Supreme Court of India
SRIDHAR & ANR.versusN. REVANNA & ORS.
- Citation
- 2020 INSC 165
- Decided
- 11 February 2020
- Disposal
- Dismissed
- Bench
- ASHOK BHUSHAN
Holding
A condition that absolutely restrains alienation is void under Section 10 of the Transfer of Property Act, and Section 13 does not apply as the gift was made to a living donee, therefore the donee could lawfully alienate the property.
Summary
The grandfather of the parties gifted a property to his grandson, N. Revanna, on 5 June 1957, inserting a condition that the donee and any younger brothers born thereafter could not alienate the property. Revanna later sold the property to four other persons in 1985. The plaintiffs, minor sons of Revanna, sued for a declaration that they were the absolute owners and that the sales were void. The Supreme Court examined whether the anti‑alienation condition was void under Section 10 of the Transfer of Property Act and whether the gift deed was void under Section 13 for being for the benefit of unborn persons. The Court held that a condition absolutely restraining alienation is void under Section 10 and that the gift was not for an unborn person, so Section 13 did not apply. Consequently, Revanna had the right to alienate the property and the plaintiffs were not entitled to any relief. The appeal was dismissed.
Issues considered
- Whether a condition in a gift deed that restrains the donee and his younger brothers from alienating the property is void under Section 10 of the Transfer of Property Act, 1882.
- Whether the gift deed is void under Section 13 of the Transfer of Property Act for being made for the benefit of an unborn person.
- Whether the donee (defendant No.1) had a legal right to sell the gifted property.
Legislation cited
- Transfer of Property Act, 1882s. 10, s. 13
Subjects
Transfer of Property Actcondition restraining alienationgift deedvoid conditionSection 10Section 13property alienationminor plaintiffsale deed validity
Judgment
[2020] 3 S.C.R. 723 723
SRIDHAR & ANR. A
v.
N. REVANNA & ORS.
(Civil Appeal No. 1209 of 2020)
FEBRUARY 11, 2020 B
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Transfer of Property Act, 1882 – ss. 10, 13 – Two gift deeds
were executed in favour of defendant no.1 by his grandfather, who
was also great grandfather of plaintiffs, with a condition that donee
C
and his younger brothers hereafter had no right to alienate the
scheduled property – Defendant no.1 executed three sale deeds in
favour of defendant nos. 2-5 – Defendant nos. 6 & 7 were tenants
of the premises – Suit was filed by appellants-plaintiffs against
defendants inter alia for declaration that the alienations in favour
of defendants 2-5 are null and void – Dismissed – High Court partly D
decreed the suit – Held: One of the conditions in the gift deed was
that “the donee or his younger brothers who may be born hereafter
have no right to alienate the schedule property in any manner
whatsoever by way of sale, gift mortgage or otherwise” – s.10
expressly provides that where property is transferred subject to a
E
condition or limitation absolutely restraining the transferee or any
person claiming under him from parting with or disposing of his
interest in the property, the condition or limitation is void – Thus,
the condition in the gift deed that defendant no.1 shall not alienate
the property is a void condition – Further, the gift was not in favour
of any unborn person but in favour of defendant no.1 who was a F
minor, five years old – Condition was put on the donee and his
younger brothers who may be born after the execution of the gift
deed – Condition put on person unborn is entirely different from
execution of gift deed in favour of a person who is not born – Thus,
gift clearly being in favour of defendant no.1 and not in favour of
G
unborn person, s.13 also has no application in the facts of the
present case – High Court erred in holding that defendant no.1
was not entitled to transfer the property received by gift deed –
Plaintiffs were not entitled for declaration sought in the suit.
H
723
724 SUPREME COURT REPORTS [2020] 3 S.C.R.
A Dismissing the appeal, the Court
HELD: 1.1 One of the conditions which was enumerated in
the gift deed was that “the donee or his younger brothers who
may be born hereafter have no right to alienate the schedule
property in any manner whatsoever by way of sale, gift mortgage
B or otherwise”. [Para 14][730 E-H]
1.2 Section 10 expressly provides that where property is
transferred subject to a condition or limitation absolutely
restraining the transferee or any person claiming under him from
parting with or disposing of his interest in the property, the
C condition or limitation is void. According to Section 10 any
condition restraining the transferee the right of alienation is void.
