1. This appeal is brought by the defendant against an appellate decree of District Judge, Maharaj Kishore reversing the decree ofthe trial Court dismissing the plaintiff's suitpossession.
2. Balmukand plaintiff purchased the 1/5th share of the house in dispute at a court sale and then he made a gift of his share to Mangtu Ram defendant 1 who was his 'prohat'. He alleges that the gift was conditional in that the sale or mortgage of the property by the donee was prohibited and, therefore, the alienation made by the donee Mangtu Ram in favour of Giani Ram was ineffectual and the plaintiff was entitled to the return of the property gifted by him. In the deed of gift made by Balmukand there was a condition in the following words:
'But the donee will not have the power to alienate the gifted property by sale or by mortgage or in any other way'.
3. The learned District Judge has held that to transactions of this kind Section 126, T. P. Act is applicable. It provides that the donor and the 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 ......... at the mere will of thedonor, is void.
The case which is now before me is of a different nature. An absolute gift has been made in favour of a 'prohat' but it is subject to a condition restricting the alienation. In cases such as this the condition is void. It has been so held in 'Dugdale v. Dugdale', (1888) 38 Ch. D. 176(A), and the law is so stated at P. 756 of Mulla's Transfer of Property Act:
'A gift is a transfer of property and is therefore subject to the rules enacted in Chap. II of this Act. Thus if an absolute gift is made, subject to a condition restricting alienation the condition would be void'.
4. Mr. Shambhu Lal Puri also submits that the case really falls under Section 10, T. P. Act by which a condition to which property transferred is subject and the condition being an absolute restraint upon transfer is void. At p. 91 of Mulla's Transfer of Property Act it is said that under this section a condition which absolutely restrains the power of alienation is void.
Such conditions against restraint on alienation have been held to be void in 'Rosher v. Rosher', (1884) 26 Ch D 801 (B), & In re, 'Elliot Kelly y. Elliot', (1896) 2 Ch. 353(C). The Allahabad High Court in 'Mt. Brij Devi v. Shiva Nanda Prasad', AIR 1939 All. 221 (D), have also held that a condition such as the one which is contained in the present document is void.
5. Tne learned District Judge has reliedupon a judgment of the Rangoon High Court in'Ma Yin Hu v. Ma Chit May', AIR 1929 Rang 226(E), but therefore the considrations were different and the facts are distinguishable. Inmy opinion, the condition in the present casewas void and was, therefore not available to thedonor. I would, therefore snow this appeal, setaside the decree of the District Judge and restorethat of the trial Court, but the parties will beartheir own costs throughout.