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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1209 OF 2020

(arising out of SLP (C) No. 7493 of 2014)

SRIDHAR & ANR. ...APPELLANT(S)

VERSUS

N. REVANNA & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

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 Re gular First

Appeal of the plaintiffs-appellants.

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

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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 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 ha d no

right to alienate the schedul ed 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 were the tenants of the

premises. Original Suit No.11133 of 1995 was filed by

the plaintiffs-appellants against N. Revanna,

defendant No.1, vendee s as defendant Nos.2 to 5 and

defendant Nos.6 and 7 in which following reliefs have

been claimed:

“PRAYERS:

(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 the first

defendant dated 7.10.1985, 8.10.1985

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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 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 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 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 p leaded 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.

Both the plaintiffs were minors and the suit was filed

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by their next friend and guardian paternal grandmother,

Smt. Jayamma.

4. Defendant No.1 filed written sta tement 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

property. Defendant No.7 also filed written statement.

Defendant Nos.2 to 5 filed a common written statement

questioning the bona fide of the plaintiffs and their

guardian. They pleaded that the plaintiffs ha ve been

set up by the vendor. Defendant No.1 acting in addendum

in seeking to avoid the sale on a sp ecious 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:

“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 a nd

that said alienation is not binding on

the plaintiffs?

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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?

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 ha ve 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 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 High Court took

the view that the benefit s 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:

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“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 pla intiffs 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 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 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 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

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deeds null and void and returning the property to the

plaintiffs. It is 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 done e

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 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 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

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gift deed dated 05.06.1957 was a valid gift 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 done e 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 void.

11. We have considered the submissions of the learned

counsel of 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 the property was void and

defendant No.1 has validly executed the sale deed s in

favour of defendant Nos.2 to 5 . The trial court has

resultantly dismissed the suit. The High Court had

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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 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 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:

“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 done his

grandson and the donee’s, offspring’s and

the donee’s young brothers and their male

offspring’s who may be born hereafter he

the donor doth hereby grant, convey,

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makeover and transfer by way of gift to the

done above name th e 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.

The donor covenants with the donee, tha t

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 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 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 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 who shall

be at liberty to deal w ith the

property mentioned in the schedule

hereunder in any mentioned her

their to do with unstructed gifts.

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3. In case the Donee or his younger

brother or brothers who may be

born hereafter die issue-less, the

said 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, 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

to alienate the schedule property in any manner

whatsoever by way of sale, gift mortgage or otherwise”.

15. The gift deed further stated that “done e 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 who shall be

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at liberty to deal with the property mentio ned in the

schedule hereunder in any manner”.

16. The question to be answered is as to whether

defendant No.1 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 Tr ansfer of

Property Act which is to following effect:

“10. Condition restraining alienation. —

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, except

in the case of a lease where the condition

is for the benefit of the lessor or those

claiming under him:

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.”

17. Section 10 expressly provides that where property

is transferred s ubject to a condition or limitation

absolutely restraining the transferee or any person

claiming under him from parting with or disposing of

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his interest in the property, the condition or

limitation is void . According to Section 10 any

condition restrainin g 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.

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 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:

“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

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Act. The contention, of learned Counsel for

the plaintiffs that Section 126 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 a n 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 see no difficulty in

reconciling the provisions of Secti ons 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 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 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 lays down that on

happening of certain condition, not

depended on the will of the donor, the gift

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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 Sect ion 10 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

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 :(1956) 58 Punj LR 114 : AIR 1956

Punj 255; Ramasamy and ors 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 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:

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“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 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 of donee

and his younger brothers or their male child ren 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 exe cution 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.

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22. Learned counsel for the appellants has placed

reliance on the judgment of this Court in F.M. Devaru

Ganapathi Bhat vs. Prabhakar Ganapathi Bhat, (2004) 2

SCC 504, in support of his submission based on Section

13 of the Transfer of Property Act. The gift de ed which

came into consideration in the aforesaid case has been

reflected in paragraph 4 of the judgment which is to

the following effect:

“4. In the gift deed, the donor retained

Property Survey No. 306 for her livelihood

till demise. The contention is th at 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

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, 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 of the

below-mentioned properties and house, I am

thinking to gift all the properties by way

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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 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……………….”

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 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 gifted the property

in favour of the appellant, then living,

and also stipulated t hat 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

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the Act. The respondent, thus, bec ame

entitled to the property on his birth. In

this view, there is 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 applicatio n in the

present case.

25. In view of the foregoing discussion s, we are of

the clear opinion 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.

......................J.

( ASHOK BHUSHAN )

......................J.

( NAVIN SINHA )

New Delhi,

February 11, 2020.