Gauhati High Court
Page No.# 1/2 vs Dolly Kaur Das And 3 Ors on 22 January, 2025
Page No.# 1/20
GAHC010185072024
2025:GAU-AS:650
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/169/2024
DR JAYANTA KUMAR HAZARIKA
S/O LATE BROJENDRA HAZARIKA,
RESIDENT OF SHANTIPUR MAIN ROAD, OPP. ASHRAM ROAD, PS
BHARALAMUKH, GUWAHATI 781009
VERSUS
DOLLY KAUR DAS AND 3 ORS
W/O LATE BISWAJEET DAS,
RESIDENT OF SHANTIPUR MAIN ROAD, OPP. ASHRAM ROAD, PS
BHARALAMUKH, GUWAHATI 781009
PRESENT ADDRESS
VOLTAS LANE, NATUN SARANIA, NEAR KALI MANDIR, GANDHI BASTI,
GUWAHATI 781003
2:MANESWAR DEKA
S/O LATE JADAB CHANDRA DEKA
RESIDENT OF SHANTIPUR MAIN ROAD
OPP. ASHRAM ROAD
PS BHARALAMUKH
GUWAHATI 781009
3:SMTI. CHITRALEKHA CHAKRABORTY
W/O SRI ASHOK CHAKRABORTY AND D/O LATE BROJENDRA HAZARIKA
RESIDENT OF 1/301 ARUNODOI APARTMENT
DILIP HUZURI PATH
SARUMATORIA
PO AND PS DISPUR
GUWAHATI
4:SMTI. MEENAKSHI DAIMARI
W/O SHRI THOMAS DAIMARI AND D/O LATE BROJENDRA HAZARIKA
RESIDENT OF HOUSE NO. 79
BATAHGHULI
Page No.# 2/20
PANJABARI
GS ROAD
GUWAHATI 78103
Advocate for the Petitioner : MR. A SATTAR, MR Z MUKIT
Advocate for the Respondent : MR. S SHARMA, FOR CAVEATOR
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
22.01.2025 Heard Mr. A. Sattar, learned counsel for the appellant and Mr. S. Sharma, learned counsel for the respondents.
2. In this appeal, under Section 100 of the C.P.C., the appellant has challenged the correctness or otherwise of the Judgment and Decree, dated 12.07.2024, passed by the learned Civil Judge (Senior Judge) No. 1, Kamrup (M) at Guwahati [herein after first appellate court], in Title Appeal No. 02/2024.
3. It is to be noted here that vide impugned Judgment and Decree dated 12.07.2024, the learned Civil Judge (Senior Judge) No. 1, Kamrup (M) at Guwahati has affirmed the Judgment and Decree, dated 22.12.2023, passed by the learned Civil Judge (Junior Division) No. 2, Kamrup (M) at Guwahati [herein after trial court], in Title Suit No. 161/2022.
4. It is also to be noted here that in Title Suit No. 161/2022 (old T.S. No. 485/2012), the learned trial court had partly decreed the suit in respect of Schedule - 'E' path, but denied the reliefs in respect of Schedule - 'D' land of the plaint.
5. The background facts leading to filing of the present petition briefly stated as under:-
Page No.# 3/20 "The appellant herein as plaintiff had instituted a suit against the defendant/respondent No. 1 herein, Smt. Dolly Kaur Das, seeking a declaration that she adhere to the conditions in Gift Deed No. 6483, dated 11.08.1978 and also for having a Sale Deed No. 8556/11, dated 22.09.2011, executed by Smt. Dolly Kaur Das in favor of Maneswar Deka canceled, as it goes against the terms of the Gift Deed and also seeking injunction to prevent any interference or alienation of Schedule - 'E' land by Smt. Dolly Kaur Das or her associates.
