- (1.) THIS is a defendant's Second Appeal in a suit for possession of a house which was dismissed by the trial court but was decreed on appeal by the lower appellate court. The plaintiff-respondent is the divorced wife of the defendant-appellant. According to the plaintiff's case, she became owner of the house under a sale deed dated 30-1-1956, which was executed by the defendant in her favour. The marriage between the parties appears to have been contracted after the said sale. It was alleged that on 8-3- 1965, the defendant took forcible possession of the house and included it in his adjacent house. Mesne profits at the rate of Rs. 2/- per month were also claimed in addition to the decree for possession.
(2.) THE defence was that the sale deed was without consideration and fictitious. According to the defendant's case, the plaintiff's father wanted the defendant to execute a sale deed before agreeing to the plaintiff's marriage with the defendant for enhancing his prestige among the relatives. The Trial Court believed the defendant's case and held that at the time of the Nikah the plaintiff's father asked the defendant to execute the sale deed for enhancing his status and that the amount of Rs. 500/- stated to be the consideration for the sale had never, in fact, been paid. Having reached this finding, the Trial Court held that title did not pass under the sale deed to the plaintiff and she did not become owner of the house and dismissed the suit. The lower Appellate Court confirmed the finding of the trial court that no cash was, in fact, paid for the sale. Even so, it held that the sale deed was executed as pre-condition of the marriage and was a part of the marriage transaction and that the marriage itself was sufficient consideration for the sale. In the own words of the lower Appellate Court: "if the sale deed was executed as precondition of the marriage it becomes a part of the marriage transaction and the marriage itself becomes sufficient consideration for the sale deed. If consideration did not pass it was an agreed matter and the recital of payment of consideration prior to the sale deed to formally complete it as sale was also an agreed matter. In such a case we may treat the transfer in substance to have been a gift or to have been a sale in which the vendor chose to refund the price though certifying the receipt of the same without actually taking any money. In any case, however, I am clearly of the view that the transfer is not intended to be fictitious. This was in fact intended to be very genuine being intended as an insurance for the bride. For other legal rights, like dower and maintenance the bride has to come to Court but a sale deed property is already in her possession. I am therefore not prepared to hold on the material on record that the sale deed was a fictitious one. I would say that even though no money was passed it was a sale deed in contemplation and consideration of the coming marriage and a genuine transaction affecting titles. "
(3.) I find it impossible to agree with the view of the lower Appellate Court on this point. Sale is defined by S. 54, T. P. Act, as "a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised. " Price means money consideration. A promise made or a thing given or promised to be given could be consideration for a contract but the making of a promise to do something or the giving of a thing or the promise to give a thing is not equivalent to the payment of a price or promise to pay a price. Where the consideration for a transfer is not price but a thing of value the transaction is called an exchange as defined under Sec. 118, T. P. Act. A gift is a transfer made voluntarily and without consideration which means, in the context, consideration other than valuable consideration. On the finding that the sum of Rs. 500/- which was specified as the consideration for the transaction in the sale deed was never paid it is impossible to say that the transaction was a sale. It follows that the sale deed was fictitious in the sense that it did not represent the true state of affairs. It was nobody's case that the defendant intended to or made a gift of the house to the plaintiff. There is the further fact that in the case of a gift it has to be accepted as such.;