MT BRIJ DEVI Vs. SHIVA NANDA PRASAD

JUDGEMENT

(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 11 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 14 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 11 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 11 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 Secs.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 11 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 11 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.