Civil Appeal No 775 of 1981
Appeal by Special Leave from the Judgment and Order dated 211278 of the High Court of Allahabad in CMWP No 1260277
section N Kacker and Prem Malhotra for the Appellant
O P Rana and section Dikshit for the Respondent
The Judgment of the Court was delivered by FAZAL ALI J
This appeal by special leave is directed against a judgment dated December 21 1978 of the Allahabad High Court allowing the writ petition filed by the State of UP before the Court
The case arose out of an order passed by the Prescribed Authority under the UP Imposition of Ceiling on Land Holdings Act 1960 hereinafter referred to as the Act  as amended uptodate by which the said Authority rejected the claim of the petitioners on the basis of a gift which had been executed by her grandfather by a registered document dated January 28 1972
The Act was passed as far back as 1960 but by virtue of an amendment being UP Act No 18 of 1973 section 5 was introduced which placed a ceiling on any tenure holder to hold land in excess of the ceiling area fixed under the Act
Section 5 contained various sub sections but in the instant case we are concerned only with sub section 6 as also clause b of the proviso to the said sub section
By another amendment being UP Act No 2 of 1975 which was given retrospective operation with effect from 861973 Explanation I alongwith its sub clauses was added to sub section 6 of section 5
The decision in the present case turns upon the interpretation of sub section 6 of section 5 and the proviso therein in order to determine the validity of the deed of gift said to have been executed by Chunni Lal Bhatiya the grandfather of the petitioner Sonia and respondent No 4 before the District Judge
To begin with we might like to state here that the facts of the case undoubtedly reveal that if the provisions of the said sub section 6 were to apply it would work serious hardship to the petitioner but as we are concerned with interpretation of an important statute the mere fact that a correct interpretation may lead to hardship would not be a valid consideration for distorting the language of the statutory provisions
243 Before we proceed to examine the relevant provisions it may be necessary to give a resume of the facts of the case
Chunni Lal Bhatiya had two sons Sudesh and Mahesh and a daughter Smt
Sarla On 1491969 Chunni Lal executed a registered deed of gift in respect of 110 bighas in favour of his son Sudesh
A month later another deed of gift was executed in favour of his son Sudhir
So far as these two gifts are concerned as they were made before the amendment of the Ceiling Act their validity was beyond question and they are not the subject matter of any dispute in the present case
On January 28 1972 Chunni Lal executed a gift in respect of 80 bighas in favour of his grand daughter Sonia daughter of Mahesh It appears that a serious misfortune had befallen Chunni Lal in that he lost his two sons Sudesh and Mahesh who were serving in the Air Force and died in two different air crashes
As Chunni Lal wanted to make sufficient provision for his grandsons and grand daughter he executed the three gifts
The gift executed in favour of Sonia is the subject matter of the dispute in the instant case
The Prescribed Authority held that as the gift was made after the due date ie 2411971 as prescribed by sub section 6 of section 5 the transfer would have to be ignored
Against the decision of the Prescribed Authority the appellant filed an appeal before the District Judge being the Appellate Authority and assailed the finding of the Prescribed Authority
The District Judge after hearing the parties came to a clear finding that the gift was a bona fide one having regard to the circumstances in which the transfer was made and merely because it was executed after the due date 2411971 it could not be held to be invalid
Thereafter the State of UP filed a writ petition in the High Court which was allowed following a Division Bench decision of its Court in Fateh Mohammad vs District Judge which had held that a deed of gift not being a transfer for consideration had to be ignored under the provisions of the Act
Hence this appeal before us
The finding of the District Judge that the gift was a bona fide one has not been challenged by Mr Rana appearing for the respondent who however argued that the said gift itself was not covered by the Explanations laid down in the proviso to the said sub section 6 of section 5 of the Act
Thus the only question for determination in the instant case is the legal effect of the prohibition contained in sub section 6 and clause b of its proviso
In order to 244 understand the scope and ambit of sub section 6 and its proviso it may be necessary to extract the relevant portions of sub section 6 and Explanations concerned 6
In determining the ceiling area applicable to a tenure holder any transfer of land made after the twenty fourth day of January 1971 which but for the transfer would have been declared surplus land under this Act shall be ignored and not taken into account Provided that nothing in this sub section shall apply to   b a transfer approved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure holder or other members of his family
