MADAM PILLAI Vs. BADRAKALI AMMAL

JUDGEMENT

(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 Secs.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/s. Muthukumaraswami (1912) I.L.R. 37 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.