1. In this second appeal by the chief contesting first defendant who has failed in both the courts below, the short question for consideration is whether the settlement deed Ex. A.I, executed in favour of the plaintiff by her husband just before the marriage, is wholly void, or valid as against his share in the properties covered by the deed. The courts below have upheld the plaintiffs claim of a half share in the properties, declared her right to the same, and decreed delivery thereof with mesne profits. The suit properties, an extent of one acre and 80 cents in R. S. 18/2 and a house in Vadakrishnapuram village, Chidambaram taluk, stood in the name of the plaintiffs husband Muthulinga Padayachi. His brother is one Palanivelu Padayachi, father of defendants 5 to 8 in the suit who have not contested the plaintiff's claim. The finding of the courts below is that, on the plaintiff's parents insisting upon a settlement of property being made in her favour as a consideration for the plaintiff marrying him, Muthulinga Padayachi settled the properties on her under the deed Ex. A.1, dated 30-6-1943. The courts below have accepted the evidence that the settlement was a condition for the plaintiff marrying Muthulinga Padayachi. The further finding is that the plaintiff was a major at the time of the marriage negotiations and settlement. The marriage was celebrated a week after the execution of the document and there is evidence that she had been put in possession of the properties settled and was in enjoyment of the same. Some years after the execution of the settlement deed, Palanivelu Padayachi, the brother of the settlor, instituted the suit, O. S. 282 of 1951 on the file of the District Munsif Court, Chidambaram for partition and separate possession of his half share in the suit properties, contending that they are joint family properties, and that the plaintiff's husband, in whose name the properties stood, had no exclusive right in the properties. The plaintiff and her husband were both made defendants in that suit They made common cause in the suit, and it was pleaded therein that the plaintiffs husband, Muthulinga Padayachi, had been in possession of the properties till the settlement and thereafter his wife, the 2nd defendant in that suit, had been in possession of the same, and that the properties were separate properties of Muthulinga Padayachi. It was held in that suit that the properties were joint family properties of the brothers, Muthulinga Padayachi and Palanivelu Padayachi, and following the finding a decree for partition and possession of a half share in the properties was granted on 29-11-1952 in favour of Palanivelu Padayachi. As a result of the partition proceedings, Palanivelu Padayachi got the eastern 80 cents of the suit first item. Subsequently Mufhulinga Padayachi, ignoring the rights of his wife under the settlement deed, sold away the eastern 90 cents to the present appellant, the first defendant in the suit out of which the second appeal arises, under Ex. B.3, dated 12-4-1954. Defendants 2 and 3 claim under the first defendant and the second appeal relates only to the 90 cents, the subject of conveyance by the plaintiffs husband in favour of the first defendant. It may, here, be stated that the first defendant is an attestor to the settlement deed Ex. A.l.
2. The contention of the appellant, with reference to the settlement, is that it was a gift of joint family properties and, therefore, wholly void, void even as against the settlor. It is said that the settlee, the plaintiff, got no title under the document even in respect of the settlor's half share in the properties, so the subsequent alienation by the settlor in favour of the first defendant prevailed over the claim under the settlement deed. The Courts below concurrently find that the settlement deed is not a gift, pure and simple, but a conveyance for consideration and, therefore, binding on the settlor to the extent of his half share in the properties.