A plain reading of Section 10 of Transfer of Property Act makes it
clear that the condition in the gift deed dated 05.06.1957 that
defendant No. 1 shall not alienate the property is a void condition.
A perusal of the gift deed indicates that the grandfather gifted
D the immovable property to his grandson. Gift was not in favour of
any unborn person rather gift was in favour of who was a minor,
five years old. The reference of donee and his younger brothers
or their male children was made while enumerating the conditions
as contained in the gift deed. The condition was put on the donee
E and his younger brothers who may be born after the execution of
the gift deed. The condition put on person unborn is entirely
different from execution of gift deed in favour of a person who is
not born. Thus, the gift was clearly a gift in favour of defendant
No.1 and not in favour of unborn person, thus, Section 13 has no
application in the facts of the present case. [Paras 17, 21][731 D-
F F; 733 D-G]
1.3 The High Court erred in holding that defendant No.1
was not entitled to transfer the property which was received by
gift deed dated 05.06.1957. The plaintiffs were not entitled for
declaration as sought for in the suit. [Para 25][735-C]
G
Smt. Brij Devi v. Shiva Nanda Prasad and others, AIR
1939 Allahabad 221; Smt. Prem Kali v. Deputy Director
H
SRIDHAR & ANR. v. N. REVANNA & ORS. 725
of Consolidation, Sitapur and others 2016 (116) ALR A
794; F.M. Devaru Ganapathi Bhat v. Prabhakar
Ganapathi Bhat (2004) 2 SCC 504 : [2003] 6 Suppl.
SCR 1265 – referred to.
Case Law Reference
AIR 1939 Allahabad 221 referred to Para 18 B
2016 (116) ALR 794 referred to Para 19
[2003] 6 Suppl. SCR 1265 referred to Para 22
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1209
of 2020. C
From the Judgment and Order dated 18.01.2012 of the High Court
of Karnataka at Bangalore in Regular First Appeal No. 69 of 2002.
Jayant Kumar Sud, Sr. Adv., B. Vishwanath Bhandarkar,
Sarbendra Kumar, Karunakar Mahalik, H.K. Naik, Suraj Prakash
D
Ahlawat, M. Umashankar, Naresh Kumar, Advs. for the Appellants.
S.S. Javali, Sr. Adv., P. R. Ramasesh, Abdul Azeem Kalebudde,
Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. E
1. This appeal has been filed by the plaintiffs against the judgment
dated 18.01.2012 of the High Court of Karnataka in Regular First Appeal
No. 69 of 2002 by which the High court partly allowed the Regular First
Appeal of the plaintiffs-appellants.
F
2. Brief facts of the case for deciding this appeal are:
The parties shall be referred to as described in the suit. One Shri
Muniswamappa, great grandfather of the plaintiffs and grandfather of
defendant No.1, was the absolute owner of the suit schedule property.
Shri Muniswamappa executed two gift deeds dated 05.06.1957 in favour
G
of defendant No.1, N. Revanna. The gift deed was executed by
Muniswamappa in favour of his grandson, N. Revanna. The gift deed
also contained a condition that donee and his younger brothers hereafter
had no right to alienate the scheduled property. Defendant No. 1, N.
