Pethakutty Thalavanar, Pooliappa Thalavanar and Subbiah Thalavanar were three brothers who constituted a Hindu undivided family owning a few items of properties. On 27th January 1118 M. E. Subbiah Thalavanar one of the brothers executed a deed of settlement in favour of his wife, Velammal, covering some items of joint family properties. The terms of the settlement deed will be referred to later. On 20th September 1119 M.E Subbiah Thalavanar sold his undivided one-third share in respect of 3 items of properties in favour of Pandia Thalavanar for a sum of Rs. 1,100. One of the items of properties comprised in the said sale was already the subject matter of the settlement by Subbiah in favour of his wife, Pandia Thalavanar died in 1126 M.E leaving behind his last Will and testament in and by which the plaintiff, his son, became the sole legatee of his properties.

Pandia Thalavanai's son filed O.S No. 89 of 1952 on the file of the District Munsif Court; Shencottah, impleading the two brothers of Subbiah Thalavanar as defendants 1 and 2, and his widow as the 3rd defendant and seeking relief by way of partition and separate possession of an one-third share in the three items of properties which his father had purchased from the late Subbiah Thalavanar.

The suit was resisted by the defendants on the ground that the sale by Subbiah to the plaintiff's father was not a genuine transaction, and that in any event no relief can be had in respect of item 3 of the plaint schedule which had already been settled upon Velammal by Subbiah even prior to the execution of the sale by Subbiah.

The learned District Munsif, Shencottah, upheld the sale by Subbiah in favour of the plaintiff's father and accordingly granted a preliminary decree for partition in respect of items 1 and 2 of the plaint schedule. Item 3 of the plaint schedule was the property which formed the subject matter of the settlement in favour of the Velammal by her husband Subbiah. The learned District Munsif held that the settlement by Subbiah was valid in law as a family settlement and consequently Subbiah was incompetent to sell that item to the plaintiff's father. The suit in respect of item 3 was therefore dismissed. The learned District Munsif directed ascertainment of mesne profits in respect of items 1 and 2 in the final decree proceedings and awarded mesne profits to the plaintiff from the date of the suit.

The plaintiff preferred an appeal in A. S. No. 160 of 1957 on the file of the District Court, Tirunelveli, reiterating his claim for an one-third share in respect of item 3 of the plaint schedule property. The learned District Judge upheld the settlement in favour of the third defendant and negatived relief to the plaintiff in respect of item 3. The learned District Judge held that the plaintiff was not entitled to mesne profits for any period prior to the institution of the suit. The appeal therefore failed and was dismissed.

The plaintiff has preferred the above second appeal and the point for consideration is whether the plaintiff is entitled to an one-third share in item 3 of the plaint schedule property. The registered document executed by Subbiah Thalavanar is dated 27th January 1118 M. E. and is marked as Ex. 1 in the case. It is styled as a deed of settlement. The vernacular expression used is “settlement—”. The material portions of the document may be translated as follows:

“Particulars of my having executed this document entitling you to the properties and debts mentioned hereunder in consideration of our family benefit and out of love and affection for you my wife are as follows. The subject-matter mentioned hereunder shall hereafter be enjoyed by us paying “kara” (Government cist) and without either of us encumbering or alienating them separately. We shall ourselves pay and discharge the undermentioned debts. If the undermentioned properties require to be encumbered for our family benefit we shall together encumber them. In respect of any document executed by one of us the undermentioned properties will not be liable. Our santhathis (descendants) shall after our lifetime take the undermentioned properties with absolute rights and enjoy them. If we do not have santhathis the undermentioned properties shall belong to my family. You shall yourself give to my mother, Bhagya Thalavachi every year 1½ kottahs of paddy in respect of her maintenance during her lifetime on a charge upon the undermentioned properties. As we have agreed to these terms and this (agreement) has been executed we shall govern ourselves accordingly.”

In the schedule of properties attached to the document a number of items of debts payable by Subbiah Thalavanar are mentioned with particulars of the debts.

In view of the terms of Ex. 1 set out above, it is not possible to construe it as a gift deed pure and simple. A Hindu coparcener governed by the Mitakkshara as administered in Madras may dispose of his undivided ancestral estate by contract and conveyance. He may mortgage, sell or otherwise alienate for value his undivided share of the joint family properties. The Judicial Committee in Suraj Bunsi Koer v. Sheo Proshad Singh(1), stated the law thus at page 101:

“Since the decision, however, of the cases of Viraswami Chetty Gramani v. Aiyasami Gramani(2), of Peddamuthulati and others v. Imma Reddi(3), Palanivelappa Koundan v. Mannaru Naicken(4) and Rayacharlu v. Venkataramaniah(5), it has been settled law in the Presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share: and a fortiori that such share may be seized and sold in execution for his separate debt.”

The equity in favour of the alienee for value is perhaps the foundation for the power of alienation of a coparcener in respect of his undivided share. But it is equally well settled that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid, subject to certain exceptions. There is a long catena of decisions of this Court commencing from Baba v. Timma and others(6), holding that a gift by a member of a joint family of his interest in the joint family property in favour of a stranger or a relative is invalid so as not to bind even the coparcener, who made the gift.

