-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 30 OF 2002 1. Anthony Dias, major in age, 2. Miss Maria Dias, Aged about 27 yrs. 3. Master Michael Dias, Aged about 20 years, All r/o. H. No. 849, Batorda, Curtorim, Salcete, Goa. V e r s u s 1. Smt. Ana Francisca Mascarenhas, wife of late Joao Filipe Mascarenhas, major in age, housewife. 2. Shri Joao Piedade Mascarenhas son of late Joao Filipe Mascarenhas, resident of H. No. 828, Batora, Curtorim, Salcete, Goa. (Amendment carried out as per Order dt. 25.7.2002) 3. Smt. Maria Mascarenhas Major in age, d/o. Late Joao Filipe Mascarenhas, All r/o. H. No. 828, Battorda, Curtorim, Salcete, Goa. 4. Smt. Rosa Filipe Mascarenhas (deceased) D/o. Late Constantino Mascarenhas, r/o. Curtorim, Salcete, Goa. At present, r/o. Pratiksha Nagar, Chawl no. 7 Vakola Bridge, Santa Cruz (East) Bombay 55. (Respondent no.4 deleted as per Order dated 28.02.07). -2- 5. Shri Constancio Rosario Mascarenhas, s/o.Late Joao Filipe Mascarenhas, aged about 34 yrs., Occupation service, (at present working in Gulf Country) 6. Shri Joseph Stanley Mascarenhas, s/o. Late Joao Filipe Mascarenhas, Aged about 32 years, Occupation Service, (at present working in Gulf Country) both r/o. H. No. 828, Batorda, Curtorim, Salcete, Goa. …... Respondents Mr. C. A. Coutinho, Advocate for the Appellant. Mr. C. Mascarenhas, Advocate for the Respondents. Coram :- F. M. REIS, J Date : 27 th September, 2011. ORAL JUDGMENT Heard Shri C. A. Coutinho, learned Counsel appearing for the Appellants and Shri C. Mascarenhas, learned Counsel appearing for the Respondents. 2. The above Second Appeal was admitted by Order dated 03.10.2006 on the following substantial questions of law : 1. When the deed of gift and acceptance clearly contained the clause that the donor reserved for herself the right to hypothecate the gifted property in the event of her acquiring loan for her sustenance and maintenance right to sell the property gifted, whether Section 126 of the Transfer of Property Act would operate and the deed of gift would be held to be revocable to that extent ? 2. Whether the clause in the gift deed, though did not say that the gift deed shall be revocable, whether the donor was at liberty to sell half of the property as covenanted in the deed of gift i.e. whether the deed of gift was -3- revocable to the extent of half at the instance of the donor in terms of Section 126 of the Transfer of Property Act ? 3. Whether the Additional District Judge was right in not holding that the gift deed which reserves right to the donor to sell half of the property in the event of her acquiring loan for sustenance and maintenance is a bad covenant to be read as though it did not exist when Sec. 126 of the Transfer of Property Act very clearly so permits and illustration (b) to Sec. 126 very clearly illustrates the same ? 3. During the course of the hearing of the Appeal, both the learned Counsel have pointed out that another substantial questions of law arises in the present Appeal on the basis of the fact that the counter claim filed by the Appellants came to be rejected by the Appellate Court by the impugned Judgment. As such, by consent, an additional substantial question of law was framed in the above Appeal : 4. Whether the First Appellate Court wrongly held that Respondent no.5 before it, had no right to execute deed of sale dt. 28th March, 1977 without the consent of other co-owners on account of pre-emption right to purchase the property by the Appellants before it and for that reason the counter claim should have been disallowed when there was no foundation for such a claim in the plaint, no such ground was raised in the memo of appeal and no issue framed by the Trial Court on that count? 4. Before dealing with the substantial questions of law referred to herein above, it would be appropriate to consider the nature of the dispute which curl out from the pleadings and evidence of the respective parties. The original Respondent no.1, who has now expired, filed the suit for declaration on the ground that there exists a property known as “Vertente De Batora”, situated at Curtorim, Salcete, Goa, enrolled as a whole in the Office of Revenue under Matriz no. 1703 -4- and described as a whole under no. 25.225 new series in the Office of the Land Registration and under survey no. 238/14 admeasuring an area of 825 square metres including a house therein having specific boundaries as mentioned at Para 3 of the plaint. It is further the case of the Respondent that by Deed of Gift and Acceptance dated 25.03.1968, the original Defendant no.5/Respondent no.4 herein Smt. Rosa Filipe Mascarenhas, gifted the said property to her husband late Joao Filipe Mascarenhas reserving for herself the usufructuary right over the suit property and the right to the half of the house existing therein which was originally a mud house. The said Gift was duly accepted by the said late Joao Filipe Mascarenhas and the same is registered in the office of the