Case: SRIDHAR Vs. N. REVANNA

2. Brief facts of the case for deciding this appeal are:(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 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 Honble Court may deems fit in the circumstances of the case3. 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 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. Both the plaintiffs were minors and the suit was filed by their next friend and guardian paternal grandmother, Smt. Jayamma4. 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 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 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: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 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?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 right to alienate the property. The suit of the plaintiffs was dismissed by the trial court vide its judgment and decree dated 21.11.20016. 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 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 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 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 vacated7. The plaintiffs aggrieved by the judgment of the High Court have come up in this appeal.

Reasoning:
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 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 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 dismissedA 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 condition18. 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 mortgage21. 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 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 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 case23. 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 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 also no substance in the second contention24. 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 caseThe 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. Narayanappa17. 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 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