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1981 DIGILAW 354 (KAR)

MALLAPPA BASAPPA v. NINGAWWA

1981-11-23

K.J.SHETTY, P.A.KULKARNI

body1981
JAGNNATHA SHETTY, J. ( 1 ) THIS appeal has been preferred against the judgment and decree dated January 31, 1974 made by the Prl. Civil Judge, belgaum, in OS No. 116 of 1972 by which the learned Civil Judge decreed the plaintiff's suit. ( 2 ) BRIEFLY stated the facts are these : - plaintiff 1 is the widow of one Basappa and plaintiff-2 was the nephew of Basappa. Defendant-2 Basawwa is the wife of one patreppa and defendant-1 Mallappa was adopted by defendant-2. The plaintiffs filed a suit for a declaration that plaintiff-2 is the owner of the suit properties by virtue of the gift deed dated March 11, 1966, Ext. P6. It was a deed executed by the deceased Basappa, the husband of plaintiff-1, in favour of plaintiff 2. The suit was also for a permanent injunction restraining the defendants from obstructing or interfering with the plaintiffs. ' possession and enjoyment of the suit properties. ( 3 ) THE suit properties consist of two rs Nos. 45/1 and 542/2 measuring 5 acres 16 guntas and 5 acres 19 guntas respectively. It also covers an open site bearing s No. 176b. All these properties are situate at Hooli in Saundatti Taluk, Belgaum district. ( 4 ) THE suit properties originally belonged to Patreppa, the husband of defendant-2. Patreppa had no issues. He brought up Basappa as his foster son and performed his marriage and they were all living together. On October, 27, 1922, patreppa executed a gift deed, Ext. P1, gifting the suit properties in favour of basappa. Basappa at the time of gift was hardly 26 years old. Thereafter he got 3 sons viz. , Chaanabasappa and Ningabasappa and the third son was not named since he died on the 13th day. Unfortunately even the other two sons died, one at the age of 7 years and the other at the age of 1 1/2 years. The only consolation was he had Slaughters out of whom, two survived. ( 5 ) PATREPPA died in 1938 and Basappa died in 1969. Basappa before his death, executed a deed, Ext. P 6 dated March 11, 1966 gifting the suit properties in favou of plaintiff 2. The only consolation was he had Slaughters out of whom, two survived. ( 5 ) PATREPPA died in 1938 and Basappa died in 1969. Basappa before his death, executed a deed, Ext. P 6 dated March 11, 1966 gifting the suit properties in favou of plaintiff 2. ( 6 ) THE case of the plaintiffs was that they were entitled to the suit properties by virtue of the gift deed executed by Basappa and the defendants without any authority were interfering with their peaceful possession and enjoyment. ( 7 ) THE defendants resisted the suit contending inter alia that Basappa did not beget any son and the properties gifted by patreppa under Ext. P 1 were therefore liable to be reverted to the donor's family. It was also contended that Basappa was entitled to only a life estate under Ext. P-1. ( 8 ) IN the light of these pleadings, the trial Court framed as many as 6 issues out of which issue Nos. 1, 2 and 3 are relevant. They are :-1) Whether plaintiff No. 2 proves that he has become owner of suit properties by virtue of the gift deed dated 11 -3-1966 executed by deceased Basappa channabasappa Pyatigeniger ? 2) Whether plaintiffs prove that in the gift deed executed by Patreppa on 27-10 1922, in view of the earlier absolute grant in favour of Basappa, the later clause which is in derogation of the same, is void under law ? 3) Whether plaintiffs prove Basappa begot three sons, there was gift over to his sons, so there could be no question of the estate being reverted to the donor or his heirs ? ( 9 ) THE plaintiffs have examined themselves as PWs 1 and 2. They have also examined Krishnaji (PW-3) who was a vatandar patil of Hooli village. The defendants, in turn, have examined themselves as DWs 1 and 2. They have also produced one more witness Andanappa (DW 3 ). The trial Court held that Basappa became the absolute owner of the properties under the gift deed Ex. P-l and the directions in the gift deed in regard to the right of enjoyment by the sons to be born to Basappa are inconsistent with the unequivocal declaration made by Patreppa, vesting the suit properties absolutely in basappa and Basappa was, therefore, competent to dispose of those properties in favour of plaintiff 2. P-l and the directions in the gift deed in regard to the right of enjoyment by the sons to be born to Basappa are inconsistent with the unequivocal declaration made by Patreppa, vesting the suit properties absolutely in basappa and Basappa was, therefore, competent to dispose of those properties in favour of plaintiff 2. So stating, the court held that the estate could not revert to the donor under Ex. P-l or to his heirs. The suit was accordingly decreed granting the reliefs prayed for. ( 10 ) IN this appeal, the sole question that arises for consideration is: "whether having regard to the terms of Ex. P-1, Patreppa, the donor, intended to confer an absolute grant in favour of Basappa or jointly to Basappa and his sons to be born ?" for a proper consideration of the question it is necessary to set-out the material portions of the recitals in Ex. P-l. The document is in Kannada and the portion so far as is relevant reads thus : x X X X the English version of the above extract may be given as follows :"i have put these properties in your possession. My successors will have no right in respect of those properties. You are the absolute owner. You can enjoy the properties permanently generation to generation as an owner as per your desire. The value of the properties might be estimated at Rs. 1,000. You have no son for the present. If in future you beget a male issues, the properties must be held by them generation to generation. In case you do not beget any son then after you the properties shall revert to me or to my heirs and you have no right to dispose of the properties by will, nor the persons claiming by adoption will acquire any right therein. The properties must revert to my family". ( 11 ) IT is unnecessary to