In Rottala Runganatham Chetti v. Pulicat Ramaswami Chetti(7), it was held as follows:

“It is not competent to an individual member of a Hindu family to alienate by way of gift his undivided share or any portion thereof; and such an alienation, if made, is void in toto. This principle cannot be evaded by the undivided member professing to make an alienation for value when such value is manifestly inadequate and inequitable.”

Can Ex. 1 in the case be called a gift? S. 122 of the Transfer of Property Act defines gift as follows:

“Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person called the donor, to another called the donee, and accepted by or on behalf of the donee.”

A gift is essentially a gratuitous transfer. Complete absence of consideration marks the transfer as a gift and differentiates it from a grant.

In Halsbury's Laws of England, Vol. 18, page 364, paragraph 692, it is observed as follows:

“A gift inter vivos may be defined shortly as the transfer of any property from one person to another gratuitously while the donor is alive and not in expectation of death.”

In the footnote the following passage is quoted from Blackstone's Commentaries:

“Gifts then, or grants, which are the eighth method of transferring personal property are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent (2 B. 1 Co. 440).

The word “consideration” used in S. 122 of the Transfer of Property Act is used in the same sense as the term is defined in the Indian Contract Act. The definition of consideration under the Indian Contract Act as embodied in S. 2 (b) is as follows:

“When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does abstain from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.”

In English Law the term “consideration” bears the meaning given to it in the classical judgment of Currie v. Misa(8):

“A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered or undertaken by the other.

……Detriment to the promisee is of the essence of the doctrine, and benefit to the promisor is when it exists, merely an accident (Holdsworth History of English Law, VIII, page 11).”

Though the Indian Contract Act does not in terms provide that consideration must be good or valuable to sustain a contract it has always been understood that consideration means something which is of some value in the eye of the law. It must be real and not illusory, whether adequate or not, adequacy being a matter purely for the contracting parties to decide and to agree upon. So long as the consideration is not unreal it is sufficient if it be of slight value only.

Chitty in his Contract, 21st Edn. page 47, Vol. I, observes as follows:

“As regards the extent of trouble, loss, or obligation which the promisee has taken upon himself at the promisois's request, we shall find, on considering the cases to be presently referred to, that it is immaterial that the detriment or charge thus assumed is, in fact, of the most trifling description, provided it be not utterly worthless in fact and in law; and that, unless it appears that the promisee incurred no detriment whatever, it need not be shown, in order to constitute a good consideration, that benefit resulted to the promisor from the performance by the promisee of the stipulated act. It has also pointed out that the emphasis in consideration is not on the benefit of the promisor but the detriment to the promisee.”

In order to test whether a consideration provided for in a document is real or not, the following tests have been laid down by Sir William Anson in his Law of Contract on page 90, (a) Did the promisee do, forbear, suffer or promise anything in respect of the promise to him; (b) Was his act, forbearance, sufferance or promise of any ascertainable value; (c) Was it more than he was already legally bound to do, forbear or suffer? On the answer to these questions depends the reality of the consideration.

There cannot be any doubt that Ex. I, in the case was not a mere gratuitous transfer by Subbiah in favour of his wife. In consideration of her enjoying the properties she was not merely made liable to pay a few of the debts which Subbiah had incurred, but she also undertook the burden of a maintenance charge and to pay maintenance to Subbiah's mother at the rate of 1½ kottahs of paddy per year. The transferee under; Ex. I could not have accepted the gift of the properties without the burden imposed upon them. I am of opinion that Ex. I is an alienation for value as the alience, namely, Subbiah's wife undertook to discharge his debts and also to pay the maintenance in favour of his mother as consideration for the transfer.

The learned District Judge of Tirunelveli has taken the view that even as a gift Ex. I can be supported because of the concurrence of the other caparceners, namely, defendants 1 and 2. It must be noted that the concurrence of defendants 1 and 2 was not at the time when Ex. I was executed. Such a concurrence of defendants 1 and 2 as can be spelt out from the written statement filed by them in the suit can at best amount only to a purported ratification by them of Ex. 1. If in law Ex. 1 were to be treated as void in toto as observed by this Court in Rottala Runganatham Chetti v. Pulicat Ramaswami Chetti, there can be no question of ratification, as a void transaction is one which has no existence whatever, and is non-est in law. The Andhra High Court in Suryakantam v. Suryanarayanamurthi has no doubt held that the gift of an undivided share is not void in the sense that it is a nullity but only in the sense that it is not binding on the other coparceners. It is not necessary for me to say whether that view can be followed by this Court having regard to the observation already referred to in the Madras decision above cited. It is sufficient to say that in this case the plaintiff will not be entitled to recover any share in item 3 of the plaint schedule as Ex. I it a valid transfer.

I agree with the learned District Judge that the plaintiff will not be entitled to any mesne profits in respect of items 1 and 2 for any period before the institution of the suit.

The learned Counsel for the appellant contended that there must be a reimbursement in his favour of a portion of the purchase price paid by his father in respect of the sale by Subbiah as he had lost title to item 3 of the plaint schedule. This is not a matter which can be considered in this appeal and it will always be open to the plaintiff to avail himself of the remedy of reimbursement or damages for breach of covenant for title if any, in other appropriate proceedings.

In the result the second appeal fails and is dismissed with costs.

V.C.S