“Good Consideration” based on love and affection stands in contrast to “Valuable Consideration”

Estimated reading time: 5 minutes

YUGEN REALTY, SURAT

Like land/property purchase and sale transactions, transactions like gifting and gifting of land/property are seen in great numbers even today. In this too, gifts are made especially between family members on the basis of love and natural feelings.

As soon as everyone hears the word gift, it is believed that gift means a transaction done without consideration, but in some cases, if gift is considered to be done in the transaction either explicitly or indirectly in the context of consideration, then according to the legal definition of consideration, it can be “good consideration” or “valuable consideration”, that is, “good consideration” is based on natural duty and feeling or strong moral duty and is a consideration in return for the love and feeling held by one person for another and it includes natural duty, generosity. While the word compensation is sometimes used in the sense of compensation that is acceptable in law, it also includes valuable or adequate as well as fair compensation. Thus, in legal terminology, both “good compensation” and “valuable compensation” have contradictory meanings.

As explained above, the principle that “good consideration” in the form of love and affection is in the opposite sense of “valuable consideration” has been established by the Hon’ble Tripura High Court in the case of Mouna Subrata Sarkar, son of Chittaranjan Sarkar, etc. vs. Subrata Sarkar, son of Chittaranjan Sarkar, Regular First Appeal No. 18/2018, by a final order dated 20/04/2021 (Land Laws Judgments, Volume-1, Issue-6, June-2022, Page No. 435). The facts of this case in brief are as follows.

The plaintiff and the mother of the defendant no. 1 (Arati Bala Sarkar) had purchased the suit property from their mother. The defendants no. 1 and 2 who are the brother and sister-in-law of the plaintiff and the plaintiff had constructed a house on the suit land and the defendant no. 1 requested to let them live in the house with his wife. And the mother was not satisfied with the activities and behaviour of the defendants and she had expressed the apprehension that if the defendants were allowed to live in the same house with her, then she would be in mental depression. Thus, the plaintiff’s mother had given a writ of habeas corpus in favour of the plaintiff, the plaintiff had given a notice to vacate the possession to the defendant but the defendant did not vacate the premises nor did he reply to the notice.

Also, the defendant no. 2 being employed in the administrative department of the Government of Tripura, made a devious attempt to prevent the plaintiff’s name from being recorded as “Raiyat” in the proceedings for recording the change. Thus, the plaintiff filed a suit against the defendants for declaration of title and to recover possession of the claimed land from the defendants/appellants. And as per the defendants, the agreement to return the purchased land as and when demanded by the plaintiff was “consideration” and out of that “consideration” Mata Arati Bala Das had made a gift in favour of the plaintiff. In the suit, the trial court passed a decree in favour of the plaintiff. Aggrieved by the decree, the present appeal has arisen.

Section 122 of the Transfer of Property Act defines “gift” as: “Gift” means a transfer of specific existing movable or immovable property made voluntarily and without consideration by the giver of the gift (donor) to the recipient of the gift (doer) and accepted by him or by any person on his behalf.”

Black’s Law Dictionary also defines the terms “good consideration” and “valuable consideration” as follows: “Good consideration” means consideration based on natural duty and sentiment or on strong moral obligation. A consideration for the love and affection felt by and for a person falling within a category recognized by law. Motives of natural duty, generosity and wisdom come under this category. The term is sometimes used to mean consideration that is admissible in law and then, it includes valuable or sufficient as well as fair consideration. However, “good consideration is generally used in the opposite sense to valuable consideration, which must necessarily be excluded from the case of gift by virtue of its definition in section 122 of the Transfer of Property Act.”

The Hon’ble High Court came to the conclusion that the donor, Smt. Arati Bala Sarkar, had gifted the suit property in favour of the plaintiff on the basis of some valuable consideration. It was only out of her love and affection and considering her advanced age and with a clear sense of her moral duty, she transferred the suit land in favour of the plaintiff by way of gift. This “consideration” should not be considered as “valuable consideration” in any way, but it should be considered as “good consideration” and “good consideration” is not prohibited under Section 122 of the Transfer of Property Act, because, “good consideration” is in the opposite sense of “valuable consideration”. Considering it further, the texts of the gift deed sufficiently prove that it was done by the donor Arati Bala Sarkar voluntarily and without any valuable consideration in favour of the plaintiff-grantor.

In the light of the above analysis, the elements as elucidated in the definition of “valuable consideration” seem to be absent at first sight in the writings of the bequest, on the contrary the elements of “good consideration” become paramount in the writings of the bequest made by the plaintiff’s mother, Arati Bala Sarkar.

It can be said on the basis of the above-mentioned judgment of the esteemed High Court that, as per the legal definition of consideration, ‘good consideration’ is a consideration based on natural duty and sentiment or strong moral duty and includes natural duty, generosity and love and affection felt by one person for another. While the word consideration is sometimes used in the sense of consideration that is acceptable in law or valuable consideration, it includes valuable or sufficient and also fair consideration. Thus, looking at the legal definition, both “good consideration” and “valuable consideration” remain in contradictory meanings.

(Land Laws Judgments, Volume-1, Issue-6, June-2022, Page No. 435)

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Disclaimer : This information has been collected through secondary research and Yugen Realty Newspaper is not responsible for any errors in the same.

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