Explanation I For the purposes of this sub section the expression transfer of land made after the twenty fourth day of January 1971 includes a a declaration of a person as a co tenure made after the twenty fourth day of January 1971 in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty fourth day of January 1971 b any admission acknowledgement relinquishment or declaration in favour of a person to the like effect made in any other deed or instrument or in any other manner Explanation II The burden of proving that a case falls within clause b of the proviso shall rest with the party claiming its benefit
 The substantive provision which is contained in sub section 6 clearly provides that any transfer after the 24th of January 1971 would have to be ignored and not taken into account in determining the surplus area
Clause b of the proviso to sub section 6 hereinafter referred to as clause b of the proviso  however carves out an exception to the general rule contained in sub section 6 and 245 Explanation II places the burden of proving the fact that the case falls within the protection of clause b of the proviso on the party relying on the transfer and claiming its benefit
A careful analysis of clause b of the proviso would reveal that it requires the following conditions to be fulfilled before a transfer can seek its protection 1 that the transfer must be in good faith 2 that it must be proved to be in good faith to the satisfaction of the Prescribed Authority 3 that it should be for adequate consideration and under an irrevocable instrument and 4 that it should not be in the nature of a benami transaction for immediate or deferred benefit of the tenure holder or other members of his family
It is manifest that if these conditions are satisfied and proved to the satisfaction of the Prescribed Authority then the burden which lies on the claimant under Explanation II would have been discharged and the transfer would not be ignored but would fall under the protective umbrella contained in clause b of the proviso
It may be noticed that the legislature in its wisdom has neither defined the word transfer  in any of the definitions of the Act nor has clarified it
The primary object of the Act is to prevent the tenure holders from evading the Law of Ceiling by making fictitious transfers even by registered documents either before or after the due date so as to evade the provisions of the Act and thus frustrate the very object and the social purpose for which the Act had been passed
In these circumstances therefore the word transfer  has obviously been used by the legislature in the general sense of the term as defined in the Transfer of Property Act which is the statute that governs all transfers of movable or immovable properties
In other words the word transfer  being a term of well known legal significance having well ascertained incidents the legislature did not think it necessary to define the term transfer  separately
Similarly the word consideration  also being a term commonly used to denote contracts sales and transactions has been used in the same sense that is to say as defined by section 2d of the Contract Act
It is well settled that whenever the legislature uses certain terms or expressions of well known legal significance or connotation the courts must interpret them as used or understood in the popular 246 sense
In the case of CIT Andhra Pradesh vs Ms Taj Mahal Hotel Secundrabad this Court while laying down guidelines for holding how a particular expression has been defined observed as follows Now it is well settled that where the definition of a word has not been given it must be construed in its popular sense if it is a word of every day use
Popular sense means that sense which people conversant with the subject matter with which the statute is dealing would attribute to it
Lord Atkinson in Keats vs Lewis observed as follows In the construction of a statute it is of course at all times and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed and to the evils which as appears from its provisions it was designed to remedy
If the words are capable of one meaning alone then it must be adopted but if they are susceptible of wider import we have to pay regard to what the statute or the particular piece of legislation had in view
 These observations are fully applicable to the present Act which has for its object remedying the evil of evading the ceiling law by the large landholders by executing sale deeds or other instruments so as to escape the consequences of the law
In Union of India vs Sankal Chand Himatlal Sheth  Anr
Chandrachud J as he then was observed as follows The normal rule of interpretation is that the words used by the legislature are generally a safe guide to its intention
Lord Reid in Westminster Bank Ltd vs Zang observed that no principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in the Act
 Applying such a rule this Court observed in section Narayanaswami vs G Panneerselvam AIR 247 at 2290 that where the statute s meaning is clear and explicit words cannot be interpolated   But if the provision is clear and explicit it cannot be reduced to a nullity by reading into it a meaning which it does not carry Against this background we have now to consider the real intention of the words transfer for adequate consideration as used in clause b of the proviso
The High Court has held that although the deed of gift is a transfer but as it is a transfer without any consideration therefore such a transfer does not fulfil one of the essential ingredients mentioned in clause b of the proviso namely that it should be for consideration