3. Now at the time of execution of Ex. A.1 the properties were joint family properties and the settlement was made by a coparcener. The other coparcener filed the suit for partition and secured his half share therein. In that suit, there was no plea as between the settlor and the present plaintiff, that the document was void, nor was there any finding in that suit given as to the true character of the settlement deed, whether it was a gift or conveyance for consideration. The plaintiff in that suit, the brother of the plaintiffs husband, was given a half share in the properties, ignoring the alienation as not binding on his share, overruling the defence that it was not joint family property. But if in Jaw the alienation was a gift, it is well settled that the same would not bind even the settlor and the absence of a finding in the earlier suit is neither here nor there. It was sufficient for the determination of that suit if it did not bind the plaintiff therein. The law is thus summed up in Mullah's Hindu Law 13th Edn. at page 291, thus:--
"According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property"
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4. Mr. A Srirangachariar for the appellant referred to a number of authorities where gifts by coparceners, particularly a gift of ancestral immoveable properties by a husband to his wife out of natural love and affection and even in fulfilment of his father's wishes, have been held to be void. My attention was drawn to Sivagnana Thevat v. Udayar Thevar, where Veeraswami, J. following the Division Bench decision of this Court in Palvanna Nadar v. Annamalai Ammal, held that a gift of even a reasonable portion of immoveable property belonging to the joint family to a second wife as a marriage gift or in anticipation of marriage is invalid. In Peru-nalakkal v. Kumares an Balakrishna, the Supreme Court, while pointing out that a Hindu father can make a gift within reasonable limits of im-moveable ancestral property to his daughter in fulfilment of an ante-nuptial promise made on the occasion of the settlement of the terms of her marriage and the same can also be done by the mother in case the father is dead, remarks that no single case had been referred to where a gift by husband to his wife of immoveable ancestral property was upheld. After noticing that a Hindu father or any other managing member had power to make a gift within reasonable limits of ancestral immoveable property for pious purposes, it was said that the Court saw no reason to extend the scope of
"pious purposes' beyond what had already been done. It was observed that even the father-in-law, if he had a desire to make a gift at the time of the marriage of his daughter-in-law, would not be competent to do so in so far as immoveable ancestral property was concerned. But these cases are all cases of gift and it is manifest that a gift of ancestral immoveable property, in favour of the wife would be wholly invalid, whether made by the husband or the husband's father or manager of the joint family of the husband. But according to the Mitakshara law prevailing in this State, a coparcener may sell, mortgage or otherwise alienate for value his undivided interest in the coparcenary property without the consent of other coparceners. In
Suraj Bansi Koer v. Sheo Proshad Sing, (
1879) 6 Ind App 88 (PC), the Judicial Committee observed that "
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.' To restate only a gift of joint family property except for the purposes cognised by the personal law, is wholly void and does not bind even the alienor. The question now is whether the settlement deed Ex. A.I is a deed of gift or is a transfer for consideration.
5. The document Ex. A.1 recites that, in view of the insistence of a settlement of properties when the settlor asked the plaintiff to marry him, he is giving the properties under the settlement deed and placing the same in her possession. The properties are to be enjoyed by her during his lifetime without alienation. Children of the marriage have to take the properties absolutely, and, if there is no issue by the marriage, the plaintiff herself has to take the properties. The settlement in this case was not Just a motive or a grant made out of affection or as a provision for the future. The transfer here was not just a gratuitous transfer. The transfer preceded the marriage and in consideration of the same the marriage followed immediately after. The Transfer of Property Act defines a gift as a transfer of certain existing moveable or immove-able property made voluntarily and without consideration by a person called the donor to another called the donee, and accepted by or on behalf of the donee. As pointed out in Mullah's Transfer of Property Act, 5th Edn. page 772, the word 'consideration' is used in the definition of gift under the Transfer of Property Act, in the same sense as in the Indian Contract Act, and excludes natural love and affection. Mullah quotes Blackstone as saying 'gifts are always gratuitous grants upon some consideration or equivalent . See also Kulasekharapemmal v. Pathalkutti, . The Indian Contract Act defines 'consideration' in Section 2(d) as follows-
"When, at the desire of the promisor, the promisee or any other person, has done or abstained from doing, or does or abstains 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"
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As Anson, in his Law of Contract, 22nd Edn. page 92, points out, "consideration, of course, must be something which is of some value in the eye of law". Motive must not be confused with consideration. A desire to carry out the wishes of a deceased or a person to whom the alienor has respect would not amount to a consideration, It is well recognised that a promise to marry is a valid consideration--See Tejaunnissa Bivi Animal v. Rahimath Bivi Ammal, 1959-1 Mad LJ 221. Marriage may be a sacrament under Hindu Law, but that does not militate against the existence of a contract for the marriage. Normally, the reciprocal promise to marry would be consideration for the contract or marriage. But there could be other consideration, provided that such consideration is not opposed to public poh'cy or in any manner illegal. In Chitty's Contract, Volume I, 22nd Edn. page 512, it is said-
"On the other hand, the promise must be supported by consideration to be actionable; and though this consideration is usually reciprocal promise to marry it is not necessary that this should be pleaded when there is other consideration."
In Pran Mohan v. Hari Mohan, AIR 1925 Cal 856 at p. 857, where the plaintiffs agreed to give a house to the 2nd defendant in the case and induced the bridegroom party to agree to the marriage, the court observed-
There is, therefore, a finding by the courts below that there was ante-nuptial promise by the plaintiff which became a binding contract when the marriage followed. The validity of such contracts is well established. In the case of Gobinda Ram Dasi v. Radha Ballabha Dasi, 1910-13 Cal WN 205, Mr. Justice Mookeiji held that such contracts are valid and binding". The court there distinguished the cases of marriage brokerage contracts which were opposed to public policy and cases where there was no consideration except natural love and affection.
