Bibhutibhusan Sahu and Another vs Nandakishore Sahu and Others

R.N. Misra, J.—Plaintiffs are in appeal against the reversing judgment and decree of the learned Additional Subordinate Judge of Cuttack in a suit for permanent injunction to restrain Defendant No. 1 from disturbing Plaintiffs'' possession over B schedule property.

Plaintiffs claimed that Plaintiff No. 1''s father, Karunakar, and Defendant No. 1, Nandakishore, were brother living joint. Karunakar was serving in a liquor shop and Nandakishore was serving in an opium shop as salesmen. Out of their personal income, the two brothers had acquired jointly about 15 acres of land. When Karunakar died in the year 1955, Plaintiff No. 1 was looking after the cultivation in the village. Defendant No. 1''s wife Pata died in the year 1953. As Nandakishore had no issue. Through Pata, Plaintiff No. 1 looked after Nandakishore and Nandakishore had, therefore, developed liking for him. On 29-7-1964, Defendant No. 1 gifted eight annas share of the property in favour of Plaintiff No. 1 and his minor son - the second Plaintiff. The subject matter of gift has been described in schedule B of the Plaintiff. The gift was accepted and was duly acted upon and Plaintiff No. 1 was looking after the entire property. Some persons ill-disposed of towards Plaintiff No. 1 prevailed upon Defendant No. 1 Nandakishore to create disturbance in the peaceful possession of the B schedule property and he started threatening that he would alienate the same to strangers. Nandakishore executed a deed of cancellation of the gift.

Defendant No. 1 denied the gift and claimed that after Pata''s death, he had married twice. While the second wife dead, the third one is alive. As he was not pulling on well with his children born through the second and third wives, Defendant No. 1 had placed reliance on Plaintiff No. 1 who was extending help to him. In 1964, Plaintiff No. 1 asked Defendant No. 1 to execute a power of attorney in his favour so that he could look after the property. When in good faith Defendant No. 1 agreed to execute such document, a deed of gift was taken from him. After the gift was taken, Plaintiff No. 1 changed his behaviour and stopped sending usufructs from 1966 on various false pleas. Defendant No. 1 upon enquiry came to learn of the fraud played upon him and taking of the deed of gift. He accordingly cancelled the deed of gift in March, 1968 and took possession of the property and is now in possession through bhag tenants. It was further pleaded that Defendant No. 1 had, contrary to the terms of the deed of gift, made an alienation of a part of the gifted property. The proforma Defendants 2 and 3 have supported the Plaintiffs.

The trial Court found that the gift deed was genuine, valid and acted upon and was not conditional. Plaintiffs, therefore, had acquired good title to the property. Plaintiffs were also found to be in possession of the gifted property. Accordingly, the suit for permanent injunction was decreed.

In appeal, it was claimed that the terms of the gift deed had not been properly interpreted and on a true construction of Ext. 4, the Court should have come to hold that it was an conditional document and the donee having not fulfilled the conditions, the document was liable for cancellation and had, I therefore, been rightly cancelled.

The learned Appellate Judge quoted the material portion of the deed of gift in his Judgment and came to hold that for non-fulfillment of the conditions by the donee, the gift was liable to be revoked and the donor who was entitled to revoke has revoked. Accordingly, he vacated the decree of the trial Court and dismissed the suit. This reversing decree is assailed in second appeal.