The case of the plaintiff/appellant is that Kalicharan Das married to Smt. Premada Bala Das, but they were not blessed with any children. Thereafter, Kalicharan Das married Smt. Birenda Bala Das and out of their wedlock two sons and three daughters were born. Thus, Smt. Premada Bala Das and Smt. Birendra Bala Das, by dint of purchase and possession, became the joint owners and title holder of Schedule - 'A' plot of land measuring 4 Kathas pertaining to Dag No. 83 of K.P. Patta No. 27, which, after re-settlement operation, has been changed to Dag No. 369 (old), 401 (New) of K.P. Pata No. 528 (old), 132 (New) of Village Bharalumukh, Pratham Khanda (Santipur Khanda) of Mouza Jalukbari and out of their said purchased plot of land had executed a gift deed, first in point of time, in respect of the schedule - 'B' land of the plaint, measuring 1 Katha, to their son-in-law, namely Brojendra Nath Hazarika, i.e. the husband of their daughter, namely Smti. Urvashi Das, by way of registered Gift deed No. 3839, dated 08.06.1961, which was registered on 09.06.1961. Thereafter, vide Sale Deed, dated 11.08.1978, the aforesaid joint owners had sold the schedule - 'C' land of the plaint, measuring 1 Katha 6 Lessas, in favour of their above named son-in-law, namely Shri. Brojendra Nath Hazarika, i.e. the husband of Smti. Urvashi Page No.# 4/20 Das and in that way the father of the plaintiff became the absolute owner and title holder of two plots of land i.e. the Schedule - 'B' & 'C' land comprising of 1 katha and 1 katha 6 lessas, respectively, which is equal to total 2 kathas and 6 lessas of land. There is no objection of any nature, whatsoever, from any corner of their family.
The plaintiff/appellant, herein further claimed that the donor, while gifting the Schedule - 'B' land vide Deed No. 3839, dated 08.06.1961, had themselves expressed their desire to the effect that to the northern side of the said gifted land, there would be a 9 ft wide proposed road for ingress and egress and in fact carved out a strip of 9 ft. wide passage (Schedule - 'E' of the plaint) from the total land owned by them for the use of one and all. The father of the plaintiff in that way enjoyed the properties mentioned in Schedule - 'B' & 'C' land below together with Schedule - 'E' passage till he breathed last on 03.03.1991.
Thereafter, the said properties devolved upon his only son, i.e. the plaintiff/appellant and the two daughters, i.e. pro-forma defendants, namely Smt. Chitralekha Hazarika (now Smti. Chitralekha Chakraborty) and Smti Meenakshi Hazarika (now Smiti Meenakshi Daimari), born out of the wedlock of Late Brojendra Nath Hazarika and Smti. Urvashi Das.
Smti. Birendra Bala Das and Premada Bala Das, out of their remaining land, measuring 1 katha 14 lessas had executed another Gift Deed, No. 6483, dated 11.08.1978, in respect of the land of Schedule - 'D' of the plaint measuring 1 Katha 2 Lessas in favour of their middle daughter, namely Smt. Gunada Bala Das, with four conditions, to which the donee had accepted the gift with all the four conditions attached to it, and the said conditions are read as under:-
Page No.# 5/20 '(i) That, until the donors die, the donated property shall be owned and possessed by them for dwelling purposes and during that period the donee i.e. Smti. Gunada Bala Das shall be responsible to maintain them.
(ii) That, the husband of Smti. Gunada Bala Das i.e Shri Birendra Singh, S/o Shri. Arjun Singh shall have no right of any kind over the donated land. However, the son of Smti. Gunada Bala Das shall have the right of use and possession of the donated land.
(iii) That, in case of any eventuality arising for alienation of the gifted land to any other person other than her own son, than the donee i.e. Smti.
Gunada Bala Das shall have to alienate the same either to Shri. Brojendra Nath Hazarika, S/o Late Purna kanta Hazarika or his legal heirs i.e. his Sons and daughters only and not to others.
