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CASE NO.: Appeal (civil)  4385 of 2001

PETITIONER: F.M. Devaru Ganapati Bhat                                        

RESPONDENT: Prabhakar Ganapathi Bhat                                         

DATE OF JUDGMENT: 19/12/2003

BENCH: Y.K.Sabharwal & Dr.A.R.Lakshmanan

JUDGMENT: J U D G M E N T

Y.K. Sabharwal, J.

       Parties are brothers.  The appellant/defendant is the elder brother.  The  respondent/plaintiff is the younger brother.  The suit for partition and possession  filed by the respondent claiming one-half share in suit properties has been decreed  by the trial court.  The first appeal of the appellant has been dismissed by the High  Court by the impugned judgment.   

The basis of claim in the suit was the gift deed dated 9th September, 1947  executed by Smt. Mahadevi, younger sister of Ganapathi, father of the parties.   When gift deed was executed, the appellant was a minor aged 13 years.  At that  time, respondent was not born.  In the year 1936, the suit properties were sold by  Ganapathi to his younger sister Mahadevi.  The sale was effected due to some  helpless conditions of Ganapathi.  Mahadevi was issueless.  She enjoyed  properties from the year 1936 upto execution of the gift deed.  The same  properties were gifted under the gift deed in question.  The dispute in this appeal  is, however, restricted to one gifted property, namely, survey No.306.  The  appellant is not disputing the claim of the respondent in respect of partition of  remaining properties.  According to the appellant, property survey No.306 under  the gift deed was given to him absolutely and the respondent, on true construction  of the gift deed, has no right to claim partition of the said property.  Alternatively,  it is contended that creation of interest in favour of the respondent who was not  born when the gift deed was executed is invalid in view of Section 13 of the  Transfer of Property Act, 1882 (for short, ’the Act’).  Both these contentions have  not found favour with the trial court and the High Court.         Two questions that fall for consideration in this appeal are : 1.      Construction of gift deed dated September 9, 1947; and 2.      Validity of creation of interest in the property in question in favour of  respondent in view of Section 13 of the Act.         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,  House wife, 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

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properties and house, I am thinking to gift all the  properties by way 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.  As described herein my malki right in  the below mentioned schedule immovable property,  house and the Betta land/Bena land and Kumki land,  etc., situated in Yelugar village of Keremane in  Siddapur Taluk within the jurisdiction/range of  Siddapur Sub-Registrar have been gifted and given to  you today.  Henceforth neither myself nor anybody is  having right, title and interest in any manner over the  schedule immovable property and house etc. and you  have to enjoy this property as full owner.  Therefore,  in future you have to pay and bear the Revenue, Tax,  Local Funds and repair the Government boundary  stones, etc.  You have to enjoy and succeed to the  property as your own.  Since you are a minor, the  schedule property immovable property and house are  to be cultivated/managed by your father Ganapathi  Devaru Bhat as the guardian of minor child and the  same is to be reserved for you till you attain the age of  majority.  Among the property, I have retained the  property of Sy.No.306, area 1-6-0, Assessment 16-0-0,  for my livelihood till my demise and after my death,  this property will be your and nobody else shall have  right or title over it.  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.         Description/Scheduled of immovable property  situated at Yalugar Village of Siddapur Taluk."

       The execution of the gift deed is not in question.  The validity of the gift  deed is also not in question except to the extent indicated hereinbefore.   The rule of construction is well settled that the intention of the executor of a  document is to be ascertained after considering all the words in their ordinary  natural sense.  The document is required to be read as a whole to ascertain the  intention of the executant.  It is also necessary to take into account the  circumstances under which any particular words may have been used.   Now, keeping in view the above principles, let us consider the admitted  facts of the present case.  The donor purchased all properties from her brother on  account of his helpless conditions.  When the gift was made, the parents of the  parties were alive.  The properties were ancestral.  The donor was issueless.  The  appellant was minor.  The respondent was not born.  Date of birth of the  respondent is 9th November, 1949.   We would now revert to the gift deed.  It clearly shows the intention of the  donor that if after execution of the gift deed any male children are born, the  properties should be enjoyed by the appellant with them as joint holder.  With  reference to property survey No.306, the words "this property will be your and  nobody else shall have right and title over it" cannot 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 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 of the donor to  exclude the unborn male children from the title of property survey No.306 which

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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 of 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 of the appellant.  The language  and tenor of the document clearly shows that the intention of Mahadevi 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 of unborn person\027Where,  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. 20. When unborn person acquires vested interest  on transfer for his benefit.\027Where, 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 that since the donor  did not create 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 of the 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 plaintiff’s 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 of the successive heirs of Dhuj 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 of the 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,

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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 of the 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 of the instant case.  The present is not  a case where any successive interest has been created under the gift deed.   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  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 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.