F.M. DEVARU GANAPATI BHAT v. PRABHAKAR GANAPATHI BHAT

Citation: [2003] SUPP. 6 S.C.R. 1265

Court: Supreme Court of India

Bench: Y.K. SABHARWAL, AR. LAKSHMANAN

Judgment text

F. M. DEVARU GANAPATI BHAT v. PRABHAKAR GANAPATHI BHAT DECEMBER 19, 2003 [Y. K. SABHARWAL AND DR. AR. LAKSHMANAN, JJ. ] Deed and Documents : Gift deed-Execution of-Sister gifting the property bought from her brother to her nephew-Stipulation that if other male child born to her brother, shall be joint holder-Construction of-Held : Document read as whole shows that the intention ofthe donor was to make all male children ofher brother joint holders ofproperties and not create an absolute right in favour ofher nephew-Further, the son born after the execution ofgift deed has interest in the property-Creation of such right is permissible under Section 20-Transfer of Property Act, 1992, Section 20. Interpretation of statutes : Rules ofconstruction-Intention ofthe executant-To be ascertained after considering all words in their ordinary natural sense and reading the document as whole. . Sister of G purchased all the properties from G on account of his helpless conditions.

The sister was issueless and she gifted the property under the gift deed to her nephew-appellant with the stipul:>tion that if other rrale children are born to her brother they shall be joint holders with the appellant. The gift properties were ancestral. When the gift deed was executed appellant was a minor and few years later his brother-respondent was born. Respondent filed suit for partition and possession claiming one-half share in the properties. Trial Court decreed the suit. Appellant filed an appeal. High Court dismissed the appeal. Hence the present appeal. Appellant contended that on true construction of the gift deed on demise of the donor, the appellant became the absolute owner of property and the respondent has no right over it; and that since the donor did not create the interest of the entire property for the benefit of unborn male child, the interest sought to be created under ·the gift deed is invalid. Dismissing the appeal, the Court HELD : 1. 1.

The words 'this property will be your and nobody else shall have right and title over it' in the gift deed ca·nnot 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. 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 which she had retain. ed for maintenance during her livelihood.

The language and tenor of the document read as a whole clearly shows the intention of the donor that all the property gifted shall f remain in the family of her brother, being their an se 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 ofthe 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 ~f 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 ofthe appellant. The language and tenor ofthe·document clearly shows that the intention ofMahadevi 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 ofunborn person-Where, on a transfer ofproperty, an interest therein is created for the benefit ofa 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 propeny. 20. When unborn person acquire'! 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 ~hat since the donor did not'ltreate 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 ofthe 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 plaintiffs 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 ofthe successive heirs ofDhuj 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 ofthe 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 ofthe 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 ofthe instant case. The present is not a case where any successive interest has been created under the gift deed. There iμoaan 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 ifother 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. N. J. Appeal dismissed.