6. The lower appellate court in this case has followed the decision of this Court in Nanjundasami Chetti v. Kanagaraiu Chetti, ILR 42 Mad 154 = (AIR 1919 Mad 500). In that case a settlement of a portion of joint family property was made by a Hindu in favour of his foster daughter, in pursuance of a promise made by bim in consideration of her marriage with another who offered to marry her on such condition. It was held that the settlement was not a gift, but was valid and binding on the alienor's son to the extent of the alicnor's share as an alienation for consideration. It was a case of settlement pursuant to a promise made when the intended In is band insisted on the settlement as a condition for the marriage --similar to the present case except that the promise here is by the husband to his would-be wife. The settlement was by the foster father of the bride to her would-be husband. It must be noted that the bride not being the daughter of the joint family the settlement evidently was not attempted to be justified as a gift permitted under the Hindu law. The court observed in that case that, if a person contracted a marriage in consideration of a promise, then the marriage would be valuable consideration within the meaning of the definition of 'consideration' in the Contract Act. After pointing out that it was settled law that a coparcener could not make a valid gift even of his share, the court proceeded to consider the question whether the transaction in that case was a gift or alienation for valuable consideration. The Division Bench posed before itself for decision the qxiestion whether the gift, made in pursuance of a promise for consideration of marriage, is an alienation for valuable consideration under Hindu law and observed-
"But once the validity of alienation for valuable consideration is recognised, it seems to us impossible not to include such a transaction as this within the operation of the rule. None of the cases to which we hava been referred lay down that this power of a Hindu coparcener is merely confined to sales or mortgages; but the general proposition which we deduce from the decisions in
Ayyagiri Venkataramayya v. Ayyagiri Ramayya. (
1902) ILR 25 Mad 690,
Baba v. Timma, (
1884) ILR 7 Mad 357, Ponnusamo v. Thatha, (
1886) ILR 9 Mad 273 and
Kasturiramaraju v. Ivaluri Ramalinga,
ILR 26 Mad 74 is that an ordinary simple gift for no consideration will not be upheld as distinguished from alienation for consideration. We, therefore, hold that the 14th defendant is entitled to a half share of items 3 to 8 of A schedule."
The 14th defendant in the case was the husband of the 4th defendant the bride who died pendente lite. It was found in that case also, the promise was made Just before the marriage. In my view, this decision governs the instant case. Here also, the concurrent finding of the courts below is that the settlement was made in consideration of promise of marriage, just prior to the marriage, and the settlement was followed by the marriage. Both the settlor and the settlee, the husband and would-be wife, were adults, the actual contract was between them and the settlement was in favour of the would-be wife. There is no question of any public policy involved with reference to the settlement, and the mutual promises have been performed. This is not a case of any gratuity or a gift to a third party in consideration of giving an infant or minor in marriage, nor is it a marriage brokerage contract. The husband is, therefore, bound by the settlement; the settlement being a transfer for consideration is not wholly void and is good to tie extent of the settlor's interest in the properties. There is no question of natural love and affection at that stage. Of course, the settlement did not bind the settlor's brother and the contest is with reference to the settlor's share only. No decision of our Court contrary to the decision in ILR 42 Mad 154=(AIR 1919 Mad 500) has been placed before me. The ratio de-cidendi or this decision is that a transfer, made specifically in consideration of marriage, is an alienation for valuable consideration within the rule of Hindu law and not a gift. It follows that the decisions of the Courts below are correct and cannot be assailed in law.
7. It is pointed out that, while the trial Court has specifically stated that the plaintiff has title to a half share in the suit properties; the decree as drafted has not brought out this aspect of this matter and holds the plaintiff entitled to the suit properties as escribed in the schedule. In the schedule the entire items are described. The lower Appellate Court, on appeal by defendants 1 to 3, has pointed out that only the eastern 90 cents in tie first item of plaint B schedule which had been sold by the plaintiffs husband to the first defendant and the first defendant, in his turn, to defendants 2 and 8, was the subject of appeal. But the appellate decree, without any modification, confirms the decree of the trial Court. The decree in the suit will have to be modified in terms of the lower appellate court's direction confining the decree to the eastern 90 cents in B schedule property. The other item has not been the subject of any appeal. Subject to the provision for rectification of the decree in regard to the first item, the second appeal is dismissed. The plaintiff will be en-tided to her costs. Leave refused.