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:-
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“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:-
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‘(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
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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:-
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‘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 judgmentand 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.# 9/20was 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
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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
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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
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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.# 15/20provisions 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
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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.# 18/20property, 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
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