(iv) That, at the northern side of the donated land there shall be a passage measuring 9 ft in width (Schedule 'E' of the plaint) arising from Shantipur Main Road and culminating into the land of Shri. Brojendra Nath Hazarika for the ingress and egress of all concern and the said passage shall be kept free up to its 60 ft height and it cannot be made the subject matter of any construction either for dwelling purposes or for storing of any materials or shall be encumbered in any manner whatsoever.' Thereafter, the donee, namely Gunada Bala Das was blessed with a son, namely, Shri Biswajeet Das, out of her wedlock with Shri Birendra Singh and the above mentioned son of Smt. Gunada Bala Das expired on 18.07.2006, i.e. during the life time of his mother and as such, he predeceased the mother. Said Biswajeet Das, though had married with the defendant No. 1, yet, during his lifetime said defendant No. 1 had Page No.# 6/20 deserted him and started living at South Sarania, Guwahati and as such, she is the estrange wife of Biswajeet Das and no child was born out of the said wedlock.
After the death of the donee, Smt. Gunada Bala Das on 23.01.2008, the defendant No. 1 claiming herself to be the daughter-in- law of Gunada Bala Das, got her name mutated in respect of the Schedule - 'D' land by filing K. P. Case No. 441/07-08, in the office of the Circle Officer, Guwahati Revenue Circle. Thereafter, the Circle Officer, without observing the required formalities, had granted the mutation, vide order dated 06.05.2009, wherein the name of a dead person, namely Late Biswajeet Das was mutated first in point of time and thereafter, the name of the defendant No. 1 was brought on the revenue record by right of succession and inheritance, which in all respect was untenable in the eye of law.
Accordingly, the plaintiff/appellant had preferred a revenue appeal, being R.A. No. 7(K)/2010-11. Thereafter, the Learned Additional Deputy Commissioner, vide his judgment dated 19.7.2011, had opined that the Revenue Appellate Court is not inclined to interfere with the order, dated 06.05.2009, passed in K.P. Case No. 441/07-08 and directed the parties to go to proper court of law for redressal of their grievances.
Thereafter, the Title Suit No. 161/2022, was instituted by the plaintiff before the learned trial court seeking the relief of declaration of his right, title and interest over Schedule - 'D' and 'E' and also for injunction.
Then the learned trial court, upon pleadings of the parties, had framed following issues:-
Page No.# 7/20 '1. Whether there is cause of action for the suit?
2. Whether the suit is maintainable in its present form?
3. Whether there is cause of action for the suit?
4. Whether the suit is bad for non-joinder of necessary party?
5. Whether the plaintiffs in terms of gift deed no.3839/61 and deed no.6482/78 are entitled to decree as prayed for?
6. Whether the plaintiff is entitled to decree as prayed for?' The learned trial court had also framed one additional issue on 11.09.2014, as under:-
(I) Whether the sale deed bearing deed no. 8556/11 dated 22/09/2011 executed by the defendant No.1 in favour of defendant no. 2 is liable to be cancelled?
Thereafter, the learned trial court again framed two additional issues on 05.10.2023, as under:-
1. Whether the defendant No.1 is bound by condition No.3 of the Gift Deed No.6483/78 dated 11.08.1978?
2. Whether the plaintiff is entitled to the relief as claimed in the plaint in respect of the Schedule-'E' land, in terms of condition No.4 of the Gift Deed No.6483/78 dated 11.08.1978?
The learned trial court thereafter, considering the evidence so adduced by the parties and hearing learned Advocates of both sides, had partly decreed the suit, granting relief in respect of Schedule - 'E' path, but denied the relief in respect of Schedule - 'D' land.
Page No.# 8/20 Being aggrieved, the plaintiff/appellant had preferred an appeal, being Title Appeal No. 2/2024, under Order 41 Rule 1 & 2, read with Section 96 of the C.P.C. against the Judgment and Decree dated 22.12.2023, before the court of learned Civil Judge (Senior Division) No.1, Kamrup(M), herein after first appellate court. Thereafter, the learned first appellate court, having heard the submissions of learned counsel for both the parties, had formulated following points for determination:-
1. Did the learned Civil Judge Junior No-2 appropriately address and resolve additional issues I, II, and III?
2. Did the learned Civil Judge Junior Division No-
2 make legal and factual mistakes in adjudicating additional issued I,II and III?
