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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.1209 OF 2020   

(arising out of SLP (C) No. 7493 of 2014)  

SRIDHAR & ANR.           ...APPELLANT(S)   

VERSUS  

N. REVANNA & ORS.       ...RESPONDENT(S)   

J U D G M E N T  

ASHOK BHUSHAN, J.  

This appeal has been filed by the plaintiffs  

against the judgment dated 18.01.2012 of the High Court  

of Karnataka in Regular First Appeal No.69 of 2002 by  

which the High court partly allowed the Regular First  

Appeal of the plaintiffs-appellants.   

2. Brief facts of the case for deciding this appeal  

are:  

The parties shall be referred to as described in  

the suit. One Shri Muniswamappa, great grandfather of

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the plaintiffs and grandfather of defendant No.1, was  

the absolute owner of the suit schedule property. Shri  

Muniswamappa executed two gift deeds dated 05.06.1957  

in favour of defendant No.1, N. Revanna. The gift deed  

was executed by Muniswamappa in favour of his grandson,  

N. Revanna. The gift deed also contained a condition  

that donee and his younger brothers hereafter had no  

right to alienate the scheduled property. Defendant  

No.1, N. Revanna executed sale deeds dated 07.10.1985,  

08.10.1985 and 10.10.1985 in favour of defendant Nos.2  

to 5. Defendant Nos.6 and 7 were the tenants of the  

premises. Original Suit No.11133 of 1995 was filed by  

the plaintiffs-appellants against N. Revanna,  

defendant No.1, vendees as defendant Nos.2 to 5 and  

defendant Nos.6 and 7 in which following reliefs have  

been claimed:  

“PRAYERS:  

(a) to declare that the plaintiffs are the  absolute owners of the suit schedule  

properties or in alternative to declare  

that the plaintiffs are the revert  

loners in interests of the suit  

schedule properties;  

(b) to declare the alienations in favour of  defendants 2 to 5 by the first  

defendant dated 7.10.1985, 8.10.1985

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and 10.10.1985 are null and void and  

set aside the same as the same is not  

binding on these plaintiffs;  

(c) to grant for permanent injunction  restraining the defendants 2 to 5 from  

taking possession of the suit schedule  

properties from the defendants 6 and 7  

and also restraining the defendants 2  

to 5 dismantling the suit schedule  

properties;  

(d) to direct defendants 2 to 5 deliver the  vacant possession of properties  

comprised in item No.1 of the schedule  

properties which they have taken  

possession from Sri Subramanayam and  

Sri Selvaraj; and  

(e) award costs and such other reliefs as  this Hon’ble Court may deems fit in the  

circumstances of the case.”  

3. The case of the plaintiffs was that N. Revanna  

received the suit properties by registered gift deed  

dated 05.06.1957 from his grandfather, Muniswamappa and  

as per the gift deed defendant No.1 and his younger  

brothers who may be born had no right to alienate the  

suit schedule property. It was pleaded that sale deed  

executed by defendant No.1 is void and the plaintiffs  

being sons of defendant No.1 and great grandsons of  

Muniswamappa are the absolute owners of the property.  

Both the plaintiffs were minors and the suit was filed

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by their next friend and guardian paternal grandmother,  

Smt. Jayamma.   

4. Defendant No.1 filed written statement supporting  

the case of the plaintiffs stating that as he was in  

dire need of money and proceeded under the bona fide  

belief that there was no legal impediment to sell the  

property. Defendant No.7 also filed written statement.  

Defendant Nos.2 to 5 filed a common written statement  

questioning the bona fide of the plaintiffs and their  

guardian. They pleaded that the plaintiffs have been  

set up by the vendor. Defendant No.1 acting in addendum  

in seeking to avoid the sale on a specious plea that  

there was a condition that the property could not have  

been alienated by defendant No.1. Trial Court framed  

the following five issues:  

“1] Whether the plaintiff proves that  

plaintiffs have got absolute right over  

the suit schedule properties?  

2] Whether the plaintiff proves that  

defendant No.1 has no right to alienate  

suit schedule property in favour of  

Defendant No.2 and Defendant No.5 and  

that said alienation is not binding on  

the plaintiffs?

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3] Whether the defendants prove that  

condition of restraint on alienation is  

void in law?  

4] Whether the plaintiffs are entitled to  

the relief sought?  

5] What order or decree?”  

5. Issue Nos.1 and 2 were answered in negative and  

Issue No.3 was answered in affirmative. The trial court  

held that the plaintiffs have failed to prove that they  

have got absolute right over the suit schedule property  

and they have also failed to prove that defendant No.1  

had no right to alienate the property. The suit of the  

plaintiffs was dismissed by the trial court vide its  

judgment and decree dated 21.11.2001.  