Revanna executed sale deeds dated 07.10.1985, 08.10.1985 and
10.10.1985 in favour of defendant Nos. 2 to 5. Defendant Nos.6 and 7 H
726 SUPREME COURT REPORTS [2020] 3 S.C.R.
A were the tenants of the premises. Original Suit No. 11133 of 1995 was
filed by the plaintiffs-appellants against N. Revanna, defendant No.1,
vendees as defendant Nos. 2 to 5 and defendant Nos.6 and 7 in which
following reliefs have been claimed:
“PRAYERS:
B (a) to declare that the plaintiffs are the absolute owners of the
suit schedule properties or in alternative to declare that the
plaintiffs are the revert loners in interests of the suit schedule
properties;
(b) to declare the alienations in favour of defendants 2 to 5 by
C the first defendant dated 7.10.1985, 8.10.1985 and 10.10.1985
are null and void and set aside the same as the same is not
binding on these plaintiffs;
(c) to grant for permanent injunction restraining the defendants
2 to 5 from taking possession of the suit schedule properties
D from the defendants 6 and 7 and also restraining the defendants
2 to 5 dismantling the suit schedule properties;
(d) to direct defendants 2 to 5 deliver the vacant possession of
properties comprised in item No.1 of the schedule properties
which they have taken possession from Sri Subramanayam
E and Sri Selvaraj; and
(e) award costs and such other reliefs as this Hon’ble Court may
deems fit in the circumstances of the case.”
3. The case of the plaintiffs was that N. Revanna received the
suit properties by registered gift deed dated 05.06.1957 from his
F
grandfather, Muniswamappa and as per the gift deed defendant No.1
and his younger brothers who may be born had no right to alienate the
suit schedule property. It was pleaded that sale deed executed by defendant
No.1 is void and the plaintiffs being sons of defendant No.1 and great
grandsons of Muniswamappa are the absolute owners of the property.
G Both the plaintiffs were minors and the suit was filed by their next friend
and guardian paternal grandmother, Smt. Jayamma.
4. Defendant No.1 filed written statement supporting the case of
the plaintiffs stating that as he was in dire need of money and proceeded
under the bona fide belief that there was no legal impediment to sell the
H property. Defendant No.7 also filed written statement. Defendant
SRIDHAR & ANR. v. N. REVANNA & ORS. 727
[ASHOK BHUSHAN, J.]
Nos. 2 to 5 filed a common written statement questioning the bona fide A
of the plaintiffs and their guardian. They pleaded that the plaintiffs have
been set up by the vendor. Defendant No.1 acting in addendum in seeking
to avoid the sale on a specious plea that there was a condition that the
property could not have been alienated by defendant No.1. Trial Court
framed the following five issues:
B
“1] Whether the plaintiff proves that plaintiffs have got absolute
right over the suit schedule properties?
2] Whether the plaintiff proves that defendant No.1 has no right
to alienate suit schedule property in favour of Defendant No.
2 and Defendant No. 5 and that said alienation is not binding C
on the plaintiffs?
3] Whether the defendants prove that condition of restraint on
alienation is void in law?
4] Whether the plaintiffs are entitled to the relief sought?
D
5] What order or decree?”
5. Issue Nos. 1 and 2 were answered in negative and Issue No. 3
was answered in affirmative. The trial court held that the plaintiffs have
failed to prove that they have got absolute right over the suit schedule
property and they have also failed to prove that defendant No.1 had no
E
right to alienate the property. The suit of the plaintiffs was dismissed by
the trial court vide its judgment and decree dated 21.11.2001.
6. A Regular First Appeal was filed by the plaintiffs in the High
Court. The High Court held that the trial court was clearly in error in
holding that the condition imposed on defendant No.1 was void. The
F
High Court took the view that the benefits that defendant No.1 received
by virtue of sale deed had to be given back to the plaintiffs. The High
Court partly decreed the suit by passing the following order:
“The plaintiffs’ condition that the property was worth multiple
times the sale price for which it was sold, is an unfortunate
circumstance. The interest of justice would demand that the G
plaintiffs be entitled to nothing more that what Revanna had
received under the sale Deeds. It is this alone which the plaintiffs
shall be entitled to and it is accordingly decreed that the plaintiffs
are entitled to the sale consideration received by Revanna under
the Sale Deeds. The plaintiffs are entitled to recover the same H
728 SUPREME COURT REPORTS [2020] 3 S.C.R.
A from defendant No. 1. Further, since defendant Nos. 2 to 5 were
equally responsible for creation of this circumstance, it would meet
the ends of justice if nominal costs are imposed on them, which in
the opinion of this court would be in the order of Rs. 25,000/-
payable to the plaintiffs, jointly; though in law, the condition was
not to be held void, in which event, though the plaintiffs could then
B
claim ownership to the property, having regard to the sequence
of events and the present circumstance, the claim of the plaintiffs
to recover the property necessarily has to be denied. The order of
temporary injunction granted earlier stands vacated.”
