MUNNAN KHAN Vs. ASHRAFUNNISAN

JUDGEMENT

(1.) THIS is a defendant's Second Appeal in a suit for possession of a house which was dismissed by the trial court but was decreed on appeal by the lower appellate court. The plaintiff-respondent is the divorced wife of the defendant-appellant. According to the plaintiff's case, she became owner of the house under a sale deed dated 30-1-1956, which was executed by the defendant in her favour. The marriage between the parties appears to have been contracted after the said sale. It was alleged that on 8-3- 1965, the defendant took forcible possession of the house and included it in his adjacent house. Mesne profits at the rate of Rs. 2/- per month were also claimed in addition to the decree for possession.

(2.) THE defence was that the sale deed was without consideration and fictitious. According to the defendant's case, the plaintiff's father wanted the defendant to execute a sale deed before agreeing to the plaintiff's marriage with the defendant for enhancing his prestige among the relatives.

(3.) I find it impossible to agree with the view of the lower Appellate Court on this point. Sale is defined by S. 54, T. P. Act, as "a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised. " Price means money consideration. A promise made or a thing given or promised to be given could be consideration for a contract but the making of a promise to do something or the giving of a thing or the promise to give a thing is not equivalent to the payment of a price or promise to pay a price. Where the consideration for a transfer is not price but a thing of value the transaction is called an exchange as defined under Sec. 118, T. P. Act. A gift is a transfer made voluntarily and without consideration which means, in the context, consideration other than valuable consideration.