6. A Regular First Appeal was filed by the plaintiffs  

in the High Court. The High Court held that the trial  

court was clearly in error in holding that the condition  

imposed on defendant No.1 was void. The High Court took  

the view that the benefits that defendant No.1 received  

by virtue of sale deed had to be given back to the  

plaintiffs. The High Court partly decreed the suit by  

passing the following order:

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“The plaintiffs’ condition that the  

property was worth multiple times the sale  

price for which it was sold, is an  

unfortunate circumstance. The interest of  

justice would demand that the plaintiffs be  

entitled to nothing more that what Revanna  

had received under the sale Deeds. It is  

this alone which the plaintiffs shall be  

entitled to and it is accordingly decreed  

that the plaintiffs are entitled to the  

sale consideration received by Revanna  

under the Sale Deeds. The plaintiffs are  

entitled to recover the same from defendant  

No.1. Further, since defendant Nos.2 to 5  

were equally responsible for creation of  

this circumstance, it would meet the ends  

of justice if nominal costs are imposed on  

them, which in the opinion of this court  

would be in the order of Rs.25,000/-  

payable to the plaintiffs, jointly; though  

in law, the condition was not to be held  

void, in which event, though the plaintiffs  

could then claim ownership to the property,  

having  regard to the sequence of events  

and the present circumstance, the claim of  

the plaintiffs to recover the property  

necessarily has to be denied. The order of  

temporary injunction granted earlier stands  

vacated.”  

7. The plaintiffs aggrieved by the judgment of the  

High Court have come up in this appeal.  

8. Shri Jayant Kumar Sud, learned senior counsel  

appearing for the appellants submits that the High  

Court even after deciding all the issues in favour of  

the plaintiffs erred in law in not declaring the sale

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deeds null and void and returning the property to the  

plaintiffs. It is submitted that when the High Court  

held that the condition in the gift deed executed by  

the Muniswamappa in favour of defendant No.1 that donee  

shall not be entitled to alienate the schedule property  

was held to be a valid condition the sale deeds executed  

by defendant No.1 automatically became void and were  

liable to be declared so. He submits that defendant  

No.1 in the gift deed executed by his grandfather had  

only a life stake who could not have alienated any of  

the properties.   

9. Learned counsel for the appellant further submits  

that the gift deed executed in favour of defendant No.1  

on 05.06.1957 was not a valid gift deed. It being gift  

deed in favour of defendant No.1 and for the benefit of  

unborn person was void under Section 13 of the Transfer  

of Property Act.  

10. Shri S.S. Javali, learned senior counsel, appearing  

for the respondents refuting the submissions of the  

learned counsel for the appellants contends that the

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gift deed dated 05.06.1957 was a valid gift deed and  

was not hit under Section 13 of the Transfer of Property  

Act. He further submits that the condition of gift deed  

dated 05.06.1957 that donee shall not be eligible to  

alienate the property, was a void condition. He has  

placed reliance on Section 10 of the Transfer of  

Property Act, 1882. Learned counsel for the respondents  

submits that the High Court committed an error in  

holding that condition of non-alienation was not void.   

11. We have considered the submissions of the learned  

counsel of the parties and perused the records.  

12. The short question to be considered and answered  

in this appeal is “as to whether defendant No.1 had  

right under gift deed dated 05.06.1957 to alienate the  

suit properties”? The trial court has held that the  

condition in the gift deed that the donee shall not be  

eligible to alienate the property was void and  

defendant No.1 has validly executed the sale deeds in  

favour of defendant Nos.2 to 5. The trial court has  

resultantly dismissed the suit. The High Court had

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taken the contrary view that the above condition of the  

gift deed was not void. Further, the High Court did not  

annul the sale deed rather granted limited relief to  

the plaintiffs that the plaintiffs are entitled to  

receive back the consideration which was received by  

defendant No.1 by execution of three sale deeds dated  

07.10.1985, 08.10.1985 and 10.10.1985. The suit of the  

plaintiffs for rest of the prayers was dismissed.  

13. Before we proceed to consider the respective  

submissions, it is necessary to look into the relevant  

portions of the gift deed dated 05.06.1957. The gift  

deed was executed by Muniswamappa claiming to be sole  

and absolute owner of the premises bearing Municipal  

No.324 and 325. Defendant No.1, N. Revanna was a minor  

aged five years represented by his father, a natural  

guardian, M. Narayanappa. The relevant portion of the  

gift deed is as follows:  

“NOW THIS INDENTURE WITNESSETH that in  

pursuance of the aforesaid agreement and in  

consideration of extreme love and affection  

which the donor cherishes for the done his  

grandson and the donee’s, offspring’s and  

the donee’s young brothers and their male  

offspring’s who may be born hereafter he  

the donor doth hereby grant, convey,

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makeover and transfer by way of gift to the  

done above name the immovable property  

described in the schedule hereunder given  

which bears Municipal No.324, Old Poor  

House Road Civil Station Bangalore, to be  

taken by his as a gift subject to the  

conditions hereinafter mentioned.  