Sub-Registrar of Salcete at Margao, Goa, under no. 349 at pages 5053. It is further the case of the said Respondents that thereafter by Deed of Sale dated 28.03.1977, the Defendant nos. 6 and 7, Respondent nos. 5 and 6 herein, purchased from the Respondent no.4 her usufructuary right to the suit property as also right to the suit house. It is further their case that subsequent to the Deed of Gift, the husband of Respondent no.1 late Shri Joao Filipe Mascarenhas, together with the Respondent nos. 1 and 2 and the Respondent nos. 5 and 6, were the lawful owner in possession of the said property. It is further the contention of the said Respondents that they came to know that the Appellant no.1 is claiming to be the owner of part of the suit property of the eastern side having an area of 319 square metres purchased by virtue of a Sale Deed dated 28.03.1977. It is further their case that when they made inquiries with the Respondent no.4, they were informed that she was not aware about the said Sale Deed. It is further their contention that the Sale Deed dated 28.03.1977 which was otherwise duly registered before the Sub-Registrar of Salcete, is null and void ab-initio as, according to them, the Respondent no.4 was not entitled to -5- execute the Sale Deed in favour of the Appellant no.1 herein. It is further the contention of the Respondents that as the said Sale Deed was null and void, the suit came to be filed praying for a declaration to the effect that the Sale Deed dated 28.03.1977 is void and ineffective. 5. The Appellants filed their written statement disputing the claim put forward by the Respondents. The Appellants also stated that the Sale Deed dated 01.10.1996 relied upon by the said Respondents was null and void ab-initio as according to them, the Respondent no.4 herein had no right to the property as she had sold a part of the half right reserved in the Deed of Gift to the Appellants by Deed of Sale dated 28.03.1977 and that the Appellants were put in possession of an area of 319 square metres of the said property sold by her. The claim of the Respondents that they were in possession of the suit property was disputed by the Appellants in their written statement. The Appellants also filed their counter claim to declare the said Sale Deed as null and void. 6. Shri Coutinho, learned Counsel appearing for the Appellants has assailed the impugned Judgment essentially on the ground that the Gift Deed executed in favour of the husband of Respondent no.1 was a conditional Gift , whereby the donor, who is the Respondent no.4 herein, had reserved her right to sell for her maintenance the half of the rustic portion of the land located in the rear portion in case of her requirements. The learned Counsel has further pointed out that in exercise of her rights under the said Gift Deed, the Respondent no.4 had executed the Sale Deed in favour of the Appellants dated 28.03.1977. The learned Counsel further pointed out that considering the provisions of Section 126 of the -6- Transfer of Property Act, the Gift Deed to the extent of such reservation is null and void and stands excluded from the gifted portion in favour of the husband of the Respondent no.1. The learned Counsel further submitted that the lower Appellate Court has misconstrued the Deed of Gift to come to the conclusion that the Respondent no.1 were the co-owners of the suit property and, as such, execution of such Sale Deed without the consent of the husband of the Respondent no.1 was a nullity. The learned Counsel further submitted that the lower Appellate Court has also misinterpreted the Gift Deed with regard to the said condition which is quite specific and the finding of the lower Appellate Court to the effect that such condition is vague is totally misplaced. The learned Counsel further submitted that the lower Appellate Court has misconstrued the provisions of Section 126 of the Transfer of Property Act and has come to the erroneous conclusion that the Sale Deed executed in favour of the Appellants is null and void. In support of his submission, he has taken me through the illustration to Section 126 of the Transfer of Property Act and pointed out that the situation in the present case squarely falls within such illustration. 