- Bookmark
- Share
- CaseIQ
Belo v. Parbati
Factual and Procedural Background
This appeal arises from a suit for sale on foot of a deed of simple mortgage executed by Mt. Munno in favour of Lachhman Das on 4th November 1925. The mortgagee, Lachhman Das, assigned his mortgagee rights to the plaintiff, Mt. Parbati, on 5th February 1930. The appellant was impleaded as defendant 1 on the allegation of possession of the property, while Mt. Jamuna was impleaded as defendant 2 as she was alleged to be the daughter of Mt. Munno. The courts below decreed the suit in favour of the plaintiff. The appellant challenged the decree primarily on the ground that no legal necessity for the mortgage had been proved. The courts found that it was not established that Mt. Munno held only a limited estate under Hindu law, and that Mt. Munno was the full owner with absolute transfer rights. The courts thus held that the appellant was not entitled to raise the issue of legal necessity.
Legal Issues Presented
- Whether the appellant could raise the question of legal necessity for the mortgage when it was not established that Mt. Munno held only a limited estate under Hindu law.
- Whether the plaintiff, Mt. Parbati, was entitled to maintain the suit given the allegation that the assignment from Lachhman Das to her was for an "immoral consideration" due to their alleged relationship.
Arguments of the Parties
Appellant's Arguments
- The courts below erred in decreeing the suit because no legal necessity for the mortgage was proved.
- The plaintiff's title was tainted as she was allegedly a mistress of Lachhman Das and the assignment was made for an immoral consideration, invoking Clause (h) of Section 6, T.P. Act, and Section 23 of the Contract Act.
Respondent's Arguments
- The appellant failed to prove that Mt. Munno had only a limited estate; hence, the question of legal necessity could not be raised.
- Past cohabitation is not unlawful consideration under the law, and the plaintiff’s assignment was valid notwithstanding any alleged past relationship with Lachhman Das.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Man Kuar v. Jasodha Kuar (1876) 1 All 478 | Past cohabitation is not an unlawful consideration. | Supported the view that past cohabitation does not invalidate a transfer of property. |
| Dhiraj Kuar v. Bikramajit Singh (1881) 3 All 787 | Past cohabitation is not an unlawful consideration. | Reinforced the principle that past illicit relations do not render consideration illegal. |
| Mt. Mahtab-un-Nissa v. Rifaqat Ullah (1925) 12 AIR All 474 | Distinguished between future adulterous cohabitation (illegal) and past illicit connection (not illegal consideration for property transfer). | Applied to hold that consideration given to compensate for past illicit connection is valid. |
| Lakshminarayana Reddyar v. Subhadri Ammal (1903) 13 MLJ 7 | Recognition of the principle regarding past cohabitation and property transfer. | Agreed with the view that past cohabitation does not invalidate property transfers. |
| Godfrey v. Mt. Parbati Paluni (1938) 25 AIR Pat 502 | Affirmed that past cohabitation is not an unlawful consideration. | Supported the Court’s adoption of this principle in the present case. |
| Sabava Yellappa v. Yamanappa Sabu (1933) 20 AIR Bom 209 | Distinguished between consideration for past and future cohabitation; future cohabitation is immoral consideration. | Found not applicable here as no future cohabitation was contemplated in the present case. |
Court's Reasoning and Analysis
The Court first analyzed whether the appellant could raise the issue of legal necessity for the mortgage. It held that this could only be done if it was shown that Mt. Munno possessed the property as a limited owner under Hindu law. Since the appellant failed to prove this and Mt. Munno was found to be the full owner with absolute transfer rights, the appellant was not entitled to contest the mortgage on this ground.
On the allegation that the assignment to the plaintiff was for an immoral consideration due to an alleged mistress relationship, the Court referred to Clause (h) of Section 6, T.P. Act, and Section 23 of the Contract Act. It relied on established precedents holding that past cohabitation does not constitute unlawful consideration invalidating a property transfer. The Court distinguished the present case from those involving future adulterous cohabitation, which is illegal. Since no suggestion was made that the parties contemplated future adulterous cohabitation, the Court found no basis to invalidate the assignment on grounds of immorality.
