Transfer of Property Act, 1882 – ss. 10, 13 – Two gift deeds were executed in favour of defendant no.1 by his grandfather, who was also great grandfather of plaintiffs, with a condition that donee and his younger brothers hereafter had no right to alienate the scheduled property – Defendant no.1 executed three sale deeds in favour of defendant nos. 2-5 – Defendant nos. 6 & 7 were tenants of the premises – Suit was filed by appellants-plaintiffs against defendants inter alia for declaration that the alienations in favour of defendants 2-5 are null and void – Dismissed – High Court partly decreed the suit – Held: One of the conditions 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” – s.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 – Thus, the condition in the gift deed that defendant no.1 shall not alienate the property is a void condition – Further, the gift was not in favour of any unborn person but in favour of defendant no.1 who was a minor, five years old – Condition was put on the donee and his younger brothers who may be born after the execution of the gift deed – Condition put on person unborn is entirely different from execution of gift deed in favour of a person who is not born – Thus, gift clearly being in favour of defendant no.1 and not in favour of unborn person, s.13 also has no application in the facts of the present case – High Court erred in holding that defendant no.1 was not entitled to transfer the property received by gift deed – Plaintiffs were not entitled for declaration sought in the suit. Dismissing the appeal, the Court
HELD: 1.1 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”. [Para 14][730 E-H]
1.2 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 condition. A perusal of the gift deed indicates that the grandfather gifted the immovable property to his grandson. Gift was not in favour of any unborn person rather gift was in favour of 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. [Paras 17, 21][731 DF; 733 D-G]
1.3 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. [Para 25][735-C]
Smt. Brij Devi v. Shiva Nanda Prasad and others, AIR 1939 Allahabad 221; Smt. Prem Kali v. Deputy Director of Consolidation, Sitapur and others 2016 (116) ALR 794; F.M. Devaru Ganapathi Bhat v. Prabhakar
Ganapathi Bhat (2004) 2 SCC 504 : [2003] 6 Suppl. SCR 1265 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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