In the deed of gift, two stipulations had been made: (i) the donee thereto would maintain the donor during his life time and (ii) there was a restriction upon the donee alienating the property without the consent of the donor. The material portion, when translated into English, in the deed of gift runs thus:

From today the lands and the buildings raised thereon and the trees standing over them with all rights therein vest in the donee; until the donee continues to be minor, his mother as guardian and when the donee comes of age he himself shall enjoy the property generation after generation as Malik and shall get their names mutated in the landlord''s records and on payment of rent in their own names obtain receipt during the life time of the donor; the parents of the donee and on attainment of majority, the donee shall maintain the donor and look after him and upon death of the donor look after the cremation, obsequies etc., and Sapinda according to custom. During our (donor''s) life time the donee shall not fall to maintain or look after us. In case the same be done, the donor 18 entitled to cancel the deed. During his life time the donor would be entitled to live in the house and in case during our life time there is need for alienation, the same would only be possible with our consent. It The lower appellate Court has found as a fact that the donee had neglected to maintain the donor and look after him. It has also found that there has been an alienation without the consent of the donor and thereby the stipulations in the deed of gift had been violated. The question for consideration is as to whether the deed of gift which had admittedly been accepted and acted upon is liable to be revoked for non-fulfillment of these conditions. As already indicated the trial Court had held the conditions to be void, whereas the lower appellate Court has come to a contrary conclusion. Reliance is placed by Mr. Patnaik for the Plaintiffs Appellants on the provision of Section 11 of the Transfer of Property Act which provides:

Where, on a transfer of property, an interest therein is 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 immoveable 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.

The first part of Section 11 is said to be applicable to support Plaintiff''s stand. Section 11 refers to a restriction on the enjoyment of property, while Section 10 refers to a restriction on the transfer of property. Both sections rest on the same principle that a condition repugnant to the interest created is void. Section 11 refers to absolute interests only. A restraint on transfer is repugnant to any interest in property whether absolute or limited, for the right of transfer is an incident of ownership. Similarly a restriction on enjoyment is repugnant to an absolute interest. It is claimed that in the first part of the deed of gift (referred to above, an absolute title had been created by the donee and therefore, the stipulations which are said to be conditions were void and not enforceable. Reliance is placed on two decisions in support of the aforesaid contention. In the case of Venkatasubbaiah v. Subbamma AIR 1956 A.P. 195, it has been stated that a gift subject to the condition that the donee should maintain the donor cannot be revoked u/s 126 for failure of the donee to maintain the donor firstly for the reason that there is no agreement between the parties that the gift should be either suspended or reviled; and secondly this should not depend on the will of the donor. Again, the failure of the donee to maintain the donor as undertaken by him in the document is not a contingency which could defeat the gift. All that could be said is that the default of the donee in that behalf amounts to want of consideration. Section 126 itself provides against the revocation of a document of gift for failure of consideration. If the donee does not maintain the donor as agreed to by him, the latter could take proper steps to recover maintenance etc. It is not open to a settlor to revoke a settlement at his will and pleasure and he has to get it set aside in a Court of law by putting forward such pleas as bear on the invalidity of gift deed. A similar question came up for consideration before this Court in the case of Kandha Das Vs. Indumati Devi, . In the gift deed under consideration in the reported decision, there was a clause as in the present gift deed. After examining the factual position, it was held thus:

As it appears, there is a clear averment in the earlier portion of Ext. 3 that the property described in the schedule is settled and a right to the property is created. Thereafter a restriction was sought to be imposed on the right to alienate during the lifetime of the granter and there was a further averment made that the property would be jointly enjoyed. The statement that neither the grantor nor the grantee would be in a position to alienate during the lifetime of the grantor without con sent runs counter to the creation of title in the grantee. I would, therefore, hold that in terms of the principle indicated in the aforesaid decision of the Supreme Court, (A.I.R. 1963 S. Order 890) 8, the subsequent clauses are not to be given effect to and title be held to have passed under Ext. 3 to the daughter.

In view of what has been said above, the condition which ''Were entered in the'' deed of gift (Ext. 4) are inoperative and the donor was not entitled to cancel the deed of gift and revoke the same for non-fulfillment of these conditions which were themselves non-existent. Accordingly, the lower appellate Court''s decree cannot be sustained. The second appeal is allowed and the judgment and decree of the lower appellate Court are vacated and those of the trial Court and restored there is no appearance at the time of hearing on behalf of the Respondents. Accordingly, I make no order as to costs.