3. Did the learned Civil Judge Junior Division No.2 comprehensively analyze the evidence and establish legal principles when deciding additional issues- I, II, and III?' Thereafter, hearing learned Advocates of both sides and considering the materials placed on record the learned first appellate court was pleased to dismiss the said appeal, vide impugned judgment and decree, dated 12th July, 2024.
Being aggrieved, the appellant herein, preferred this second appeal before this court, under Section 100 of the C.P.C. against the Judgment and Decree dated 12.07.2024, suggesting following substantial questions of law:-
"(i) As to whether the learned courts below were right in holding that the condition No. (iii) of Gift deed No. 6483, dated 11.08.1978, (Exhibit No. 5) Page No.# 9/20 was hit by the provisions of Section 10 of the Transfer of Property Act, 1882, whereas the said condition No. (iii) only imposes a partial restrain to the effect that on eventuality arising for alienation of the gifted land to any other person other than the son of the donee Gunada Bala Das, the same shall be alienated either to Shri. Brojendra Nath Hazarika, S/o Late Purna kanta Hazarika or his legal heirs (sons and daughters) only and not to others?
(ii) As to whether the learned courts below were right in holding that the defendant No. 1 being the legal heir of the donee Gunada Bala Das would not be bound by the condition No. (iii) of the Gift deed No. 6483, dated 11.08.1978 (Exhibit No. 5), merely by the fact that in express terms the same is not mentioned in the said Gift deed, whereas the said defendant No.1 in her cross- examination admits to the fact that the conditions of the Exhibit No. 5 Gift Deed was / is attached to the land in question and was accepted and followed by the donee?
(iii) As to whether the learned courts below were right in passing the decree of permanent and perpetual injunction only against the defendant No. 1 restraining her from altering the nature or character of the Schedule 'E' strip of land or transferring it to another party, whereas admittedly the defendant No. 2 on the strength of the Sale Deed No. 8556/2011 dated 22.09.2011 (Exhibit 9 / Exhibit D) executed by the defendant No. 1 had already came in possession of the Schedule 'D' land and was / is using the Schedule 'E' path of the plaint?"
6. Mr. Sattar, learned counsel for the appellant submits that there are Page No.# 10/20 substantial questions of law in this appeal and there is a requirement of admitting this appeal for hearing. Taking this court, through the judgment of learned first appellate court, Mr. Sattar submits that there is perversity in the judgment of the learned first appellate court. Mr. Sattar further submits that the defendant No. 1, in her cross-examination had admitted to the fact that the donee of the conditional gift deed No. 6483, dated 11.08.1978, namely, Gunada Bala Das had accepted and followed the conditions mentioned in the said gift deed No. 6483, dated 11.08.1978, but, had not challenged the said conditions of the gift deed to be illegal and contrary to the Transfer of Property Act, 1882 and as such, the learned first appellate court ought not to have held that the defendant No. 1, being the legal heir of the donee Gunada Bala Das, was/is not bound by the conditions of the Gift Deed No. 6483, dated 11.08.1978, merely because of the fact that in express terms the same was/is not mentioned in the Gift Deed in question and not in conformity with the evidence on record or in other words is absolutely perverse to it and the judgment of the learned first appellate court is based upon such perverse finding is not sustainable in the eye of law.
6.1. Mr. Sattar, also, referring to Section 10 of the Transfer of Property Act, submits that conditional gift is permissible under the said Section, however, according to him, absolute bar is not permissible and in the case in hand, the condition No. 3 of the gift deed is not an absolute bar in transferring the land. Further, Mr. Sattar submits that as per conditions of the gift deed, the land ought to have been offered first to the appellant herein, but, without doing so, the respondent No. 1 had sold the land to respondent No. 2, by executing a registered sale deed and in view of the condition No.3, so stipulated in the gift deed, such sale is not permissible, without first offering to sell to the persons mentioned in the gift deed i.e. to Brajendra Nath Hazarika or his legal heirs i.e. sons or daughters. It is the further submission of Mr. Sattar that there is perversity in the finding of the Page No.# 11/20 facts, so recorded by the learned courts below and also in application of law to the said facts and as such, there is substantial question of law involved herein. Therefore, it is contended to admit the appeal.