The donor covenants with the donee, that  

on the date of these presents, the property  

that is now endowed as a gift is free from  

all encumbrances, liens, charges,  

attachments from Court and lispardens and  

that he has absolute and unimpeachable  

right to grant it as a gift and that no one  

else has any right to question the same.  

The donor has this day handed over  

possession of the property hereby gifted to  

the donee, in accordance with Law which the  

donee shall enjoy on and from this date,  

over which she can exercise all rights of  

ownership subject to the conditions  

detailed hereinafter namely:-  

1. The Donee or his younger brothers  who may be born hereafter have no  

right to alienate the schedule  

property in any manner whatsoever  

by way of sale, gift mortgage or  

otherwise.  

2. The donee or his younger brothers  who may be born hereafter shall  

enjoy the property during his or  

their life time as the case may be  

and on his or their demise it  

shall devolve on his or their male  

children then surviving who shall  

be at liberty to deal with the  

property mentioned in the schedule  

hereunder in any mentioned her  

their to do with unstructed gifts.  

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3. In case the Donee or his younger  brother or brothers who may be  

born hereafter die issue-less, the  

said property hereby gifted shall  

devolve on Sri SOMESWARASWAMY of  

Sri Someswara Temple Ulsoor Civil  

Station Bangalore, for the benefit  

of the said Temple.”  

14.  The gift deed categorically states: ”donor doth  

hereby grant, convey, makeover and transfer by way of  

gift to the donee above named the immovable property  

described in the schedule hereunder”.  The gift deed in  

favour of the donor was absolute and who was to exercise  

rights of ownership subject to the conditions detailed  

in the gift deed. One of the conditions which was  

enumerated in the gift deed was that “the donee or his  

younger brothers who may be born hereafter have no right  

to alienate the schedule property in any manner  

whatsoever by way of sale, gift mortgage or otherwise”.  

15. The gift deed further stated that “donee or his  

younger brothers who may be born hereafter shall enjoy  

the property during his or their life time as the case  

may be and on his or their demise it shall devolve on  

his or their male children then surviving who shall be

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at liberty to deal with the property mentioned in the  

schedule hereunder in any manner”.   

16. The question to be answered is as to whether  

defendant No.1 who was gifted the schedule property had  

no right to alienate the schedule property in any manner  

whatsoever. The reliance has been placed by the counsel  

of the respondents on Section 10 of the Transfer of  

Property Act which is to following effect:  

“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  

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 those  

claiming under him:   

Provided that property may be  

transferred to or for the benefit of a women  

(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.”  

17. Section 10 expressly provides that 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

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his interest in the property, the condition or  

limitation is void. According to Section 10 any  

condition restraining the transferee the right of  

alienation is void. A plain reading of Section 10 of  

Transfer of Property Act makes it clear that the  

condition in the gift deed dated 05.06.1957 that  

defendant No. 1 shall not alienate the property is a  

void condition.   

18. Learned counsel for the respondents has rightly  

placed reliance on the judgment of Allahabad High Court  

in Smt. Brij Devi vs. Shiva Nanda Prasad and others,  

AIR 1939 Allahabad 221, wherein the High Court had  

occasion to consider Sections 10 and 126 of the Transfer  

of Property Act. In the above case also gift deed came  

into consideration which contained a condition that  

“The donee or his successors will have no right to  

transfer or mortgage”. The Division Bench of the High  

Court had laid down:  

“Now the law of conditions in regard to  

the transfer of property is contained in  

Ch. 2 of the T.P. Act. No condition  

therefore, in our judgment, imposed upon a  

donee can be valid if it is inconsonant  

with the provisions of Section 10 of the

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Act. The contention, of learned Counsel for  

the plaintiffs that Section 126 is an  

absolute exception to Section 10 and that  

in view of the terms of the former Section  

the donor was entitled to impose a  

condition entitling him to revoke upon any  

event happening including an alienation by  

the donee, provided that event did not  

depend on the will of the donor in our  

judgment is unsound. It is the duty of the  

Court to give full effect to every Section  

of an enactment. We see no difficulty in  

reconciling the provisions of Sections 10  

and 126. Section 10 embodies the general  

principle that a transfer of immovable  

property may not impose a condition  

restraining the transferee from alienating  

the interest conveyed to him absolutely  

except in the case of a lease where the  

condition is for the benefit of the lessor.  

This general provision, in our judgment,  

applies to all transfers including gifts.  

Apart from the condition restraining  

alienation by a lessee, there is no other  

exception.”  