The High Court has further held that its view is reinforced by the word adequate  which qualifies the word consideration  which completely rules out a transfer in the nature of a gift
The High Court was of the view that a transfer of property by way of a gift being a purely gratuitous transfer made out of love and affection or for the spiritual benefit of the donor falls completely beyond the ambit of clause b of the proviso and therefore has to be ignored under the provisions of the said sub section 6 of section 5 of the Act
Mr Kacker appearing for the appellant assailed the view taken by the High Court on the ground that the High Court has given a very restricted meaning to the term transfer for adequate consideration  by limiting the import of the word consideration 
He argued in the first place that a gift cannot be said to be a transfer without consideration because even love and affection spiritual benefit or other factors of similar nature may provide sufficient consideration for the gift
Secondly it was argued that even if a gift was a transfer without consideration and was intended to be excluded by clause b of the proviso then there should have been an express indication of the same in the provisions of clause b of the proviso by expressly excluding gifts
Another facet of this argument advanced before us by Mr Kacker was that as gift has not been expressly excluded by clause b of the proviso we should be persuaded to hold that the conditions regarding adequate consideration would not apply to a gift as a gift was a transfer without consideration and if other conditions were satisfied a gift would also fall within the purview of clause b of the proviso
We have given our anxious consideration to the arguments put forward 248 by Mr Kacker and although the arguments are extremely attractive yet we find ourselves unable to agree with the same
To begin with it may be necessary to dwell on the concept of gift as contemplated by the Transfer of Property Act and as defined in various legal dictionaries and books
To start with Black s Law Dictionary Fourth Edition defines gift thus A voluntary transfer of personal property without consideration
A parting by owner with property without pecuniary consideration
A voluntary conveyance of land or transfer of goods from one person to another made gratuitously and not upon any consideration of blood or money
 A similar definition has been given in Webster s Third New International Dictionary Unabridged where the author defines gift thus Something that is voluntarily transferred by one person to another without compensation a voluntary transfer of real or personal property without any consideration or without a valuable consideration distinguished from sale
 Emphasis ours Volume 18 of Words  Phrases Permanent Edition defines gift thus A gift  is a voluntary transfer of property without compensation or any consideration
A gift  means a voluntary transfer of property from one person to another without consideration or compensation Emphasis ours In Halsbury s Laws of England Third Edition Volume 18 while detailing the nature and kinds of gift the following statement is made A gift inter vivos a may be defined shortly as the transfer of any property from one person to another gratuitously
Gifts then or grants which are the eighth method of transferring personal property are thus to be distinguished from each other that gifts are always gratuitous grants are upon some consideration or equivalent 249 Thus according to Lord Halsbury s statement the essential distinction between a gift and a grant is that whereas a gift is absolutely gratuitous grant is based on some consideration or equivalent
Similarly in Volume 38 of Corpus Juris Secundum it has been clearly stated that a gift is a transfer without consideration and in this connection while defining the nature and character of a gift the author states as follows A gift is commonly defined as a voluntary transfer of property by one to another without any consideration or compensation therefor
Any piece of property which is voluntarily transferred by one person to another without compensation or consideration
A gift is a gratuity and an act of generosity and not only does not require a consideration but there can be none if there is a consideration for the transaction it is not a gift
 It is therefore clear from the statement made in this book that the concept of gift is diametrically opposed to the presence of any consideration or compensation
A gift has aptly been described as a gratuity and an act of generosity and stress has been laid on the fact that if there is any consideration then the transaction ceases to be a gift
Before closing this aspect of the matter we might also refer to the definition of consideration given in various books
Black s Law Dictionary defines consideration  thus Consideration is not to be confounded with motive
Consideration means something which is of value in the eye of the law moving from the plaintiff either of benefit to the plaintiff or of detriment to the defendant
 This is the view expressed in 2 QB 851
Similarly at p61 in the same volume the words adequate consideration  have been defined thus One which is equal or reasonably proportioned to the value of that for which it is given