consider any long list of cases bearing on the construction of this deed. It is a settled principle that to ascertain the intention of the parties to an instrument, the Court must have regard to all the recitals and must consider the document as a whole. The Court also must generally accept if possible such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The Court also must generally accept if possible such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. Where apparently there are conflicting dispositions, the Court must try to reconcile them by giving full effect to every recital instead of cutting down the clear meaning of the words used by the donor (See Rama- kishorelal v. Kamalanarayana (1) and navneetlal v. Gokul (2 ). ( 12 ) BEARING in mind these principles we may now try to analyse the recitals in the first deed of gift Ex. P-1. ( 13 ) PATREPPA has stated that "i have put these properties in your possession. You are the absolute owner and you can enjoy the properties permanently". These recitals indicate that the properties were vested absolutely in Basappa. But the deed does not stop there. That is only the first part of the deed. The deed then follows in these terms: "you have no son for the present and if in future you beget male issues, the properties must be held by them generation to generation". ( 14 ) IT is a fact that on the date of Ex. P 1, basappa had no male issues. He was hardly 26 years. Quite naturally, Patreppa expected Basappa to beget children and he made provision for the male issues to be born. So he directed that "if in future you beget male issues properties must go to them to be held by them generation to generation". The words "generation to generation" indicate that the grant was nothing but an absolute one. They are words of disposition so well known and accepted as implying absolute rights. ( 15 ) PATREPPA wanted both of them, that is Basappa and his male children to hold and enjoy the properties absolutely. His intention in other words was that the male children ot Basappa also should jointly hold and enjoy the properties. The gift to male children was not independent of or to the exclusion of Basappa. Nor the gift to Basappa was intended to the exclusion of the male children. The apparent intention of the donor was that both of them should hold and enjoy the properties gifted. The gift to unborn persons has been statutorily recognised by the Hindu disposition of Property Act, 1916, and there is, therefore, no impediment to the gift in question. Nor the gift to Basappa was intended to the exclusion of the male children. The apparent intention of the donor was that both of them should hold and enjoy the properties gifted. The gift to unborn persons has been statutorily recognised by the Hindu disposition of Property Act, 1916, and there is, therefore, no impediment to the gift in question. ( 16 ) THERE is yet another part of the gift deed which is in the following terms : "in case you do not beget any son, then after you the properties shall revert to me or to my heirs and you have no right to dispose of those properties by will etc". These recitals in unequivocal terms mirror the intention of the donor as to what should happen to the gifted properties, if Basappa did not get male issues. The deed states that after Basappa, the properties shall revert to the donor or to his heirs and Basappa has no right to dispose them off. ( 17 ) IT is no doubt true that no power of disposal has been conferred on Basappa. But that does not mean that it was only a limited estate given to him. On the contrary that would confirm our conclusion that the gift was given not only to Basappa. but also to his male issues to be born and if there is no male issue, then, the properties shall revert to the donor's family and not to go by succession. ( 18 ) THE fact remains that Basappa begot three sons and there is no serious dispute about that. PW 1 Ningawwa in her disposition has given the names of two children. She has also stated that her third son before the naming ceremony died on the 13th day. She has also produced exs. P 2 and P -3 the death certificates of her two sons. The gift, therefore, was fully effective and Basappn and his male children became the joint owners of the gifted properties. They were not liable to be reverted to the donor's family. ( 19 ) THE question next is what should happen and on whom the interests of the predeceased sons would devolve since they died before the Hindu Succession Act. The gift, therefore, was fully effective and Basappn and his male children became the joint owners of the gifted properties. They were not liable to be reverted to the donor's family. ( 19 ) THE question next is what should happen and on whom the interests of the predeceased sons would devolve since they died before the Hindu Succession Act. Ordinarily when a person dies his property devolves (in case of intestacy) on his own heirs, that is by the rule of succession and not by the rule of survivorship. But if a property is held jointly by two or more persons as co-owners or tenants-in-common, then on the death of any one of them the rule of survivorship takes precedence over the rule of succession, and the interest in the joint property passes to the surviving persons. That must be the principle to be followed in this case. Then Basappa would be entitled to all the propertirs upon the death of his three sons. We may incidentally point out that if it was the rule of succession, then the mother of the predeceased sons would be the preferential heir and not the father as per the Shastric law prevalent in the Bombay State (See mulla Hindu Law, Nth Edn. , Pape 147.) ( 20 ) THEREFORE, Basappa after the death of his male children had every right to execute the gift deed Ex. P 6 in favour of plaintiff No. 2 and the plaintiffs are entitled to the relief asked for. ( 21 ) IN the result, the appeal fails and is dismissed concurring with the conclusion of the Court below but not with its reasons. In the circumstances of the case, however, we make no order as to costs. --- *** --- .