The Tripura high court recently comprising of bench of Justice Arindam Lodh observed that “Good consideration” is not prohibited under Section 122 of the Transfer of Property Act. (Shri Mouna Brata Sarkar And ors v. Shri Subrata Sarkar)
The bench remarked that it was only out of her love and affection and considering her old age and on a clear understanding of her moral duty, she transferred the suit land in favor of the plaintiff by way of gift deed. This ‘consideration’ should not in any way be termed as ‘valuable consideration’ but it should be considered as ‘good consideration’ and ‘good consideration’ is not prohibited under Section 122 of the Transfer of Property Act, for ‘good consideration’ is the antithesis of ‘valuable consideration’.
Facts of the Case
The respondent had instituted the suit for declaration of title and recovery of possession of the suit land from the appellants who are his brother and sister in law. The Trial Court had passed an order that a gift deed had been duly executed and the plaintiff is entitled to the delivery of the suit property. Aggrieved with the judgment passed by the Civil Judge, the defendants have preferred the present first appeal.
Contention of the parties
Mr. Daschoudhary, learned counsel appearing for the appellants had attacked the judgment and decree passed by the learned Trial Court mainly on the ground that the learned Trial Judge had failed to appreciate the term “consideration‟. Referring to Section 2(d) of the Contract Act, Mr. Daschoudhury, learned counsel argued that a gift had to be made without any “consideration”.
According to Mr. Daschoudhury, learned counsel, the term “consideration:” has to be emanated from the recitals of deed itself. It does not always mean that „consideration‟ means monetary transaction. According to learned counsel, the gift deed itself proves that it was executed on consideration that since the plaintiff purchased the suit land on payment of consideration money from his own source of income, and the promise being made by the mother to return the suit property, she had gifted the same in favour of the plaintiff. Learned counsel contended that since the gift deed had been transacted out of that promise constituting the basis of “consideration”, the said gift deed suffered from illegality and void ab initio and for that reason, it could not confer any title upon the plaintiff. As such, since the suit of the plaintiff was based on title and title had not been proved, he could not ask for declaration of title on the basis of such void gift deed and claim recovery of khas possession, evicting the defendants from the suit property.
At the same time, Mr. Daschoudhry, learned counsel has submitted that the suit land was purchased both by the plaintiff and the defendant No.1 in the name of their mother and lion share of the „consideration‟ money was paid by defendant No.1. It was further argued that taking advantage of the old age of their mother, the plaintiff somehow had managed to obtain the gift deed, executed by their mother.
On the other hand, Mr. S. Bhattacharjee, learned counsel appearing for the plaintiff-respondent contended that the interpretation made by the learned counsel for the appellants in regard to the term of “consideration” was not correct proposition of law and was liable to be rejected. The plaintiff had been able to prove the gift deed. Mr Bhattacharjee, learned counsel for the plaintiff defended the judgment and decree as passed by the learned Civil Judge, Senior Division.
Courts Observation & Judgment
The bench noted, “In view of the submission of the learned counsel for the appellants, I have looked for the definition of the term “consideration” as contemplated under Section 2(d) of the Contract Act, 1872, which reads as under:- ”
2.(d) 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.”
The term “promisor” and “promise” are defined under Section 2(c) of the Contract Act, 1872 as under:- “2.(c) The person making the proposal is called the “promisor”, and the person accepting the proposal is called the “promisee”; In other words, when the proposal is accepted, the person making the proposal is called as „promisor‟ and the person accepting the proposal is “promise””
The bench went on to observe, “From the aforesaid definition, the learned counsel for the appellants tried to persuade this Court that at the desire of the plaintiff, his mother Arati Bala Sarkar had agreed to purchase the suit land in her name, though „consideration‟ money would be paid by the plaintiff. However, simultaneously, the mother promised to return the said purchased suit land in favour of the plaintiff subsequently or as and when the plaintiff would raise his demand to return the said purchased land in favour of him. Thus, being a proposal maker, the plaintiff became „promisor‟ and the mother Arati Bala Sarkar being executed his proposal, became „promisee‟. Further, the agreement to return the purchased land as and when it would be demanded by the plaintiff was nothing but a „consideration‟ and out of that “consideration”, the mother Arati Bala Das executed the gift deed in favour of the plaintiff.
Now, proceeding to decide the merits of the submission as addressed by learned counsel for the appellants, it would be relevant to keep in mind the settled proposition as defined under Section 122 of the Transfer of Property Act that it is the essence of a gift that it should be without „consideration‟ of the nature as envisaged in Section 2(d) of the Contract Act. It leads me to give a bird‟s eye view to the deed of gift (Exbt-1). There is no dispute regarding the valid execution and registration of the gift deed. The only question raised by the learned counsel of the appellants is that the gift deed was transacted on the basis of the promise made by the mother of the plaintiff that it would be returned to the plaintiff as and when such demand would be raised, and on the basis of that promise, the mother, Smt. Arati Bala Sarkar transferred the suit land to the plaintiff by way of gift.”
The bench noted, “In my opinion, it should be the normal rule of interpretation that the contents of a deed or document have to be read and construed in the language as encrypted in the said deed or document itself and the Courts shall not be guided or influenced by any superfluous imagination. As such, from the recitals of the gift deed, I am to evaluate the only point of controversy as agitated before me as to whether the gift of the suit land which was made on account of mutual love and affection, could be said to be transferred on „consideration‟ out of her promise made in past to return the suit property as and when demand would be raised by the plaintiff.”
The Court referred to the case of Currie V. Misa, wherein the following observation were made, “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.”
The Court also made reference to judgment of Division Bench of Bombay High Court in Ramacharya Venkatramanacharya vs Shrinivasacharya, and observed that “They had also relied upon the meaning of valuable consideration‟ as defined in Currie(supra).”
The court considering the precedents and the facts of the case held that, the recitals in the gift deed proved that the donor had gifted property in favor of done voluntarily and without any valuable consideration. The appellants had failed to plead that any fraud was committed in the execution and registration of the gift deed. There is no evidence that the donor executed and registered the gift geed under any undue influence or coercion. Thus dismissing the appeal.
“In view of the above analysis, the elements as crystallized in the definition of “valuable consideration” ex facie are found to be absent in the recitals of the gift deed in contra, the elements of “good consideration” predominate the recitals of the deed executed by the mother of the plaintiff, Arati Bala Sarkar and for the reasons discussed here-in-above on both points of law and facts, I find no merit in the appeal, and accordingly, the appeal stands dismissed. The judgment and decree of the Trial Court is affirmed and upheld. However, the parties are to bear their own cost”, the bench remarked.
Read Judgment;
SOURCE ; latestlaws.com
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