Fair and reasonable under circumstances Emphasis ours Webster s Third New International Dictionary Unabridged defines consideration  thus Something that is legally regarded as the equivalent or return given or suffered by one for the act or promise of another 250 And the word adequate  has been defined in the same volume at page 25 thus Legally sufficient such as is lawfully and reasonably sufficient Similarly in words and Phrases Permanent Edition volume 2 the word adequate  has been defined at p545 thus Adequate  means fully equal to requirements or occasions commensurate but in its primary and more popular significance nothing can be said to be adequate  which is not equal to what is required suitable to the case or occasion fully sufficient proportionate and satisfactory And when used to qualify consideration it has been defined thus in the same volume at p545 Fair consideration in money or money s worth is consideration which under all circumstances is honest reasonable and free from suspicion whether or not strictly adequate  or full  Emphasis supplied Adequate Consideration  has been further defined as follows in the same volume at p553 Adequate consideration generally is one which is a fair equivalent in value for benefit obtained   Adequate consideration  required in action for specific performance merely means that contract price must be substantially just and fair valuation under all circumstances Emphasis supplied In Volume 17 of Corpus Juris Secundum p420 421 and 425 the import of consideration  has been described thus Various definitions of consideration are to be found in the textbooks and judicial opinions
A sufficient one as 251 stated in Corpus Juris and which has been quoted and cited with approval is a benefit to the party promising or a loss or detriment to the party to whom the promise is made  
At common law every contract not under seal requires a consideration to support it that is as shown in the definition above some benefit to the promisor or some detriment to the promisee   
There is a sufficient consideration for a promise if there is any benefit to the promisor or any detriment to the promisee 
It may be laid down as a general rule in accordance with the definition given above that there is a sufficient consideration for a promise if there is any benefit to the promisor or any loss or detriment to the promisee
 The gist of the term consideration  and its legal significance has been clearly summed up in section 2d of the Contract Act which defines consideration  thus When at the desire of the promisor the promisee or any other person has done or abstained from doing or does or abstrains 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
 From a conspectus therefore of the definitions contained in the dictionaries and the books regarding a gift or an adequate consideration the inescapable conclusion that follows is that consideration  means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee
Similarly when the word consideration  is qualified by the word adequate  it makes consideration stronger so as to make it sufficient and valuable having regard to the facts circumstances and necessities of the case
It has also been seen from the discussions of the various authorities mentioned above that a gift is undoubtedly a transfer which does not contain any element of consideration in any shape or form
In fact where there is any equivalent or benefit measured in terms of money in respect of a gift the transaction ceases to be a gift and assumes a different colour
It has been rightly pointed out in one of the books referred to above that we should not try to confuse the motive or the purpose of making a gift with the consideration which is the subject matter of the gift
Love affection spiritual benefit and many other 252 factors may enter in the intention of the donor to make a gift but these filial considerations cannot be called or held to be legal considerations as understood by law
It is manifest therefore that the passing of monetary consideration is completely foreign to the concept of a gift having regard to the nature character and the circumstances under which such a transfer takes place
Furthermore when the legislature has used the word transfer  it at once invokes the provisions of the Transfer of Property Act
Under section 122 of the Transfer of Property Act gift is defined thus  Gift  is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee
Such acceptance must be made during the lifetime of the donor and while he is still capable of giving
If the donee dies before acceptance the gift is void
 Thus section 122 of the Transfer of Property Act clearly postulates that a gift must have two essential characteristics 1 that it must be made voluntarily and 2 that it should be without consideration
This is apart from the other ingredients like acceptance etc
Against the background of these facts and the undisputed position of law the words transfer for adequate consideration  used in clause b of the proviso clearly and expressly exclude a transaction which is in the nature of a gift and which is without consideration
Love and affection etc may be motive for making a gift but is not a consideration in the legal sense of the term
As regards the argument of Mr Kacker that if the legislature intended to exclude gifts clause b of the proviso should have expressly said so the answer is very simple