7. The plaintiffs aggrieved by the judgment of the High Court
C have come up in this appeal.
8. Shri Jayant Kumar Sud, learned senior counsel appearing for
the appellants submits that the High Court even after deciding all the
issues in favour of the plaintiffs erred in law in not declaring the sale
deeds null and void and returning the property to the plaintiffs. It is
D submitted that when the High Court held that the condition in the gift
deed executed by the Muniswamappa in favour of defendant No. 1 that
donee shall not be entitled to alienate the schedule property was held to
be a valid condition the sale deeds executed by defendant No. 1
automatically became void and were liable to be declared so. He submits
E that defendant No. 1 in the gift deed executed by his grandfather had
only a life stake who could not have alienated any of the properties.
9. Learned counsel for the appellant further submits that the gift
deed executed in favour of defendant No.1 on 05.06.1957 was not a
valid gift deed. It being gift deed in favour of defendant No.1 and for the
F benefit of unborn person was void under Section 13 of the Transfer of
Property Act.
10. Shri S.S. Javali, learned senior counsel, appearing for the
respondents refuting the submissions of the learned counsel for the
appellants contends that the gift deed dated 05.06.1957 was a valid gift
G deed and was not hit under Section 13 of the Transfer of Property Act.
He further submits that the condition of gift deed dated 05.06.1957 that
donee shall not be eligible to alienate the property, was a void condition.
He has placed reliance on Section 10 of the Transfer of Property Act,
1882. Learned counsel for the respondents submits that the High Court
committed an error in holding that condition of non-alienation was not
H void.
SRIDHAR & ANR. v. N. REVANNA & ORS. 729
[ASHOK BHUSHAN, J.]
11. We have considered the submissions of the learned counsel of A
the parties and perused the records.
12. The short question to be considered and answered in this appeal
is “as to whether defendant No.1 had right under gift deed dated
05.06.1957 to alienate the suit properties”? The trial court has held that
the condition in the gift deed that the donee shall not be eligible to alienate B
the property was void and defendant No.1 has validly executed the sale
deeds in favour of defendant Nos. 2 to 5. The trial court has resultantly
dismissed the suit. The High Court had taken the contrary view that the
above condition of the gift deed was not void. Further, the High Court
did not annul the sale deed rather granted limited relief to the plaintiffs
that the plaintiffs are entitled to receive back the consideration which C
was received by defendant No.1 by execution of three sale deeds dated
07.10.1985, 08.10.1985 and 10.10.1985. The suit of the plaintiffs for rest
of the prayers was dismissed.
13. Before we proceed to consider the respective submissions, it
is necessary to look into the relevant portions of the gift deed dated D
05.06.1957. The gift deed was executed by Muniswamappa claiming to
be sole and absolute owner of the premises bearing Municipal No. 324
and 325. Defendant No.1, N. Revanna was a minor aged five years
represented by his father, a natural guardian, M. Narayanappa. The
relevant portion of the gift deed is as follows: E
“NOW THIS INDENTURE WITNESSETH that in
pursuance of the aforesaid agreement and in consideration of
extreme love and affection which the donor cherishes for the
donee his grandson and the donee’s, offspring’s and the donee’s
young brothers and their male offspring’s who may be born F
hereafter he the donor doth hereby grant, convey, makeover and
transfer by way of gift to the done above name the immovable
property described in the schedule hereunder given which bears
Municipal No. 324, Old Poor House Road Civil Station Bangalore,
to be taken by his as a gift subject to the conditions hereinafter
mentioned. G
The donor covenants with the donee, that on the date of
these presents, the property that is now endowed as a gift is free
from all encumbrances, liens, charges, attachments from Court
and lispardens and that he has absolute and unimpeachable right
H
730 SUPREME COURT REPORTS [2020] 3 S.C.R.
A to grant it as a gift and that no one else has any right to question
the same.
