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an 'Exchange', in this transaction the husband transfers the land or the right to use the land during the life time of the wife and the wife gives up her right to future maintenance. It seems to me that there are two reasons why this transaction cannot be an exchange within that definition. First of all, the husband does not transfer the ownership of the. land, and secondly, the wife does not transfer the ownership of anything. She does not purport to transfer anything to her husband, nor had she anything, within the meaning of that section which she could transfer.
4. On these grounds the answer to the question referred to us is in the affirmative.
Coutts Trotter J.
5. I agree. When we are construing a word like price, we are dealing with a word which is by its inherent nature a likely subject of controversy and I turned out of curiosity to the Oxford English Dictionary and found the quotation from Adam Smith's Wealth of Nations--1776. 'The real price of everything, what everything really costs to the man who wants to acquire it, is the toil and trouble of acquiring it. Labour was the first price, the original purchase money that was paid for all things,' But it seems to me that the answer is to be found in what I said during the course of the argument that a trained English lawyer would never use the word priced unless it be to connote something other than the perfectly familiar phrase 'valuable consideration,' which would naturaly occur to his mind; and it seems to me that the whole of Mr Krishnaswami Iyer's ingenious argument comes to this, that we are to construe price as meaning the familiar term 'valuable consideration.' I think that the word price was put into the section to connote something different and something more limited, that is, money.
Kumaraswami Sastri J.
6. I agree with my Lord and would only add that even if the transaction is treated as a settlement of family disputes there is nothing in Hindu law requiring it to be in writing. Partition can under Hindu Law be made without any document and a settlement cannot be in a worse position.
7. It is argued that the transaction must be viewed as a gift of immoveable property as under Hindu Law an agreement by a husband to provide for the future maintenance of his wife is invalid and there being no legal and valid consideration for the transfer it is in effect a gift. I see nothing illegal in Hindu Law for a husband to make provision for the future maintenance of his wife. It is very often a very proper thing to do. Even assuming that the agreement to provide for future maintenance is invalid under Hindu Law the transaction will not amount to a gift. It will be invalid not for want of writing and registration but because it is incompetent for the parties to enter into the transaction because of the personal law by which they are governed.