The main legal point established in the judgment is that the right to alienate property may not follow a right of user, and if the right to alienate is specifically denied, the donor has no authority to gift the property.

Ranjan Gogoi, J.

1. This is a plaintiff's second appeal against the judgment and decree of reversal, dated 21.4.1997 passed in Title Appeal No. 8 of 1995.

2. The basic facts that would be necessary for a proper appreciation of the question(s) of law arising in the present second appeal may be noticed hereunder.

The appellant, as the plaintiff, instituted a suit being Title Suit No. 55 of 1992 in the Court of the Learned Munsiff No. 2, Silchar (now Civil Judge Junior Division No. 2). According to the plaintiff, the suit land measuring 15 kathas 11 chattaks covered by different dags of separate R.S. Pattas situated at village Ambikapur Part X, Ph. Barakpar, District Cachar was gifted to him by one Sona Bibi by executing a deed of gift dated 1.11.1981. According to the plaintiff, the suit land and some other lands fell to the share of his donor, Sona Bibi, on the basis of a family partition effected by and between the predecessors-in-interest of the defendants No. 1 to 23 by means of written agreements dated 14.9.1948 and 30.8.1952. According to the plaintiff, on the basis of permission for construction granted to him by the Silchar Development Authority, he had taken steps to start the construction whereupon the defendants created obstructions and forcibly entered into the suit land and continued to illegally occupy part of the same. Accordingly, the suit in question was filed praying for the relief of declaration of right, title and interest; for confirmation of possession as well as for recovery of possession of part of the suit property, details of which are available in the schedule to the plaint.

3. The claim raised by the plaintiff in the suit was disputed by the defendants No. 1 to 9 by filing a joint written statement. According to the defendants, by the agreement, dated 14.9.1948 Sona Bibi was given only the right of enjoyment over 1 Bigha of land appertaining to Dag No. 133 of R.S. Patta No. 53. By the said agreement dated 14.9.1948, the power of alienation of the said property was specifically denied to Sona Bibi. Thereafter it appears that the share of one of the parties to the family partition fell short and the aforesaid shortage was adjusted against the land allotted to Sona Bibi for her enjoyment and a supplementary deed of agreement was executed by and between the parties on 30.8.1952 which visualised reversion of the property given to Sona Bibi, on her death, in favour of Nosi Mia Choudhury and Md. Gabru Mia Choudhury, i.e., two other persons included in the deed of family partition dated 14.9.1948. According to the defendants in the suit, as the deed of family partition specifically denied the power of alienation of the property allotted to Sona Bibi and as what was granted was only a right to use the property during her lifetime, Sona Bibi had no legal authority to gift the suit land in favour of the plaintiff by executing the deed of gift dated 1.11.1981. On the aforesaid basis, the right, title and interest of the plaintiff to the suit property as well as the consequential reliefs prayed for in the suit were sought to be denied by the defendants.

4. The learned trial Court on a consideration of the rival pleadings and the contentions advanced took the view that the restraint on the right to alienate the suit property, as imposed by the deeds of family partition dated 14.9.1948 and 30.8.1952, were contrary to the provisions of. Section 10 of the Transfer of Property Act and that such a restraint on the beneficial enjoyment of ownership of immovable property was opposed to public policy. Accordingly, the learned trial court thought it proper to hold that the plaintiff had derived a valid title on the basis of the gift deed dated 1.11.1981 executed by Sona Bibi. The suit of the plaintiff was consequently decreed by the learned trial court.

In the appeal filed, the learned First Appellate Court took the view that the property having vested in Sona Bibi on the basis of a family partition, the conditions laid d