The donor has this day handed over possession of the
property hereby gifted to the donee, in accordance with Law which
the donee shall enjoy on and from this date, over which she can
B exercise all rights of ownership subject to the conditions detailed
hereinafter namely:-
1. The Donee or his younger brothers who may be born
hereafter have no right to alienate the schedule property
in any manner whatsoever by way of sale, gift mortgage
C or otherwise.
2. The donee or his younger brothers who may be born
hereafter shall enjoy the property during his or their life
time as the case may be and on his or their demise it
shall devolve on his or their male children then surviving
D who shall be at liberty to deal with the property
mentioned in the schedule hereunder in any mentioned
her their to do with unstructed gifts.
3. In case the Donee or his younger brother or brothers
who may be born hereafter die issue-less, the said
E property hereby gifted shall devolve on Sri
SOMESWARASWAMY of Sri Someswara Temple
Ulsoor Civil Station Bangalore, for the benefit of the
said Temple.”
14. The gift deed categorically states: “donor doth hereby grant,
F convey, makeover and transfer by way of gift to the donee above named
the immovable property described in the schedule hereunder”. The gift
deed in favour of the donor was absolute and who was to exercise rights
of ownership subject to the conditions detailed in the gift deed. One of
the conditions which was enumerated in the gift deed was that “the
donee or his younger brothers who may be born hereafter have no right
G to alienate the schedule property in any manner whatsoever by way of
sale, gift mortgage or otherwise”.
15. The gift deed further stated that “donee or his younger brothers
who may be born hereafter shall enjoy the property during his or their
life time as the case may be and on his or their demise it shall devolve on
H his or their male children then surviving who shall be at liberty to deal
with the property mentioned in the schedule hereunder in any manner”.
SRIDHAR & ANR. v. N. REVANNA & ORS. 731
[ASHOK BHUSHAN, J.]
16. The question to be answered is as to whether defendant No.1 A
who was gifted the schedule property had no right to alienate the schedule
property in any manner whatsoever. The reliance has been placed by
the counsel of the respondents on Section 10 of the Transfer of Property
Act which is to following effect:
“10. Condition restraining alienation.—Where property B
is transferred subject to a condition or limitation absolutely
restraining the transferee or any person claiming under him from
parting with or disposing of his interest in the property, the condition
or limitation is void, except in the case of a lease where the
condition is for the benefit of the lessor or those claiming under
him: C
Provided that property may be transferred to or for the
benefit of a women (not being a Hindu, Muhammadan or Buddhist),
so that she shall not have power during her marriage to transfer
or charge the same or her beneficial interest therein.”
D
17. Section 10 expressly provides that where property is transferred
subject to a condition or limitation absolutely restraining the transferee
or any person claiming under him from parting with or disposing of his
interest in the property, the condition or limitation is void. According to
Section 10 any condition restraining the transferee the right of alienation
is void. A plain reading of Section 10 of Transfer of Property Act makes E
it clear that the condition in the gift deed dated 05.06.1957 that defendant
No. 1 shall not alienate the property is a void condition.
