GAVARAYAMMA Vs. SURYANARAYANA

JUDGEMENT

(1.) The plaintiff filed the present suit for recovery of possession Survey No. 98/1 admeasuring 1 acre. The plaintiff who is a married woman was the concubine of defendant No. 3. It is her case that she purchased the suit land from defendant No. 3 under a sale deed (Ex.A1) dated 1st October 1965 Defendants 1 and 2 are the sons of defendant No. 3. The suit land admittedly belonged to defendant No. 3. ID defence it was contended by all the defendants including defendant No. 3. that the sale in favour of the plaintiff was invalid because there was no consideration for the transaction and secondly because it was given away by defendant No, 3. to the plaintiff for immoral purposes. It was also conteded that the sale transaction was sham and that it was executed by defendant No. 3. under pressure and coercion from the plaintiff. It was next pleaded that there were negotiations for compromise between the parties and that the plaintiff had agreed to reconvey the suit property to defendant No. 3. for a sum of Rs. 2,500/-under an agreement dated 14th September 1966. Defendant No, 3. admitted to have developed illicit intimacy with the plaintiff in August 1965. The learned trial Judge found that the suit land was the self- acquired property of defendant No. 3. and that the sale transaction in favour ol the plaintiff was not supported by consideration. He, therefore, held that it was a sham and nominal transaction. Secondly, he held that the agreement to reconvey the property had bsen proved. In view of the findings which he recorded, he dismissed the suit. The plaintiff appealed to the appellate court. The learned appellate Judge for slightly different reasons came to the same conclusions and dismissed the appeal. It is that appellate decree which is challenged by the plaintiff in this Second appeal. The finding that the sale transaction was not supported by consideration or was sham and nominal is ordinarily a finding of fact with which this court cannot interfere in second appeal. It has been found by the learned appellate judge that the sale transaction was not supported by cash consideration. Secondly, according to him, it was given over by defendant No. 3 to the plaintiff for immoral purposes. He has further held that in view of the finding that tha suit land was self- acquired property of defendant No. 3 it was open to defendant No. 3 to give away the property to the plaintiff for any purpose whatsoever if he so chose. Admittedly, the transaction by defendant No. 3 in favour of the plaintiff was a transaction oi sale, 'sale' is defined in Section 54 of the TRANSFER OF PROPERTY ACT, 1882 as transfer of ownership in exchange for a price paid or prodused or part-paid or part-promised. A sale transaction, therefore to be valid must be supported by price which is paid or promised fully or iu part. It is not the plaintiff's case that she had promised to pay the cash consideration nor is it her case that it was paid. Mr. Jagannadha Rao has argued that past cohabitation between the plaintiff and defendant No. 3 was good consideration for supporting the validity of the sale transaction This was not what the plaintiff pleaded. It is necessary to note in this context that the plaintiff is a married woman. Any cohabitation with her would give rise to an adulterous intercourse which is against public policy. Such an adulterous intercourse cannot be a substitute for price paid or promised nor can it be a valid conderation. In support of his contention that past cohabitation is good consideration for supporting the transaction, he ha? invited my attention to a few decisions.

(2.) The first decision to which he has referred is in Man Kaur V. Jashodha Khar. There are two distinguishing facts which render this decision inapplicable to the instant case. The first fact is that the property in that case was settled and not sold. The question, therefore, of paying the price or promising to pay it did not arise. Secondly, the concubine in that case was not the married wife of another person. The next decision to which my attention has been invited is in Shiraj Kaur V. Bikra Majit Singh It was not a case in which the paramour had sold the property to his concubine. What was done in that case was that Bikramajit Singh, the paramour, had agreed to pay an allowance of Rs. 2/-P.M to his mistress Dhiraj Kaur for her provision on account of their past cohabitation. The question, therefore, of supporting the sale by cash consideration or otherwise did not arise in that case. Secondly, there is nothing in that decision to show that the concubine Dhiraj Kaur was a married woman.

(3.) The third case to which he has referred is in Lakshminarayana Reddyar V. Subhadri Ammal It was a case of a promissory note executed by Lakshminarayana Reddyyar, the paramour, in favour of his mistress SubhadriAmmal. It has been observed in that decision by Bhashyam Aiyangar, J, that a promise made in consideration of past cohabitation is valid under the Indian Contract Act. It was not a case of supporting a sale by consideration other than the price paid or promised. Secondly, it was not a case of an adulterous relationship between the paramour and his mistress.