Ganapati Bhat Vs. Prabhakar Ganapathi Bhat  Insc 673 (19 December 2003)
& Dr.A.R.Lakshmanan Y.K. Sabharwal, J.
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.
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.
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
questions that fall for consideration in this appeal are :
Construction of gift deed dated September 9, 1947; and
Validity of creation of interest in the property in question in favour of
respondent in view of Section 13 of the Act.
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 :
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.
I am the owner of the below mentioned immovable properties and house. In order
to protect the interest of the below mentioned 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
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.
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.
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.
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 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.
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.
answer to the second question hinges upon the interpretation of Sections 13 and
20 of the Act, which read as under :
Transfer for benefit of unborn personWhere, 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
When unborn person acquires vested interest on transfer for his benefit.Where,
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 :
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, 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
is no ban on the transfer of interest in favour of an unborn person.
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.
the aforesaid reasons, the appeal is dismissed. The parties are left to bear
their own costs.