IMPORTANT POINTS
Condition in gift deed that donee shall not alienate the property is void condition.
Execution of gift deed in favour of a person who is not born and putting condition on person unborn are entirely different.

JUDGMENT :

ASHOK BHUSHAN, J.

1. This appeal has been filed by the plaintiffs against the judgment dated 18.01.2012 of the High Court of Karnataka in Regular First Appeal No. 69 of 2002 by which the High court partly allowed the Regular First Appeal of the plaintiffs-appellants.

2. Brief facts of the case for deciding this appeal are:

The parties shall be referred to as described in the suit. One Shri Muniswamappa, great grandfather of the plaintiffs and grandfather of defendant No. 1, was the absolute owner of the suit schedule property. Shri Muniswamappa executed two gift deeds dated 05.06.1957 in favour of defendant No. 1, N. Revanna. The gift deed was executed by Muniswamappa in favour of his grandson, N. Revanna. The gift deed also contained a condition that donee and his younger brothers hereafter had no right to alienate the scheduled property. Defendant No. 1, N. Revanna executed sale deeds dated 07.10.1985, 08.10.1985 and 10.10.1985 in favour of defendant Nos.2 to 5. Defendant Nos.6 and 7 were the tenants of the premises. Original Suit No. 11133 of 1995 was filed by the plaintiffs-appellants against N. Revanna, defendant No. 1, vendees as defendant Nos.2 to 5 and defendant Nos. 6 and 7 in which following reliefs have been claimed:

“PRAYERS:

(a) to declare that the plaintiffs are the absolute owners of the suit schedule properties or in alternative to declare that the plaintiffs are the revert loners in interests of the suit schedule properties.

(b) to declare the alienations in favour of defendants 2 to 5 by the first defendant dated 7.10.1985, 8.10.1985 and 10.10.1985 are null and void and set aside the same as the same is not binding on these plaintiffs.

(c) to grant for permanent injunction restraining the defendants 2 to 5 from taking possession of the suit schedule properties from the defendants 6 and 7 and also restraining the defendants 2 to 5 dismantling the suit schedule properties.

(d) to direct defendants 2 to 5 deliver the vacant possession of properties comprised in item No. 1 of the schedule properties which they have taken possession from Sri Subramanayam and Sri Selvaraj.

(e) award costs and such other reliefs as this Hon’ble Court may deems fit in the circumstances of the case.”

3. The case of the plaintiffs was that N. Revanna received the suit properties by registered gift deed dated 05.06.1957 from his grandfather, Muniswamappa and as per the gift deed defendant No. 1 and his younger brothers who may be born had no right to alienate the suit schedule property. It was pleaded that sale deed executed by defendant No. 1 is void and the plaintiffs being sons of defendant No. 1 and great grandsons of Muniswamappa are the absolute owners of the property. Both the plaintiffs were minors and the suit was filed by their next friend and guardian paternal grandmother, Smt. Jayamma.

4. Defendant No. 1 filed written statement supporting the case of the plaintiffs stating that as he was in dire need of money and proceeded under the bona fide belief that there was no legal impediment to sell the property. Defendant No. 7 also filed written statement. Defendant Nos. 2 to 5 filed a common written statement questioning the bona fide of the plaintiffs and their guardian. They pleaded that the plaintiffs have been set up by the vendor. Defendant No. 1 acting in addendum in seeking to avoid the sale on a specious plea that there was a condition that the property could not have been alienated by defendant No. 1. Trial Court framed the following five issues:

“1. Whether the plaintiff proves that plaintiffs have got absolute right over the suit schedule properties?

2. Whether the plaintiff proves that defendant No. 1 has no right to alienate suit schedule property in favour of Defendant No. 2 and Defendant No. 5 and that said alienation is not binding on the plaintiffs?

3. Whether the defendants prove that condition of restraint on alienation is void in law?

4. Whether the plaintiffs are entitled to the relief sought?

5. What order or