18. Learned counsel for the respondents has rightly placed reliance
on the judgment of Allahabad High Court in Smt. Brij Devi vs. Shiva
Nanda Prasad and others, AIR 1939 Allahabad 221, wherein the F
High Court had occasion to consider Sections 10 and 126 of the Transfer
of Property Act. In the above case also gift deed came into consideration
which contained a condition that “The donee or his successors will have
no right to transfer or mortgage”. The Division Bench of the High Court
had laid down: G
“Now the law of conditions in regard to the transfer of
property is contained in Ch. 2 of the T.P. Act. No condition
therefore, in our judgment, imposed upon a donee can be valid if it
is inconsonant with the provisions of Section 10 of the Act. The
contention, of learned Counsel for the plaintiffs that Section 126
H
732 SUPREME COURT REPORTS [2020] 3 S.C.R.
A is an absolute exception to Section 10 and that in view of the
terms of the former Section the donor was entitled to impose a
condition entitling him to revoke upon any event happening including
an alienation by the donee, provided that event did not depend on
the will of the donor in our judgment is unsound. It is the duty of
the Court to give full effect to every Section of an enactment. We
B
see no difficulty in reconciling the provisions of Sections 10 and
126. Section 10 embodies the general principle that a transfer of
immovable property may not impose a condition restraining the
transferee from alienating the interest conveyed to him absolutely
except in the case of a lease where the condition is for the benefit
C of the lessor. This general provision, in our judgment, applies to all
transfers including gifts. Apart from the condition restraining
alienation by a lessee, there is no other exception.”
19. The Allahabad High Court in the subsequent judgment in Smt.
Prem Kali vs. Deputy Director of Consolidation, Sitapur and
D others, 2016 (116) ALR 794, followed the earlier judgment of the
High Court. In paragraph 15 following was laid down:
“15. A bare reading of Sections 10 and 126 of Act, 1882,
shows that Section 10 lays down that in a transfer, the condition
restraining alienation, cannot be inserted. Section 126 of Act, 1882
E lays down that on happening of certain condition, not depended
on the will of the donor, the gift can be suspended or revoked.
Present case is not covered under Section 126. According to the
respondent, gift can be conditional. But there is no question as to
whether a gift can be conditional but the real question is that
condition, which has been specifically prohibited under Section 10
F of Act, 1882 can be imposed in the gift or not. There is no reason
to hold that the condition which is specifically prohibited under
Section 10 of Act, 1882 is not applicable to gift. This question
came for consideration before various Courts in under noted cases
from time to time, viz Re Dugdale (1888) 38 Ch D 176; Nabob
G Amiruddaula Vs Nateri (1876) 6 Mad HC 356 (Mohomedan Law);
Anantha Vs Nagamuthu (1882) ILR 4 Mad 200; Ali Hasan Vs
Dhirja : (1882) ILR 4 All 518; Bhairo Vs. Parmeshri: (1885) ILR
7 All 516; Muthukamara Vs. Anthony (1915) ILR 38 Mad 867, 24
IC 120; Narayanan Vs Kannan (1884) 7 Mad 315, Brij Devi v.
Shiv Nanda Prasad:AIR 1939 All 221; Giani Ram Vs Balmakand
H
SRIDHAR & ANR. v. N. REVANNA & ORS. 733
[ASHOK BHUSHAN, J.]
:(1956) 58 Punj LR 114 : AIR 1956 Punj 255; Ramasamy and ors A
Vs. Wilson Machine Works AIR 1994 Madras 222 (NOC), Jagdeo
Sharma Vs. Nandan Mahto: AIR 1982 Pat. 32 and Gorachand
Mukherji Vs. Smt. Malabika Dutta: AIR 2002 Cal 26. This Court
has already taken the view that condition restraining donee from
alienation of gift, cannot be imposed and such a condition is void
B
under Section 10 of the Act, 1882. I respectfully agree with the
aforesaid view taken in Brij Devi (supra).
20. Now, we come to the submission of the learned counsel for
the appellants that gift deed was hit by Section 13 of the Transfer of
Property Act. Section 13 of the Transfer of Property Act provides:
C
“Section 13. Transfer for benefit of unborn person.—Where,
on a transfer of property, an interest therein is created for the
benefit of a person not in existence at the date of the transfer,
subject to a prior interest created by the same transfer, the interest
created for the benefit of such person shall not take effect, unless
it extends to the whole of the remaining interest of the transferor D
in the property.”
21. A perusal of the gift deed as noted above indicates that
Muniswamappa gifted the immovable property to his grandson, N.