6.2. In support of his submission, Mr. Sattar has referred to the following decisions :-
(i) S. Sarojini Amma vs. Velayudhan Pillai Sreekumar, reported in (2019) 11 SCC 391;
(ii) Zoroastrian Cooperative Societies (Urban) and Others; reported in (2005) 5 SCC 632; and
(iii) Hero Vinoth (Minor) vs. Seshammal, reported in (2006) 5 SCC 545.
7. On the other hand, Mr. Sharma, learned counsel for the respondents, has supported the impugned judgment and decree, dated 12 th July, 2024. Mr. Sharma submits that no substantial question of law is involved herein and there is concurrent finding of facts by both the learned courts below and on such count, this court cannot exercise its jurisdiction under Section 100 of the C.P.C. and cannot enter into the facts of the case and substitute it's own view with that of the learned courts below. As such, Mr. Sharma submits that before admitting the appeal, there should be a hearing to ascertain as to whether any substantial question of law is involved herein this appeal or not.
7.1. Mr. Sharma also submits that condition No. 3 in the gift deed put an absolute bar in alienation of the property by the donee and in view of the Section 10 of the Transfer of Property Act, there cannot be any absolute bar and as such, there is no infirmity or illegality in the finding, so recorded by the learned courts below. Mr. Sharma further submits that though there is a bar in alienation of the land by the Page No.# 12/20 donee, yet, it is not binding upon the legal heirs of the donee, as the donee has already suffered demise and as such, there is no infirmity or illegality in the impugned judgment and decree and therefore, it is contended to dismiss this appeal.
7.2. In support of his submission, Mr. Sharma has referred following decisions:-
(i) N. Thajudeen vs. Tamil Nadu Khadi and Village Industries Board, in Civil Appeal No. 6333/2013;
(ii) Bhavani Amma Kanakadevi vs. C.S.I. Dakshina Kerala Maha Idavaka, reported in AIR 2008 (KER);
(iii) Sehdev Singh Verma vs. J.P.S. Verma & Another, reported in AIR 2016;
(iv) Gayasi Ram Others vs. Shahabuddin & Others, reported in AIR 1935;
(v) Fatima Sarohini Suresh Others vs. K. Saraswathi, reported in AIR 1986 Kerala;
(vi) Manohar Shivram Swami vs. Mahadeo Guruling Swami & Other, reported in AIR 1988 (Bombay);
(vii) Kondiba Dagadu Kadam vs. Sabitribai Sopan Gujar & Others, reported in AIR 1999 SC 2213; and
(viii) Sridhar vs. N. Revana, reported in AIR 2020 SC 824.
8. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the memo of appeal, as well as the substantial questions of law, suggested therein, and also perused the Judgment and Decree, dated 12.07.2024, passed by the learned Civil Judge (Senior Judge) No. 1, Kamrup (M) at Guwahati, in Title Appeal No. 02/2024 and also perused the Judgment and Decree Page No.# 13/20 dated 22.12.2023, passed by the learned Civil Judge (Junior Division) No. 2, Kamrup (M) at Guwahati, in Title Suit No. 161/2022.
9. In view of the submissions advanced at the bar, the issue, to be answered by this court is:-
Whether any substantial question of law, as suggested herein this case by Mr. Sattar, the learned counsel for the appellant is involved or not.
10. It is, however, well settled in a catena of decision of Hon'ble Supreme Court that sitting in second appeal; this court cannot re-appreciate the facts and disturb the concurrent finding of facts by the learned courts below. It is also well settled that in order to admit an appeal, under Section 100 of the C.P.C., there must be substantial question of law.
