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Mt. Brij Devi Vs. Shiva Nanda Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1939All221
AppellantMt. Brij Devi
RespondentShiva Nanda Prasad and ors.
Excerpt:
- - giving effect to this specific provision and reading the deed as a whole we are satisfied that it conferred upon the donee full proprietary title to the land which was the subject of the conveyance. act, are perfectly general......ancestor on 11th december 1914, in favour of jain bulaqi shankar. the material terms of the gift-deed are as follows:i have made a gift to pt. jain bulaqi shankar for construction of the temple of bhaironji, and residence, and removing my possession from the property gifted i have put the donee in proprietary possession and he will have the right to construct a temple and a quarter... the donee or his successors will have no right to transfer or mortgage it; if he does, the transfer will be invalid, and i and my successors will have a right to get the gift revoked.2. following upon this gift in his favour, the donee was put in possession of the property. he did not however succeed in building the temple or a residential quarter for his own occupation. on 14th april 1927 however he.....
Judgment:

Thom, C.J.

1. This is a defendant's appeal in a suit in which the plaintiffs claimed possession of certain property which had formed the subject of a deed of gift executed by the plaintiffs' ancestor on 11th December 1914, in favour of Jain Bulaqi Shankar. The material terms of the gift-deed are as follows:

I have made a gift to Pt. Jain Bulaqi Shankar for construction of the temple of Bhaironji, and residence, and removing my possession from the property gifted I have put the donee in proprietary possession and he will have the right to construct a temple and a quarter... The donee or his successors will have no right to transfer or mortgage it; if he does, the transfer will be invalid, and I and my successors will have a right to get the gift revoked.

2. Following upon this gift in his favour, the donee was put in possession of the property. He did not however succeed in building the temple or a residential quarter for his own occupation. On 14th April 1927 however he made a waqf of the property in favour of defendant 1, that is he transferred the property which had been gifted to him by the plaintiffs' ancestor on 11th December 1914. In view of this action of the donee which they alleged to be contrary to the provisions of the deed of gift in. his favour, the plaintiffs, the successors of the donor, instituted the suit out of which this appeal arises for the recovery of the property gifted. They alleged that under the circumstances in virtue of the provision in reference to revocation contained in the deed of gift they were entitled to have the transfer in favour of defendant 1 declared invalid and further to possession of the property. The learned Munsif in the trial Court dismissed the suit. The plaintiff appealed and the learned Civil fudge held that in view of the terms of the deed of gift of 11th December 1914 the plaintiffs us the successors of the donor were entitled to possession of the property, the defendants appealed and the learned Judge before whom the matter came in (second appeal in this Court has upheld the decision of the lower Appellate Court. It was contended for the appellant that the transfor in her favour was valid and that the condition in the deed of gift of 11th December 1914, restraining the donee's right of transfer, was repugnant to the initial gift in his favour and therefore inoperative. Learned Counsel in support of this contention referred to the provisions of Sections 10, 11 and 12, T.P. Act. Section 10 enjoins:

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 these claiming under him.

3. It was urged that in the present case there had been an absolute transfer of property to defendant 2, and that that transfer had later in the deed of gift been subject to a condition absolutely restraining the transferee and his successors from parting with or disposing of his interest in the property arid that accordingly in view of the provisions of the aforementioned Section, the condition was void. The condition being void, it was contended, the transfer in favour of defendant 1, the appellant, was valid and could not be set aside, nor were the plaintiffs entitled to revoke the gift of 11th December 1914 in favour of defendant 2. Whether or not Section 10, T.P. Act, applies to the particular facts of this case depends upon whether the deed of gift of 11th December 1914 effected an out and out transfer of the property in dispute in favour of defendant 2. We have already referred to the material provisions of that deed. We would observe that by the deed the donor removes himself from proprietary possession of the property and puts the donee, defendant 2, in proprietary possession. Giving effect to this specific provision and reading the deed as a whole we are satisfied that it conferred upon the donee full proprietary title to the land which was the subject of the conveyance. In these circumstances it would appear that the condition restraining the donee's right of alienation is void. Learned Counsel for the plaintiffs-respondents contended however that the condition aforementioned was not void in view of the terms of Section 126, T.P. Act. Section 126 is in the following terms:

The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor, a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.