7. On the other hand, Shri C. Mascarenhas, the learned Counsel appearing for the Respondent, has supported the impugned Judgment. The learned Counsel firstly pointed out that as per the Gift Deed what was reserved by the donor/Respondent no.4, was only half of the rear portion and not half of the whole property located on the rear side as sought to be claimed by the Appellants and, a such, the Deed of Sale to that extent is null and void. The learned Counsel further pointed out that in view of Section 10 of the Transfer of Property Act, the question of such reservation would not arise and, in any event, in view of the said -7- provisions of Transfer of Property Act, such condition restricting the enjoyment of the property is null and void. Dealing with the contention of the learned Counsel appearing for the Appellants to the effect that the condition comes squarely within the scope of Section 126 of the Transfer of Property Act, Shri Mascarenhas, learned Counsel appearing for the Respondent, has pointed out that Section 10 controls Section 126 of the Transfer of Property Act and, as such, considering that the condition would restrict the alienation on the part of the donee/husband of the Respondent no.1, such condition is null and void within the provisions of Section 10 of the Transfer of Property Act. The learned Counsel has taken me through the impugned Judgment and pointed out that the lower Appellate Court has rightly appreciated the evidence on record and has come to the conclusion that the Sale Deed executed in favour of the Appellants is null and void. In support of his submission, the learned Counsel has relied upon AIR 1982 PATNA 32 in the case of Jagdeo Sharma vs. Nandan Mahto & Ors. and the Judgment of this Court reported in 2005 (2) ALL M R 157 in the case of Vyankati Raghobaji Parbat & anr. vs. Sauvarsha w/o. Vinod Deshpande & Ors. 8. Dealing with the contention of Shri Mascarenhas, the learned Counsel appearing for the Respondent to the effect that Section 10 would control the provisions of Section 126 of the Transfer of Property Act, I find that the same cannot be accepted. The Judgment of the Patna High Court relied upon by the learned Counsel appearing for the Respondent in the case of Jagdeo Sharma vs. Nandan Mahto & Ors. (supra), is not at all applicable to the facts and circumstances of the case. The facts in the said case were that there was absolute bar for the transfer of properties. In the present case, there is no such absolute bar -8- but there is only a condition that in case of a specific eventuality, the donor/Respondent no.4 would be entitled to sell a specific portion of her property gifted. On perusal of the Deed of Gift, there is no dispute that pursuant thereof though the property mentioned therein has been gifted, nevertheless it is an admitted position that the usufruct/enjoyment of the property was reserved in favour of the donor. In such circumstances, the effect of such reservation would have to be considered. The Apex Court in the Judgment reported in 1997(2) S.C.C. 255 in the case of Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker, has held at para 7 thus : “7. It would thus be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property, together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes the absolute owner of the property. The question is whether the gift in question had become complete under Section 123 of the TP Act? It is seen from the recitals of the gift deed that Motilal Gopalji gifted the property to the respondent. In other words, it was a conditional gift. There is no recital of acceptance nor is there any evidence in proof of acceptance. Similarly, he had specifically stated that the property would remain in his possession till he was alive. Thereafter, the gifted property would become his property and he was entitled to collect mesne profits in respect of the existing rooms throughout his life. The gift deed conferred only limited right upon the respondent- donee. The gift was to become operative after the death of the donor and he was to be entitled to have the right to transfer the property absolutely by way of gift or he would be entitled to collect the mesne -9- profits. It would thus be seen that the donor had executed a conditional gift deed and retained the possession and enjoyment of the property during his lifetime. The recitals in the cancellation deed is consistent with the recitals in the gift deed. He had expressly stated that the respondent had cheated him and he had not fulfilled the conditions subject to which there was an oral understanding between them. Consequently, he mentioned that the conditional gift given to him was cancelled. He also mentioned that the possession and enjoyment remained with him during his lifetime. He stated, “I have to execute immediately this deed of cancelling the conditional gift deed between us. Therefore I hereby cancel the conditional gift deed dated 15-5-1965 of Rs 9000 in words rupees nine thousand presented at Serial No. 2153 on 15-5-1965 in the Office of the Sub-Registrar, Baroda for registration. Therefore, the said conditional gift deed dated 15-5-1965 is hereby cancelled and becomes meaningless. The property under the conditional gift has not been and is not to be transferred in your name”. Thus he expressly made it clear that he did not hand over the possession to the respondent nor did the gift become complete during the lifetime of the donor. Thus the gift had become ineffective and inoperative. It was duly cancelled. The question then is whether the appellant would get the right to the property? It is not in dispute that after the cancellation deed dated 9-6-1965 came to be executed, duly putting an end to the conditional gift deed dated 15-5-1965, he executed his last Will on 17-5-1965 and died two days thereafter.” -10- Considering the said Judgment of the Apex Court, the contention of the learned Counsel Shri Mascarenhas based on the assumption that ownership of the property was already conveyed to the Respondents cannot be accepted. 