19. The Allahabad High Court in the subsequent judgment  

in Smt.Prem Kali vs. Deputy Director of Consolidation,  

Sitapur and others, 2016(116) ALR 794, followed the  

earlier judgment of the High Court. In paragraph 15  

following was laid down:  

“15. A bare reading of Sections 10 and  

126 of Act, 1882, shows that Section 10  

lays down that in a transfer, the condition  

restraining alienation, cannot be inserted.  

Section 126 of Act, 1882 lays down that on  

happening of certain condition, not  

depended on the will of the donor, the gift

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can be suspended or revoked. Present case  

is not covered under Section 126. According  

to the respondent, gift can be conditional.  

But there is no question as to whether a  

gift can be conditional but the real  

question is that condition, which has been  

specifically prohibited under Section 10 of  

Act, 1882 can be imposed in the gift or  

not. There is no reason to hold that the  

condition which is specifically prohibited  

under Section 10 of Act, 1882 is not  

applicable to gift. This question came for  

consideration before various Courts in  

under noted cases from time to time, viz Re  

Dugdale (1888) 38 Ch D 176; Nabob  

Amiruddaula Vs Nateri (1876) 6 Mad HC 356  

(Mohomedan Law); Anantha Vs Nagamuthu  

(1882) ILR 4 Mad 200; Ali Hasan Vs Dhirja  

: (1882) ILR 4 All 518; Bhairo Vs.  

Parmeshri: (1885) ILR 7 All 516;  

Muthukamara Vs. Anthony (1915) ILR 38 Mad  

867, 24 IC 120; Narayanan Vs Kannan (1884)  

7 Mad 315, Brij Devi v. Shiv Nanda  

Prasad:AIR 1939 All 221; Giani Ram Vs  

Balmakand :(1956) 58 Punj LR 114 : AIR 1956  

Punj 255; Ramasamy and ors Vs. Wilson  

Machine Works AIR 1994 Madras 222 (NOC),  

Jagdeo Sharma Vs. Nandan Mahto: AIR 1982  

Pat. 32 and Gorachand Mukherji Vs. Smt.  

Malabika Dutta: AIR 2002 Cal 26. This Court  

has already taken the view that condition  

restraining donee from alienation of gift,  

cannot be imposed and such a condition is  

void under Section 10 of the Act, 1882. I  

respectfully agree with the aforesaid view  

taken in Brij Devi (supra).  

20. Now, we come to the submission of the learned  

counsel for the appellants that gift deed was hit by  

Section 13 of the Transfer of Property Act. Section 13  

of the Transfer of Property Act provides:

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“Section 13. Transfer for benefit of unborn  

person.—Where, 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 the  

property.”   

21. A perusal of the gift deed as noted above indicates  

that Muniswamappa gifted the immovable property to his  

grandson, N. Revanna. Gift was not in favour of any  

unborn person rather gift was in favour of N. Revanna  

who was a minor, five years old. The reference of donee  

and his younger brothers or their male children was  

made while enumerating the conditions as contained in  

the gift deed. The condition was put on the donee and  

his younger brothers who may be born after the  

execution of the gift deed. The condition put on person  

unborn is entirely different from execution of gift  

deed in favour of a person who is not born. Thus, the  

gift was clearly a gift in favour of defendant No.1 and  

not in favour of unborn person, thus, Section 13 has  

no application in the facts of the present case.   

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22. Learned counsel for the appellants has placed  

reliance on the judgment of this Court in F.M. Devaru  

Ganapathi Bhat vs. Prabhakar Ganapathi Bhat, (2004) 2  

SCC 504, in support of his submission based on Section  

13 of the Transfer of Property Act. The gift deed which  

came into consideration in the aforesaid case has been  

reflected in paragraph 4 of the judgment which is to  

the following effect:  

“4. In the 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:  

“THIS 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, housewife, 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.  

WHEREAS, 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

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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. ………………………………………….. 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 executed……………….”  

23. The gift deed in the above case was also in favour  

of Devaru Ganapathi Bhat, aged about 13 years, this  

Court held that Section 13 has no applicability to the  

facts of the above case. In paragraph 12 following has  

been laid down:  

“12. There is no ban 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 an  

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

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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.  

24. The above judgment of this Court clearly supports  

the submission of the learned counsel for the  

respondents that Section 13 has no application in the  

present case.   

25.  In view of the foregoing discussions, we are of  

the clear opinion that the High Court erred in holding  

that defendant No.1 was not entitled to transfer the  

property which was received by gift deed dated  

05.06.1957. The plaintiffs were not entitled for  

declaration as sought for in the suit. There is no  

merit in the appeal. The appeal is accordingly  

dismissed.  

......................J.  

                                ( ASHOK BHUSHAN )  

......................J.  

                                 ( NAVIN SINHA )  

New Delhi,  

February 11, 2020.