caselaws.org
Supreme Court of India
Sridhar vs N. Revanna on 11 February, 2020Author: Ashok Bhushan
Bench: Ashok Bhushan, Navin Sinha
1
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 Regular First
Appeal of the plaintiffs-appellants.
2. Brief facts of the case for deciding this appeal
are:
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2020.02.11
15:21:17 IST
The parties shall be referred to as described in
Reason:
the suit. One Shri Muniswamappa, great grandfather of
2
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 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 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:
(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
3
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 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
4
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
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?
5
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 21.11.2001.
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 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:
6
“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
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
7
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 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 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
8
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 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 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 deeds in
favour of defendant Nos.2 to 5. The trial court has
resultantly dismissed the suit. The High Court had
9
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,
10
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.
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 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 with the
property mentioned in the schedule
hereunder in any mentioned her
their to do with unstructed gifts.
11
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 “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
12
at liberty to deal with the property mentioned 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 Transfer 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 subject to a condition or limitation
absolutely restraining the transferee or any person
claiming under him from parting with or disposing of
13
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 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
14
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 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 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 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
15
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 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:
16
“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 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 case.
17
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 deed 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 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
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
18
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 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
19
the Act. The respondent, thus, became
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 application in the
present case.
25. In view of the foregoing discussions, 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.
Comments