Every legislature has its own technical or legal device to express its intendment
Some legislatures may have chosen to expressly exclude gift as Mr Kacker says but that is not the only method of conveying the legislative intent
There may be other methods or devices by which the legislative intent can be expressed namely by using such expressions which would expressly or by necessary intendment exclude a particular transaction
This method seems to have been adopted by the legislature in enacting clause b of the proviso
In fact the legislature has made its intention clear that gift is excluded by qualifying the word consideration  by the adjective adequate 
Assuming that love and affec 253 tion spiritual benefit or similar other factors may amount to a consideration for the gift the word adequate  is wholly inapplicable to and inconsistent with the concept of a gift because it is impossible to measure love and affection the sentiments or feelings of the donor by any standard yardstick or barometer
The words adequate consideration  clearly postulate that consideration must be capable of being measured in terms of money value having regard to the market price of the property the value that it may fetch if sold the value of similar lands situated in the vicinity so on and so forth
In the instant case therefore in our opinion the legislature by using the word adequate  to qualify the word consideration  has completely ruled out and excluded gift from the ambit of clause b of the proviso
In these circumstances therefore the argument of Mr Kacker that by not expressly excluding gift clause b of the proviso includes gift cannot be accepted particularly in the face of the clear and unambiguous language used by clause b of the proviso in describing the nature of the transaction as one for adequate consideration
We now deal with the second limb of the argument of Mr Kacker that as in the case of a gift there is no question of a consideration we should hold that the 3rd part of clause b of the proviso which contains the words for adequate consideration  is inapplicable and ignore the same
This argument is diametrically opposed to the well known rule of interpretation that courts in interpreting statutes must not interpolate or legislate
It is well settled that a legislature does not waste words without any intention and every word that is used by the legislature must be given its due import and significance
In the instant case the words adequate consideration  have undoubtedly a well recognised concept and as indicated above the intention was to exclude any transaction which is not for adequate consideration
Not to speak of a gift but even if a sale is found to be bona fide but the consideration is inadequate for instance where the property has been sold for a nominal price or below the market value the transaction would fall beyond the protection given by clause b of the proviso
Our attention has been drawn by Mr Kacker to a single Bench decision by Banerji J in Fateh Singh vs State of Uttar Pradesh  Ors where the learned Judge had taken the view that the definition of a transfer given in clause b of the proviso included a gift because a gift also could not be said to be a transfer without consideration even though 254 consideration may not be weighed in terms of money
The learned Judge in taking this view had obviously fallen into error of confusing what was the motive or the reason for the gift as being a legal consideration of it
It has already been pointed out that in considering the nature of a gift one should not confuse the motive which may be love and affection or spiritual benefit with valuable consideration which has to be either in the shape of a money compensation or equivalent of the same
It is true that in every gift the donor has a particular motive and objective or a reason to part with his property in favour of the donee the reason being in some cases love and affection where the gift is in favour of a relation or friend or spiritual benefit in other cases but this will be the immediate motive for making the gift and cannot be regarded as a consideration for the gift because the very concept of gift is based on a purely gratuitous consideration
The Division Bench of the Allahabad High Court in the case referred to above has rightly overruled the view of Banerji J on this count
In fact the matter has been considered by other High Courts who have consistently taken the view that a gift is a transfer without consideration love and affection being only the motive for making the transfer
In Debi Saran Koiri  Anr
vs Nandalal Chaubey and Ors
while elucidating the nature and character of a gift Sahay J made the following observations Now section 122 TP Act defines gift as a transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee To my mind consideration in section 122 TP Act means valuable consideration and not consideration in the shape of conferring spiritual benefit to the donor
If valuable consideration be not the consideration referred to in section 122 I fail to understand how any gift can be made without consideration at all
There must be some sort of consideration in every gift for instance a consideration of an expectation of spiritual or moral benefit or consideration of love and affection
