Full Judgment Text
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CASE NO.:
Appeal (civil) 4385 of 2001
PETITIONER:
F.M. Devaru Ganapati Bhat
RESPONDENT:
Prabhakar Ganapathi Bhat
DATE OF JUDGMENT: 19/12/2003
BENCH:
Y.K.Sabharwal & Dr.A.R.Lakshmanan
JUDGMENT:
J U D G M E N T
Y.K. Sabharwal, J.
Parties are brothers. The appellant/defendant is the elder brother. The
respondent/plaintiff is the younger brother. The suit for partition and possession
filed by the respondent claiming one-half share in suit properties has been decreed
by the trial court. The first appeal of the appellant has been dismissed by the High
Court by the impugned judgment.
The basis of claim in the suit was the gift deed dated 9th September, 1947
executed by Smt. Mahadevi, younger sister of Ganapathi, father of the parties.
When gift deed was executed, the appellant was a minor aged 13 years. At that
time, respondent was not born. In the year 1936, the suit properties were sold by
Ganapathi to his younger sister Mahadevi. The sale was effected due to some
helpless conditions of Ganapathi. Mahadevi was issueless. She enjoyed
properties from the year 1936 upto execution of the gift deed. The same
properties were gifted under the gift deed in question. The dispute in this appeal
is, however, restricted to one gifted property, namely, survey No.306. The
appellant is not disputing the claim of the respondent in respect of partition of
remaining properties. According to the appellant, property survey No.306 under
the gift deed was given to him absolutely and the respondent, on true construction
of the gift deed, has no right to claim partition of the said property. Alternatively,
it is contended that creation of interest in favour of the respondent who was not
born when the gift deed was executed is invalid in view of Section 13 of the
Transfer of Property Act, 1882 (for short, ’the Act’). Both these contentions have
not found favour with the trial court and the High Court.
Two questions that fall for consideration in this appeal are :
1. Construction of gift deed dated September 9, 1947; and
2. Validity of creation of interest in the property in question in favour of
respondent in view of Section 13 of the Act.
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,
House wife, 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
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properties and house, I am thinking to gift all the
properties by way 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. As described herein my malki right in
the below mentioned schedule immovable property,
house and the Betta land/Bena land and Kumki land,
etc., situated in Yelugar village of Keremane in
Siddapur Taluk within the jurisdiction/range of
Siddapur Sub-Registrar have been gifted and given to
you today. Henceforth neither myself nor anybody is
having right, title and interest in any manner over the
schedule immovable property and house etc. and you
have to enjoy this property as full owner. Therefore,
in future you have to pay and bear the Revenue, Tax,
Local Funds and repair the Government boundary
stones, etc. You have to enjoy and succeed to the
property as your own. Since you are a minor, the
schedule property immovable property and house are
to be cultivated/managed by your father Ganapathi
Devaru Bhat as the guardian of minor child and the
same is to be reserved for you till you attain the age of
majority. Among the property, I have retained the
property of Sy.No.306, area 1-6-0, Assessment 16-0-0,
for my livelihood till my demise and after my death,
this property will be your and nobody else shall have
right or title over it. 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.
Description/Scheduled of immovable property
situated at Yalugar Village of Siddapur Taluk."
The execution of the gift deed is not in question. The validity of the gift
deed is also not in question except to the extent indicated hereinbefore.
The rule of construction is well settled that the intention of the executor of a
document is to be ascertained after considering all the words in their ordinary
natural sense. The document is required to be read as a whole to ascertain the
intention of the executant. It is also necessary to take into account the
circumstances under which any particular words may have been used.
Now, keeping in view the above principles, let us consider the admitted
facts of the present case. The donor purchased all properties from her brother on
account of his helpless conditions. When the gift was made, the parents of the
parties were alive. The properties were ancestral. The donor was issueless. The
appellant was minor. The respondent was not born. Date of birth of the
respondent is 9th November, 1949.
