STATE OF KERALA Vs. THOMAS

JUDGEMENT

(1.) THE Taluk Land Board, Mukundapuram (for short 'the tlb') has determined the extent of land to be surrendered by the 1st respondent as per S. 85 of the Kerala Land Reforms Act (for short'the Act' ). It was finally determined that the 1st respondent shall surrender 3. 97. 625 acres of land, when the TLB's order was revised in a Civil Revision Petition disposed of by this court. THE Tahsildar took possession of the excess land from the 1st respondent on 8-1-1977. Subsequently, the Kerala Land Reforms (Amendment) Act, Act 27 of 1979 came into force on 7-7-1979, inserting sub-section IA in S. 84 of the Act as per the said sub-section, a transfer "effected by means of a gift deed executed during the period commencing on 1-1-1970 and ending with 5-11-1974 by a person owning or holding land in excess of the ceiling area, in favour of his son or daughter or the son or daughter of his predeceased son or daughter" is deemed to be valid. (THEre are some other conditions also to be satisfied to have the benefits of the sub-section, but among those conditions only one is relevant in this case, and reference to that condition will be made later ). Sub-section (I) of S. 84 (inserted by Act 27 of 1979) entitles a person to apply, within 60 days of the coming into force of the said Amendment Act, to the Taluk Land Board for restoration of the ownership or possession or both of any land covered by S 84 (1a ). Availing the said right, the 1st respondent along with his two sons (who are respondents 2 and 3) filed an application for restoration of an area of 2. 56 acres of land. It is stated in the application that the 1st respondent had executed two gift deeds on 8-8-1972, one is deed no. 2294 in favour of the 3rd respondent and the other is deed No. 2296 in favour of the 2nd respondent, each for an area of 1. 28 acres. THE TLB revised its earlier order and found that there is no excess land to be surrendered by the 1st respondent and directed the Tahsildar to return the lands already taken possession of. Aggrieved by the aforesaid revised order of the TLB, this Civil revision Petition has been filed by the State of Kerala.

(2.) TWO contentions are raised by the learned Government pleader in this revision. The first is that the TLB was wrong in holding that the two deeds are gift deeds since those instruments are clearly sale deeds. The second contention is that the benefit envisaged in S. 84 (1 A) of the Act cannot be extended to those lands already assigned on registry before the coming into force of the KLR. (Amendment) Act, 1979. According to the learned government Pleader, the land surrendered by the 1st respondent was assigned by the Land Board as provided in S. 96 of the Act and the assignees had paid the first instalment of the purchase price thereof. The TLB took the view that those deeds, though styled as sale deeds, are in effect, instruments of gifts made by the 1st respondent. The second contention does not appear to have engaged the attention of the TLB.

(3.) THUS, either in lexicographical or in legislative exercises the cardinal ingredient supplied to "gifts" is the absence of consideration in a transfer of property. Love or affection or any such mental disposition made perspicuous in a transfer of property cannot be regarded as its consideration, for, the mental propensity is only the motive or guiding spirit behind such transfers. Consideration is something which is of value in the eye of law (vide Black's Law Dictionary-Fourth Edition ). THUS, if a transfer is made in return for something which can be counted in terms of money, it is not a gift. But in a transfer of property, when the transferor does not get anything in return which can be valued in terms of money, it is ordinarily a gift. Voluntarliness of the transfer actuated by some mental inclination towards the transferee is, of course, one of the essentials of a gift. An instrument can be a gift deed, though sometimes it is camouflaged differently. Similarly, the nomenclature employed in an instrument of transfer may show it to be a sale or a settlement or partition, and yet the real purport of it is only a transfer without consideration in which case it really is a gift. If there is recital in an instrument that the transfer is made for consideration, there of course is a presumption that the transfer is made for consideration. However, if the parties succeed in showing that the recital therein about consideration is not a true statement, evidence is admissible to prove that the transfer is only a gift. S. 92 of the Evidence Act will not be a bar, in such cases, for proving the absence of consideration.