Such considerations are not considerations contemplated in section 122
The consideration there contemplated must be valuable consideration that is consideration either of money of money s worth
Emphasis supplied 255 In Kulasekaraperumal vs Pathakutty Thalevanar  Ors
Jagadisan J made the classic observations which may be extracted thus A gift is essentially a gratuitous transfer
Complete absence of consideration marks the transfer as a gift and differentiates it from a grant
 The learned Judge has rightly pointed out that complete absence of consideration is the main hallmark which distinguishes a gift from a grant or for that matter other transactions which may be for valuable or adequate consideration
We find ourselves in complete agreement with the observations made by Jagdisan J in Kulasekaraperumal s case supra and Sahay J in Debi Saran s case supra which correctly represent the character and nature of the gift as contemplated by law
Banerji J in Fateh Singh s case supra seems to have relied heavily on Explanation I of sub section 6 of section 5 of the Act which refers to a declaration of a tenure holder made in a suit or any admission acknowledgement relinquishment etc made in any other deed or instrument in order to reinforce his conclusion that clause b of the proviso did not exclude a gift
With due respect here the learned Judge completely failed to appreciate the scope of clause b of the proviso and Explanation I
It is well settled that an Explanation merely widens the scope of the main section and is not meant to carve out a particular exception to the contents of the main section
Thus even if the words relinquishment admission or declaration  are used in Explanation I the use of such words do not absolve the party concerned from proving the essential ingredients laid down in clause b of the proviso namely that the transfer should be executed in good faith and should be for adequate consideration
Whatever be the nature of the declaration acknowledgement relinquishment adequacy of consideration has to be proved in any case
Thus in our view the Division Bench was fully justified in overruling the view of Banerji J in regard to the interpretation of the Explanation also
Finally we would like to mention that the matter is no longer res integra but is fully covered in principle by a decision of this Court in Tulsidas Kilachand vs The Commissioner of Income tax Bombay City 1 where Hidayatullah J speaking for the Court observed as follows It remains to consider whether there was a adequate consideration for the transfer
Reliance has been placed 256 only upon love and affection
The words adequate consideration denote consideration other than mere love and affection which in the case of a wife may be presumed
When the law insists that there should be adequate consideration and not good consideration it excludes mere love and affection
They may be good consideration to support a contract but adequate consideration to avoid tax is quite a different thing
To insist on the other meaning is really to say that consideration must only be looked for when love and affection cease to exist Emphasis supplied It would thus appear that this Court clearly held that the words adequate consideration  completely exclude the concept of love and affection and this decision appears to be on all fours with the facts of the present case
Realising this predicament Mr Kacker submitted that the words adequate consideration  used in the Income Tax Act denote a different texture
Mr Kacker argued that it is not permissible to interpret or use an expression in one Act as having the same meaning in another Act which is of a different kind
Of course there can be no dispute with this proposition but then the Act as also the Income Tax Act have both used the words adequate consideration  which as we have already held are terms of well known legal significance having a well recognised popular sense and hence they would convey the same meaning and import whenever used in other statutes unless a contrary intention appears from the language employed by the legislature in the statute
Moreover the object of the Income Tax Act as also the present Act seems to be more or less identical
Whereas the object of the Income Tax Act in enacting section 163b which is extracted below is to circumvent and prevent a growing tendency on the part of the assessees to avoid or reduce tax liability by means of settlements 163 a b so much of the income of any person or association of persons as arises from assets transferred otherwise than for adequate consideration to the person or association by such individual for the benefit of his wife or a minor child or both
 257 In the instant case also the avowed object of sub section 6 of section 5 of the Act is to prevent the large landholders from evading the ceiling law by executing transfers instruments or gifts so as to reduce their surplus area
Where the two statutes have a common and identical object then the legal terms used in one statute must be given the same meaning in the other
It cannot be said that the words adequate consideration  appearing in sub section 6 of section 5 of the Act do not take their colour from the context but are in conformity with the main object of the Act to prevent evasion of the ceiling law by large tenure holders in anticipation of the passing of the Ceiling Law