We would now revert to the gift deed. It clearly shows the intention of the
donor that if after execution of the gift deed any male children are born, the
properties should be enjoyed by the appellant with them as joint holder. With
reference to property survey No.306, the words "this property will be your and
nobody else shall have right and title over it" cannot be read in isolation. These
words are immediately followed by the words that "in case any male children are
born to your parents, you shall enjoy the described immovable property and house
with those male children as joint holder". No exception is made in respect of
property survey No.306. When the donor stated that ’nobody else shall have right
or title over it’, she was only reiterating what was stated earlier that she had
decided to gift the immovable property and house to the appellant since at that
time, the appellant was the only male child of the brother of the donor. There are
no such qualifying words in the gift deed to show an intention of the donor to
exclude the unborn male children from the title of property survey No.306 which
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she had retained for maintenance during her livelihood. The document read as a
whole clearly shows the intention of the donor that all the properties gifted shall
remain in the family of her brother, being their ancestral properties and shall be
enjoyed by the appellant and other male children as may be born, as joint holders.
The words in the gift deed upon which reliance has been placed by the appellant
cannot be seen in isolation. The document read as a whole does not show that the
donor intended to create an absolute right in favour of the appellant. The language
and tenor of the document clearly shows that the intention of Mahadevi was to
make all male children of her brother joint holders of the properties without
exception of any property. The gift deed has been properly construed by the
courts below.
The answer to the second question hinges upon the interpretation of
Sections 13 and 20 of the Act, which read as under :
"13. Transfer for benefit of unborn person\027Where,
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.
20. When unborn person acquires vested interest
on transfer for his benefit.\027Where, on a transfer of
property, an interest therein is created for the benefit of
a person not then living, he acquires upon his birth,
unless a contrary intention appears from the terms of
the transfer, a vested interest, although he may not be
entitled to the enjoyment thereof immediately on his
birth."
The contention of learned counsel for the appellant is that since the donor
did not create the interest of the entire property survey No.306 for the benefit of
unborn male child, namely, the respondent, the interest sought to be created under
the gift deed is invalid. In support, learned counsel places reliance on the
observations made in para 14 of the decision in Raj Bajrang Bahadur Singh v.
Thakurain Bakhtraj Kuer [AIR 1953 SC 7] which reads as under :
"Of course this by itself gives no comfort to the
defendant; she has to establish, in order that she may
be able to resist the plaintiff’s claim, that the will
created an independent interest in her favour following
the death of Dhuj Singh. As we have said already, the
testator did intend to create successive life estates in
favour of the successive heirs of Dhuj Singh. This, it
is contended by the appellant is not permissible in law
and he relied on the case of Tagore v. Tagore [18
W.R.359]. It is quite true that no interest could be
created in favour of an unborn person but when the gift
is made to a class or series of persons, some of whom
are in existence and some are not, it does not fail in its
entirety, it is valid with regard to the persons, who are
in existence at the time of the testator’s death and is
invalid as to the rest. The widow, who is the next heir
of Dhuj Singh, was in existence when the testator died
and the life interest created in her favour should
certainly take effect. She thus acquired under the will
an interest in the suit properties after the death of her
husband, commensurate with the period of her own
natural life and the plaintiff consequently has no
present right to possession."
The brief facts of the relied decision are that a will was executed by one
Raja Bisheshwar Bux Singh. The will, inter alia, stated that after the death of the
testator his younger son and his heirs and successors, generation after generation,
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may not feel any trouble and that there may not be any quarrel between them,
therefore, it as being executed with respect to certain villages so that after the
death of the testator, his younger son may enjoy the said properties. The younger
son and his heirs, without power of transfer, shall exercise other rights in respect
of the said properties. When the will was executed, the defendant, being the wife
of the younger son of Raja Bisheshwar Bux Singh was already there. On the
construction of the will, it was held that the younger son had only a life interest in
the properties under the terms of his father’s will. Had it been an absolute interest,
the property would have reverted to the elder son of the testator. Construing the
will, it was held that the testator did intend to create successive life interest in
favour of the successive heirs of his younger son that was held to be not
permissible in law. Under these circumstances, the Court observed that no interest
could be created in favour of an unborn person. The decision relied upon has no
applicability in the facts and circumstances of the instant case. The present is not
a case where any successive interest has been created under the gift deed.
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
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 contention.
For the aforesaid reasons, the appeal is dismissed. The parties are left to
bear their own costs.