10.1. Reference in this context can be made to a decision in Chandrika Singh (Dead) by LRS & Anr. vs. Sarjug Singh & Anr., reported in (2006) 12 SCC 49, wherein its has been held that the High Court, under Section 100 CPC, has limited jurisdiction. To deal with cases having a substantial question of law, the Court has observed as under:-
"12. ... While exercising its jurisdiction under Section 100 of the Code of Civil Procedure, the High Court is required to formulate a substantial question of law in relation to a finding of fact. The High Court exercises a limited jurisdiction in that behalf. Ordinarily unless there exists a sufficient and cogent reason, the findings of fact arrived at by the courts below are binding on the High Court..."
10.2. Again, in the case of Chacko & Anr. v. Mahadevan, reported in Page No.# 14/20 (2007) 7 SCC 363, while dealing with the jurisdiction under Section 96 and 100 CPC, this Court laid down as under:-
"6. It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate court can go into questions of fact, whereas in a second appeal filed under Section 100 CPC the High Court cannot interfere with the findings of fact of the first appellate court, and it is confined only to questions of law."
10.3. In the case of Hero Vinoth v. Seshammal, reported in (2006) 5 SCC 545, the principles relating to Section 100 CPC is summarised as under:-
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express Page No.# 15/20 provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where:-
(i) the courts below have ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or
(iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
11. As submitted by Mr. Sattar, learned counsel for the appellant, the entire dispute revolves around the condition No. 3 of the gift deed, Exhibit - '5'/Exhibit - 'D'. Now, the thing to be looked into is whether the condition No.3 in the Exhibit-'5' operates as an absolute bar in alienation of the property by the donee and such condition is also binding upon the legal heirs of the donee.
12. There is no quarrel at the bar that conditional gift deed is permissible under Page No.# 16/20 the law. There is also no quarrel at the bar that a condition restraining alienation of the property of the gift deed is not permissible in law. The mandate of Section 10 of the Transfer of Property Act is clear in this regard which read as under:-
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."
13. In the instant case, condition No. 3 in the gift deed, Exhibit - 5/Exhibit - 'D' is extracted herein below :-
"(iii) That in case of any eventuality arising for alienation of the gifted land to any other person other than her own son than the donee i.e. Smti. Gunada Bala Das shall have to alienate the same either to Shri. Brojendra Nath Hazarika, S/o Late Purna kanta Hazarika or hislegal heirs i.e. his sons and daughters only and not to others."
14. A bare perusal of the condition indicates that it binds the donee in respect of alienation of the gifted land. In the event of alienation of the same other than her own son, the donee shall have to alienate the same either to Shri Brojendra Nath Hazarika or his legal heirs, i.e. his sons and daughters only and not to others.
Page No.# 17/20
15. Though Mr. Sattar, the learned counsel for the appellant submits that this condition does not operate as an absolute bar in alienation and before alienating it to others, the respondent No.1 herein ought to have offered it first to the appellant herein yet such a condition left this court unimpressed. Firstly, there is no such stipulation in the condition No.3 that before alienating to other persons, the same has to be offered first to the appellant herein. Secondly, the said stipulation bars the donee from the enjoyment of the property at her volition and free will. This condition is an absolute bar in as much as it binds the donee to alienate the land in question only to Late Brojendra Nath Hazarika, S/o Late Purna kanta Hazarika or his legal heirs i.e. his sons and daughters only and not to others. Thus, whatever price Brojendra Nath Hazarika or his legal heirs' offers to her, she has to accept the same. Except that no other option is available to her because of the said stipulation. She would not get the market price of the same if Brojendra Nath Hazarika or his legal heirs' refuse offers, which she otherwise would have received.
16. Thus, in view of Section 10 of Transfer of Property Act, the condition in the gift deed, dated 11.08.1978, that Smti. Gunada Bala Das, predecessor-in-interest of defendant No. 1 shall not alienate the property, except to Brajendra Nath Hazarika or his sons and daughters, is a void condition. A restriction, if it is repugnant to the absolute estate, is void on that ground.