For these reasons therefore the argument of Mr Kacker on this score must be rejected
We therefore hold that in view of the interpretation placed by this Court on the words adequate consideration  which fully applies to the present case and to the same language employed in sub section 6 of section 5 of the Act a gift is not only impliedly but expressly excluded by the Act
In the Division Bench decision of the Allahabad High Court referred to above after a consideration of a large number of authorities the following observations were made The Legislature while enacting the UP Imposition of Ceiling on Land Holdings Act was alive to the provisions of the Transfer of Property Act dealing with the transfer of immovable property
the terms transfer  sale mortgage  and lease  have not been defined in the Act
Therefore these terms must have been used only in the sense in which they have been used in Transfer of Property Act
If the Legislature intended to use those terms in a different sense and with a different connotation it would have defined those terms in the Act
But that has not been done
The legislature however thought that there may be genuine and bona fide transfers for consideration
To protect such tenure holders and other transfers proviso b to sub section 6 of section 5 of the Act was enacted
It saved transfers for adequate consideration
Gift is a gratuitous transfer and there is no consideration which obviously means valuable consideration
If transfer for love and affection is taken to be a transfer for consideration then the purpose of the Act would be 258 completely defeated as the tenure holders would transfer their land by gift after 24th January 1971
 We fully endorse the observations made by the Division Bench which lay down the correct law on the subject and we overrule the decision of Banerji J in Fateh Singh s case supra
Lastly it was urged by Mr Kacker that this is an extremely hard case where the grand father of the donee wanted to make a beneficial provision for his grand daughter after having lost his two sons in the prime of their life due to air crash accidents while serving in the Air Force
It is true that the District Judge has come to a clear finding that the gift in question is bona fide and has been executed in good faith but as the gift does not fulfil the other ingredients of the section namely that it is not for adequate consideration we are afraid however laudable the object of the donor may have been the gift has to fail because the genuine attempt of the donor to benefit his granddaughter seems to have been thwarted by the intervention of sub section 6 of section 5 of the Act
This is undoubtedly a serious hardship but it cannot be helped
We must remember that the Act is a valuable piece of social legislation with the avowed object of ensuring equitable distribution of the land by taking away land from large tenure holders and distributing the same among landless tenants or using the same for public utility schemes which is in the larger interest of the community at large
The Act seems to implement one of the most important constitutional directives contained in Part IV of the Constitution of India
If in this process a few individuals suffer severe hardship that cannot be helped for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr
As this was the only point raised before us we find no merit in the same
For the reasons given above we hold that the High Court was right in allowing the writ petition in respect of the gift in question
The appeal fails and is accordingly dismissed but without any order as to costs
PBR Appeal dismissed


Summary:
Sub section 6 of section 5 of the UP Imposition of Ceiling on Land Holdings Act 1960 as it stood at the relevant time provided that in determining the ceiling area any transfer of land made after January 24 1971 should be ignored and not taken into account
Clause b of the proviso to sub section 6 which carves out an exception states that the sub section shall not apply to a transfer proved to the satisfaction of the Prescribed Authority to be in good faith and for adequate consideration under an irrevocable instrument
Explanation II to this proviso places the burden of proof that a case fell within clause b of the proviso is on the party claiming its benefit
On January 28 1972 the donor gifted away certain lands in favour of his grand daughter the appellant daughter of a pre deceased son
The gift having been made after the prescribed date the Prescribed Authority ignored the gift for purposes of section 5 6 of the Act
On appeal the District Judge gave a finding in favour of the appellant holding that the gift was bona fide having regard to the circumstances in which it was made and that it could not be held invalid merely because it was executed after the due date of January 24 1971
Purporting to follow one of its earlier decisions the High Court held that a gift not being a transfer for consideration had to be ignored under the provisions of the Act and that a gift being a gratuitous transfer made out of love and affection fell outside the purview of clause b of the proviso
On behalf of the appellant it was contended that a gift could not be said to be a transfer without consideration because even love and affection may 240 provide sufficient consideration and hence the condition regarding adequate consideration would not apply to a gift