9. Besides that it is well settled by this Court as well as by the Apex Court that a person is entitled to execute a conditional gift. In fact, Shri Mascarenhas does not dispute the said proposition. His only contention is that there is vagueness in the said condition which cannot be enforced and, in any event, considering that it is imposing a restriction in the absolute enjoyment of the property, the same has to be considered to be null and void. I am not persuaded to accept the said contention of Shri Mascarenhas. On perusal of the Deed of Gift and considering the provisions of the Transfer of Property Act and the law in force, there is no bar for a donor to execute a conditional gift and as such the condition reserved in favour of the Respondent no.4 who is the donor are acceptable in law and, consequently, the lower Appellate Court was not justified to come to the conclusion that the said condition is vague and the same cannot be implemented. As such, I find that the lower Appellate Court has misconstrued the Deed of Gift and has come to an erroneous conclusion that the Sale Deed executed in favour of the Appellant is null and void. It is also to be noted that the Appellant is stated to be a nephew of the said Respondent no.4 and considering the relationship between the parties, it is not unusual that the Respondent no.4 would prefer to sell the land to the Appellant in case of the contingency as stipulated in the said Deed of Gift. The fact that such contingency arose has not been disputed nor any evidence has been adduced on that count. -11- 10. On going through the Deed of Gift, the next contention of Shri Mascarenhas, learned Counsel appearing for the Respondent to the effect that half of the rear portion was reserved for the purpose of sale cannot be accepted. On the plain reading of the Deed of Gift, the donor/Respondent no.4 has clearly stipulated that in case of a contingency wherein the donee requires finance for the purpose of her maintenance, she would be at liberty to sell half portion of the rustic property which is located at the rear side of the existing house. This implies that what was reserved by the Respondent no.4 was the half portion of the whole rustic portion portion of the property which is located on the rear side of the existing house. There is no dispute that what has been conveyed by the deceased Respondent no.4 is on the rear side of the house admeasuring an area of 318 square metres which is much less than half of the rustic portion which totally admeasures an area of 875 square metres. Considering the said aspect, the contention of Shri Mascarenhas, the learned Counsel appearing for the Respondent, that the area which has been sold to the Appellant cannot be referred to the area which has been reserved by the Respondent no.4, cannot be accepted. 11. In view of the above, the first three substantial questions of law are answered accordingly. It is held that in view of the condition stipulated in the Deed of Gift, Section 126 of the Transfer of Property Act would operate and the Deed of Gift is held to be revocable to such extent. It is further held that the donor/Respondent no.4 was at liberty to sell half of the rustic property located on the rear side of the existing house to the extent sold in favour of the Appellant no.1 herein. The findings of the lower Appellate Court to the effect that the Deed of Gift would have to be read without the said condition cannot be sustained and deserves -12- to be quashed and set aside. 12. Dealing with the additional substantial question of law framed herein above, the lower Appellate Court whilst allowing the Appeal has held that the counter claim would not be maintainable as according to the learned Judge as the property was in co-ownership with the Respondent no.1, the Respondent no.4 was not entitled to sell the same. The counter claim filed by the Appellant is to declare the Deed of Sale dated 01.10.1996 as null and void in view of the execution of the Sale Deed in favour of the Appellant. Considering the findings arrived at herein above, the said Sale Deed would not effect the right of the Appellant to the extent of the Deed of Sale dated 28.03.1977. The additional substantial question of law is answered accordingly. 12. In view of the above, I pass the following : ORDER (i) The impugned Judgment and Decree dated 24.10.2001 passed in RCA no.86/2000 is quashed and set aside. (ii) The suit filed by the Respondent stands dismissed. (iii) The counter claim filed by the Appellant is partly allowed to the extent stated herein above. (iv)The Appeal stands disposed of accordingly with no orders as to costs. F .M. REIS, J. arp/*