17. Reference in this context can be made to a decision of Hon'ble Supreme Court in the case of Sridhar vs. N. Revanna reported in AIR 2020 SUPREME COURT 824, wherein the issue in question has been dealt with as under:-
"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 his interest in the Page No.# 18/20 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. It is also well settled that where conditions attached to gift deprive the property of its legal incidents or depreciate the completeness of the property, it will stand void and invalid despite the gift being considered a valid transaction. (See- Saraju Bala v. Jyotirmoyee, reported in AIR 1931 PC 179 (India).
19. It is also to be mentioned here that there is no recital in the gift deed a superseded clause that if the donee or his followers fails to comply with the superseded clause, then the property has to be reverted back to the donor. Besides, there is no stipulation in the gift deed as to whether the stipulation in the gift deed will bind the legal heirs of the donee or not.
20. It appears that the learned first appellate court had elaborately dealt with all aspect of the matter and relying upon some decisions had arrived at a finding that the condition No. 3 of the Gift Deed No. 6483, dated 11.08.1978, which imposes restrictions on alienation of the property exclusively to Shri Brojendra Nath Hazarika or to his progeny, represents an absolute limitation on alienation and thereby, deemed void under Section 10 of the Transfer Property Act and consequently, the defendant No. 1 is not bound by the condition No. 3 of the gift deed and thus, rendering the Sale Deed No. 8556/11, dated 22.09.2011, executed by Defendant No. 1 in favor of Defendant No. 2 legally valid.
21. The finding of the learned first appellate court, while examined in the light of the given facts and circumstances on the record, this court is unable to agree with the submission of Mr. Sattar, learned counsel for the appellant that the finding is perverse. Rather, it appears that the finding so recorded by the learned courts Page No.# 19/20 below appears to be a reasoned finding supported by numbers of decisions, relied upon by them.
22. Thus, this court, having adjudged the submissions of learned counsel for both the parties, and also considering the materials placed on record and after going through the impugned judgments and decrees, unable to find out any substantial question of law here in this appeal.
23. I have carefully gone through the decisions referred by Mr. Sattar, learned counsel for the appellant. In the case of S. Sarojini Amma (supra) the issue involved was whether a document styled as gift deed but admittedly executed for consideration, part of which has been paid and the balance promised to be paid, can be treated as formal document or instrument of gift. And another related question is whether a gift deed reserving the right of the donor to keep possession and right of enjoyment enforceable after the death of the executant is a gift or a will. It was held that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed. It was also held that in the said case, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. Thereafter, it was held that there was no complete gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed.
23.1. Then in the case of Zoroastrian Coop. Housing Society Ltd.
Page No.# 20/20 (supra) while dealing with Section 10 of the Transfer of Property Act, it has been held that the section relieves a transferee of immovable property from an absolute restraint placed on his right to deal with the property in his capacity as an owner thereof. As per Section 10, a condition restraining alienation would be void. The section applies to a case where property is transferred subject to a condition or limitation absolutely restraining the transferee from parting with his interest in the property. For making such a condition invalid, the restraint must be an absolute restraint. It must be a restraint imposed while the property is being transferred to the transferee.
23.2. Thus, it appears that the cases cited by Mr. Sattar are distinguishable on facts and are not of much assistance in solving the issue before this court.
23.3. Also I have gone through the other decisions referred by Mr. Sharma, the learned counsel for the respondent, which proceeds on their own facts and reference to all those decision is found to be not necessary herein this case.
24. In the result, and for the reason discussed here in above, and also applying the proposition of law laid down in the case of Chandrika Singh (Dead) by LRS & Anr. vs. Sarjug Singh & Anr.(supra), Chacko & Anr.(supra) and also in the case of Hero Vinoth (supra) no substantial question of law is found to be involved here in this appeal. Consequently, this appeal stands dismissed, at the motion stage itself leaving the parties to bear their own cost.
JUDGE Comparing Assistant