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2003 DIGILAW 790 (KAR)

M. B. Bramhakumar v. M. B. Revamma

2003-09-17

K.SREEDHAR RAO

body2003
JUDGMENT K. Sreedhar Rao, J.--This appeal filed against the Judgment and decree passed in R.A. No. 159 of 1996 on the file of Civil Judge (Sr. Dn.) Mandya arising out of the Judgment and decree passed in O.S. No. 874 of 1991 on the file of II Additional Munsiff Mandya. The Appellants are the Plaintiffs in the suit filed for partition and possession of the suit schedule house. The Plaintiffs claim to be the children of third Defendant through his 2nd wife Sharanamma, the first Defendant is the daughter of third Defendant through his deceased first wife Laxmamma. The 2nd Defendant is the husband of the first Defendant. The Plaintiff contends that the schedule property is the ancestral property and the third Defendant and his first wife Laxmamma executed a conditional registered gift dated 3.11.1966 in favour of first and second Defendant. The said document is void as it does not conform to the requirements of gift or any other form of valid transfer under the T.P. Act. Therefore, seek partition of their share. Plaintiffs further contend that they are residing in a portion of the house to an extent of three ankanas. 2. Third Defendant admits the contention of the Plaintiffs and concedes for the relief in favour of the Plaintiffs. The Defendants 2 and 3 have contested the case and submit that the document Ex.D.1 is a valid deed of transfer conferring title upon them and contend that the Plaintiffs have no right or title to seek a partition. The trial Court up holds the contention of the Plaintiffs that the document Ex.D.1 is neither a gift nor a sale, hence void. Therefore holds that the Plaintiffs are entitled to a share in the property. 3. Appellate Court has reversed the findings of the trial Court on the validity of Ex.D.1 and dismissed the suit by allowing the appeal. Hence the second appeal. 4. The following substantial questions of law are framed for consideration: 1. Whether the Appellate Court committed legal error in upholding the validity of Ex.D.1 as a valid deed of transfer and such a finding is contrary to the evidence and terms of the document? 2. Whether Ex.D.1 does not convey any title to Defendants No. 1 and 2 in law? 5. Whether the Appellate Court committed legal error in upholding the validity of Ex.D.1 as a valid deed of transfer and such a finding is contrary to the evidence and terms of the document? 2. Whether Ex.D.1 does not convey any title to Defendants No. 1 and 2 in law? 5. The Courts below have concurrently found as a fact from the documentary evidence that the suit property was an ancestral property of the third Defendant. The relationship of the parties is not in dispute. Evidently Ex.D.1 is executed prior to marriage of the third Defendant with Sharanamma mother of the Plaintiffs. Obviously the Plaintiffs are born subsequent to the execution of Ex.D.1. The material question in this case would be the validity of Ex.D.1 and its legal effect to convey the title in favour of Defendants No. 1 and 2. The terms of Ex.D.1 are worded in a very peculiar and unconventional manner. The Defendant No. 3 and his first wife Laxmamma in the first portion of the document say that they are gifting the property in favour of Defendants No. 1 and 2. Further the recitals discloses that the Defendants No. 1 and 2 discharged the loan liabilities incurred by third Defendant with one Varadegowda and the same is shown as one of the considerations for execution of Ex.D.1. Under the document by categorical statement declare that the title absolutely vest in the name of Defendants No. 1 and 2 and possession is also delivered as per recitals of the document. Some of the portions of the house property were tenanted. Defendants No. 1 and 2 were conferred with the rights to collect rents from the tenants. Later part of the document stipulates that Defendants No. 1 and 2 have no right to sell the property without the permission of the Defendants No. 3 and deceased Laxmamma. Further it is stipulated that if Laxmamma were to beget any child the said children shall have half share in the property. It is also stipulated that upon the demise of the third Defendant and Laxmamma the Defendants No. 1 and 2 shall perform obsequies as per the religious rites and custom. In view of such multifarious stipulations, it is strenuously contended by the Counsel for the Appellant that the document is void as it neither conforms to the requirements of gift nor conforms that the transaction of transfer by sale. In view of such multifarious stipulations, it is strenuously contended by the Counsel for the Appellant that the document is void as it neither conforms to the requirements of gift nor conforms that the transaction of transfer by sale. Therefore, the document being void document, it would not confer any exclusive title on the Defendants 1 and 2 and that the appellate Court has misread the legal effect of the document in rendering the Judgment in favour of the Respondents. 6. The careful perusal of the terms of the document does not disclose that there is any sort of vagueness with regard to the transferor and transferee and the identity of the property. May be the document has overlapping the incidences of gift and the sale and also contains the stipulations similar to conditional bequests placing restrictions on the right of alienation. The document does not disclose as to what was the financial liability incurred by the third Defendant that came to be discharged but by oral and other documentary evidence, it is established that the Defendants 1 and 2 have discharged the loan liabilities of the third Defendant to an extent of Rs.1667/-. The suit house as per Ex.D.1 as on date was valued Rs.1,000/-. There is evidence to show that more than the full value has been paid while obtaining Ex.D.1 when the transfer exfacie not for any gratuitous consideration cannot be a gift. But as per the recitals it is a transfer for a consideration, conferring absolute title in the property with delivery of possession and right to collect rent from the tenants. The conditional stipulations relating to restriction on the right of alienation without permission of the vendor/donor and that in the event of male offspring's to Smt. Laxmamma the Defendant to give 1/2 share are in the nature of a conditional bequest. Laxmamma died without begetting any male issue. Therefore, there was no occasion for the last condition of the document to come into effect, merely because certain stipulations are made in the document which is repugnant to the interest created. It cannot be said that the transaction would become void in view of the provisions of Sections 10 and 11 of the Transfer of Property Act which reads thus: 10. It cannot be said that the transaction would become void in view of the provisions of Sections 10 and 11 of the Transfer of Property Act which reads thus: 10. Condition restraining alienation.-Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or dispossing 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 those claiming under him: Provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein. 11. Restriction repugnant to interest created.-Where, on a transfer of property, an interest therein created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction. [Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.] 7. The transaction is for a valid consideration to the full value of the property. Therefore the document has to be treated as sale deed creating absolute title and interest with delivery of possession. Any other repugnant conditions imposed if it is inconsistent with the nature of right created such condition or stipulation becomes void and ineffective. 8. In that view of the matter, I find that the contention of the Counsel for the Appellant that the document Ex.P.1 is void and does not convey any right or title is untenable. The first point of law is answered in negative and the 2nd point in the affirmative. Accordingly, the appeal is dismissed.