Dismissing the appeal  HELD It is a well settled rule of construction of statutes that where the definition of a word has not been given in an enactment it must be construed in its popular sense if it is a word of every day use that is the sense in which people conversant with the subject matter with which it deals would attribute to it
Similarly if the language used is clear and explicit the provision cannot be reduced to a nullity by reading into it a meaning which it does not carry
246B In the instant case therefore the word transfer being a term of well known legal significance with well ascertained incidents the legislature did not consider it necessary to define it separately
It is used in the sense in which it is used in the Transfer of Property Act
245 G CIT Andhra Pradesh vs Ms Taj Mahal Hotel Secunderabad and Union of India vs Sankal Chand Himatlal Sheth and Anr  applied
Keats vs Lewis referred to
A conspectus of the meaning of the term gift is that it is a transfer which does not contain an element of consideration in any shape or form
Where in respect of a gift there is a benefit measurable in terms of money the transaction ceases to be a gift and assumes a different colour
Yet another salient feature of a gift is that love affection and many other factors may constitute the motive for the gift and may enter into the intention of the donor making a gift but none of these can be held to be legal consideration as understood by law
251 G H 252F Consideration means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee
When the term consideration is qualified by the word adequate it makes it sufficient and valuable having regard to the facts circumstances and necessities of the case
251 F The word transfer for adequate consideration used in clause b of the proviso excludes a transaction which is in the nature of a gift and which is without consideration
252 E The argument that if the legislature intended to exclude gifts clause b of the proviso would have expressly said so and by not excluding it must be deemed to have included a gift is without force particularly in the face of the clear and unambiguous language of the proviso
Every legislature has its own technical device to express its intendment
Express exclusion is not the only method of conveying the legislative intent there may be other methods or devices by which a legislature expresses its intent namely by using expressions which would exclude a particular transaction by necessary intendment
This is what is done in enacting clause b of the proviso
252 G H 241 The legislature has made its intention clear that a gift is excluded by qualifying the word consideration with the adjective adequate
252 H By using the word adequate to qualify the word consideration the legislature has ruled out gifts from the ambit of clause b of the proviso
253 C The words adequate consideration clearly postulate that consideration must be capable of being measured in terms of money having regard to the market price of the property the value that it may fetch if sold the value of similar lands situate in the vicinity and so on
253 B The argument that since in the case of a gift there is no question of consideration the words for adequate consideration in the 3rd part of clause b of the proviso are inapplicable and should therefore be ignored is opposed to the well known rule of interpretation that Courts while interpreting statutes must not legislate
A legislature does not use words without any intention and every word used by the legislature must be given its due import
The intention of the legislature in using the words adequate consideration is to exclude any transaction which is not for adequate consideration
Even if a sale is bona fide if to but consideration is inadequate the transaction would fall beyond the protection of clause b of the proviso
253 E F Debi Saran Koiri and Anr
vs Nandlal Chaubey and Ors
AIR 1929 Patna 591 and Kulasekaraperumal vs Pathakutty Thalevanar and Ors
AIR 1961 Madras 405 approved The words adequate consideration carry a well known legal significance and therefore convey the same meaning and import in whichever statute they are used unless a contrary intention appears from the language employed by the legislature in a particular Act
256 E F Tulsidas Kilachand vs The Commissioner of Income tax Bombay City I   referred to Fateh Mohammed vs District Judge Civil Writ Petition No 915 of 1975 decided on 10 7 78 overruled
An explanation merely widens the scope of the main section and is not meant to carve out a particular exception to the main section
The words admission acknowledgment relinquishment or declaration used in Explanation I do not absolve the party concerned from proving that the transfer should be executed in good faith and for adequate consideration
256 E F However laudable the object of the donor in gifting the property to his grand daughter particularly in the circumstances of this case may be and whatever hardship might ensue to the donee by applying the provision the gift fails if it does not fulfil the other essential requirements of the section
The act was enacted to implement one of the Directives contained in Part IV of the Constitution and if in this process a few individuals suffer that cannot be helped for individual interests must yield to the larger interests of the community
258 D F 242