4. It was urged on behalf of the respondents that in the present instance the right to revoke depended upon the alienation by the donee of the land gifted and not upon the will of the donor and that therefore the plaintiffs being the successors of the donor were entitled to revoke the gift. In support of this contention learned Counsel for the plaintiffs referred to the case in Makund Prasad v. Rajrup Singh (1907) 4 A.L.J. 708. In that case a Bench of this Court held that

where the defendants made a gift of certain property to the plaintiffs on the condition that the land would be liable to be taken back in the event of the plaintiffs' transferring it, the power of revocation reserved was not repugnant to the original transfer under Sections 10 and 12, T.P. Act.

5. In the course of their judgment Banerji and Aikman JJ. referred to the provisions of Section 126 of the Act which they have held apply to the case where the donor reserved the right of revocation in the event of transfer by the donee. With great respect we are unable to agree with this decision. We would observe that in their judgment; they give no reason for holding that the provisions of Sections 10 and 12, T.P. Act, do not apply to a gift subject to a right of revocation upon alienation of the property gifted by the donee. The provisions of Sections 10 and 12, T.P. Act, are perfectly general. They refer to all transfers, transfer by gift, sale or otherwise. Section 126 appears in a chapter which is headed 'Of Gifts'. Sections 10 and 12 appear in Ch. 2 headed 'Of Transfers of Property by Act of Parties.' In this chapter the conditions which may be imposed and may not be imposed upon the transfer of moveable and immovable property are enumerated. Section 10 refers specifically to condition restraining alienation by the transferee. The provision of the Section declaring such a condition void is made to apply to every transfer of proprietary interest in immovable property. One exception only is made in the Section itself, namely in the case of a lease, where the condition is for the benefit of the lessor or these claiming under him. Now Section 126 permits a donor in certain circumstances to impose a condition entitling the donor to revoke the gift. This Section, it was contended by the learned Counsel for the plaintiffs, was in equally general terms and therefore conferred upon the donor in the present instance the right to restrain alienation on the part of the donee, such alienation being 'an event happening' not dependent upon the will of the donor. We are unable to sustain this argument. It appears to us that the condition imposed upon a donee must, before it can be valid, be consistent with the general principles in regard to conditions in transfers contained in Ch. 2 of the Act, and in particular in Section 10 thereof.

6. In this connexion we would refer to certain observations of the Privy Council in Ram Sarup v. Bela (1884) 6 All. 313. The facts of that case are somewhat different from the facts of the present case but their Lordships in their judgment make certain general observations on the question as to the validity of certain conditions. They were dealing with the right of a donor to revoke a gift made by him in favour of his wife. The gift appears to have been made subject to the condition that the children of the marriage should be brought up as Christians, but as this condition had not been complied with the donor claimed the right to revoke the gift. Their Lordships observed that:

Although on making a gift to them the donor might attach or purport to attach such a condition, it would be a condition only and subject to the law of conditions.

7. 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 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.

8. The question for decision in the present case is whether the donor in the deed of gift of 11th December 1914 imposed a condition upon the donee repugnant to the interest which he created by the deed in his favour. We have already stated that in our view the deed of gift conferred the title of ownership upon the donee. Under the deed he took full proprietary interest. In these circumstances we hold that the condition restraining the donee's right of alienation was a condition repugnant to the estate created in him. The condition therefore is invalid and the donee, defendant 2, was entitled to transfer the property to defendant 1. The plaintiffs, the successors of the donor, are not entitled in the circumstances to revoke the deed and to resume possession of the property which was conveyed by the deed to defendant 2. In the result we allow the appeal, set aside the decree of this Court and of the lower Appellate Court, and restore the decree of the trial Court. The defendant-appellant is entitled to her costs throughout.


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