The Court also considered conflicting views from other High Courts and preferred the consistent view of this Court and the High Courts of Madras and Patna, thereby rejecting the appellant’s contentions.
Holding and Implications
The appeal is dismissed with costs.
The Court upheld the decree of the lower courts, confirming the validity of the mortgage and the assignment to the plaintiff. The appellant's failure to prove limited ownership under Hindu law precluded raising the issue of legal necessity. Further, allegations of immoral consideration based on past cohabitation were rejected in line with established legal principles. No new precedent was established; the decision directly affects only the parties by affirming the plaintiff’s right to maintain the suit and the validity of the mortgage sale.
1. This is an appeal by defendant 1. The suit was for sale on foot of a deed of simple mortgage executed by Mt. Munno in favour of Lachhman Das on 4th November 1925. The mortgagee, Lachhman Das, assigned his mortgagee rights to the plaintiff, Mt. Parbati, on 5th February 1930. The appellant was impleaded as defendant 1 on the allegation that she was in possession of the property. Mt. Jamuna was impleaded as defendant 2 on the allegation that it was stated that she was a daughter of Mt. Munno. The Courts below have decreed the suit. The principal point which learned Counsel appearing for the appellant has argued is that the Courts below having found that no legal necessity for the mortgage in suit had been proved, the suit should not have been decreed. It seems to us however that before the point of legal necessity can be raised, it must be shown that Mt. Munno was in possession of the property holding the limited estate of a Hindu woman. The Court of first instance states in its judgment that it has not been proved by the defendants that Mt. Munno was in possession of the property as a limited owner under the Hindu law. It has also been found that Mt. Munno's husband died before her gauna was performed and that defendant 2 is her illegitimate daughter. In these circumstances, it was for the appellant to establish by clear evidence that Mt. Munno was not the full owner of the property with an absolute right of transfer. The Courts below have correctly held that the appellant in these circumstances was not entitled to raise the question of legal necessity.
2. The only other point that has been argued is that the plaintiff, Mt. Parbati, was a mistress of Lachhman Das, that the assignment made by the latter in her favour was for an "immoral consideration" and that therefore the plaintiff was not entitled to maintain the suit. Reference is made by learned Counsel to Clause (h) of Section 6, T.P. Act, which refers to Section 23, Contract Act. It has however been consistently held in this Court that past cohabitation is not an unlawful consideration: (vide Man Kuar v. Jasodha Kuar (1876) 1 All 478. and Dhiraj Kuar v. Bikramajit Singh (1881) 3 All 787) The latest case in this Court which deals with the subject is that in Mt. Mahtab-un-Nissa v. Rifaqat Ullah (1925) 12 AIR All 474 in which the learned Judge makes these observations:
When the agreement la that parties are to live in adulterous cohabitation in future the contract is obviously illegal, but if in order to compensate the woman for the past illicit connexion, the offending party gives her some property I would not be prepared to say that the consideration for it is illegal. The offence had already been committed.
3. In the case before us it has not been suggested that the relation between Lachhman Das and Mt. Parbati was adulterous. The same view has been taken by the High Courts of Madras and Patna in Lakshminarayana Reddyar v. Subhadri Ammal (1903) 13 MLJ 7. at p. 13 and L.R. Godfrey v. Mt. Parbati Paluni (1938) 25 AIR Pat 502. We agree with the views expressed in these cases. Learned counsel for appellant has cited the case in Sabava Yellappa v. Yamanappa Sabu (1933) 20 AIR Bom 209 In that case Patkar J. held that the transfer in question was in lieu of past as well as future cohabitation. He observes at p. 214:
In the present case there was the immoral object so far as the future cohabitation with defendant 1 was contemplated by Sabu.
4. No such point arises in the case before us. As to past cohabitation, the learned Judge observes:
Past cohabitation would be consideration for an agreement under Section 2(d), Contract Act, but is not good consideration for a transfer of property. A gift does not require consideration. It is difficult to bold that past cohabitation can be an object of a gift.
5. The other learned Judge, Barlee J., did not entirely agree with the views expressed by Patkar J. As stated above, we prefer the view that has been held in this Court and in the High Courts of Madras and Patna. We are therefore unable to accept the contention of the learned Counsel for the appellant. For the reasons given above, we dismiss this appeal with costs.
Alert