Revanna. Gift was not in favour of any unborn person rather gift was in
favour of N. Revanna who was a minor, five years old. The reference E
of donee and his younger brothers or their male children was made
while enumerating the conditions as contained in the gift deed. The
condition was put on the donee and his younger brothers who may be
born after the execution of the gift deed. The condition put on person
unborn is entirely different from execution of gift deed in favour of a F
person who is not born. Thus, the gift was clearly a gift in favour of
defendant No.1 and not in favour of unborn person, thus, Section 13 has
no application in the facts of the present case.
22. Learned counsel for the appellants has placed reliance on the
judgment of this Court in F.M. Devaru Ganapathi Bhat vs. Prabhakar G
Ganapathi Bhat, (2004) 2 SCC 504, in support of his submission based
on Section 13 of the Transfer of Property Act. The gift deed which
came into consideration in the aforesaid case has been reflected in
paragraph 4 of the judgment which is to the following effect:
H
734 SUPREME COURT REPORTS [2020] 3 S.C.R.
A “4. In the gift deed, the donor retained Property Survey
No. 306 for her livelihood till demise. The contention is that on
true construction of the gift deed on demise of Mahadevi, the
appellant became the absolute owner of Property Survey No.
306. The respondent has no right over it. The answer would depend
upon the construction of the gift deed. The original gift deed is in
B
Kannada language. When translated in English, it reads as under:
“THIS DEED OF GIFT OF IMMOVABLE PROPERTIES
AND HOUSE in village is executed on this, the 9th day of
September, 1947, by Smt Mahadevi, w/o Subraya Bhat, aged about
25 years, occupation, housewife, belonging to Havyaka community,
C r/o Keramane, Yalugar village of Siddapur taluk, in favour of Devaru
Ganapathi Bhat, aged about 13 years, r/o Keramane, Yalugar village
of Siddapur taluk.
WHEREAS, I am the owner of the below-mentioned
immovable properties and house. In order to protect the interest
D of the below-mentioned properties and house, I am thinking to gift
all the properties by way of a gift to a suitable person. As you are
my brother’s son and also you have gained love and affection of
mine and also as the land and house were previously your ancestral
property, hence I have decided to gift the immovable property
E and house therein to you. ………………………………………..
In case any male children are born to your parents, you shall
enjoy the described immovable property and house with those
male children as a joint holder. Therefore, this deed of gift of
immovable properties, house etc. has been executed ……… .”
F 23. The gift deed in the above case was also in favour of Devaru
Ganapathi Bhat, aged about 13 years, this Court held that Section 13 has
no applicability to the facts of the above case. In paragraph 12 following
has been laid down:
“12. There is no ban on the transfer of interest in favour of
G an unborn person. Section 20 permits an interest being created
for the benefit of an unborn person who acquires interest upon his
birth. No provision has been brought to our notice which stipulates
that full interest in a property cannot be created in favour of an
unborn person. Section 13 has no applicability to the facts and
circumstances of the present case. In the present case, the donor
H
SRIDHAR & ANR. v. N. REVANNA & ORS. 735
[ASHOK BHUSHAN, J.]
gifted the property in favour of the appellant, then living, and also A
stipulated that if other male children are later born to her brother,
they shall be joint holders with the appellant. Such a stipulation is
not hit by Section 13 of the Act. Creation of such a right is
permissible under Section 20 of the Act. The respondent, thus,
became entitled to the property on his birth. In this view, there is
B
also no substance in the second contention.
24. The above judgment of this Court clearly supports the
submission of the learned counsel for the respondents that Section 13
has no application in the present case.
25. In view of the foregoing discussions, we are of the clear opinion C
that the High Court erred in holding that defendant No.1 was not entitled
to transfer the property which was received by gift deed dated
05.06.1957. The plaintiffs were not entitled for declaration as sought for
in the suit. There is no merit in the appeal. The appeal is accordingly
dismissed.
D
Divya Pandey Appeal dismissed.
E
F
G
H
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