In a second appeal regarding a gift deed, the Madras High Court held that a condition restraining alienation is void under Section 10 of the Transfer of Property Act and Section 126 does not permit imposing such conditions on an absolute gift.
The second appeal was dismissed, confirming the judgment and decree of the courts below.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A(MD)No.498 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A(MD)No.498 of 2006 and
M.P(MD) No.1 of 2011
A.Dhinakaran
...Appellant
-Vs-
1.T.Padmavathy
2.Chandrasekaran
3.A.Prabhakaran
4.Rengarajan
5.Charles Appathurai
6.Charles Singh Gnanamuthu ... Respondents
PRAYER : Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree made in A.S.No.58 of 2004 dated 19.08.2005 on the file of the Principal Subordinate Court, Nagercoil, confirming the judgment and decree in O.S.No.296 of 1998, dated 04.09.2003 on the file of the 2nd Additional District Munsif Court, Nagercoil.
1/12
| S.A(MD)No.498 of 2006 | |
|---|---|
| For Appellant | : Mr.N.Krishnaveni Senior Counsel for Mr.R.Murugan |
| For R1 and R2 | : Mrs.P.Jessi Jeva Priya for Ms.A.Bhavaneswari |
| For R3 to R6 | : No appearance |
JUDGMENT
The plaintiff in the suit is the appellant. The appellant filed a suit for injunction restraining the second respondent from alienating the suit property in derogation of obligation contained in the deed of gift dated 16.07.1993 marked as Ex.A.5. The appellant also prayed for an alternative relief that in case any alienation is made during the pendency of the suit, the same shall be declared as void ab initio. The trial Court came to the conclusion that the conditions mentioned in Ex.A.5 so as to affect the absolute gift in favour of the second respondent was not valid and the appellant is not entitled to maintain a suit for injunction based on those conditions. Hence, the suit was dismissed by the trial Court. Aggrieved by the same, the appellant filed an appeal in A.S.No.58 of 2004 on the file of Principal Sub Court, Nagercoil. The first appellate Court also
2/12
S.A(MD)No.498 of 2006
concurred with the findings of the trial Court. Aggrieved by the same, the appellant/plaintiff is before this Court.
3/12
S.A(MD)No.498 of 2006
respondents that the condition in the gift deed as if the second respondent should obtain permission from the appellant before alienating the suit property, was not valid in the eye of law. It was also averred by the respondent that the appellant herein led a wavered life and he stealthily removed oral documents and other items, when he walked out of the family and therefore, the first respondent cancelled the gift deed executed by her under Ex.A5 and executed another settlement giving absolute right to the second respondent under Ex.B2 dated 05.05.1998. On these pleadings, the respondents sought for dismissal of the suit laid by the appellant.
4/12
S.A(MD)No.498 of 2006
by the same, the appellant filed an appeal before first appellate Court in A.S.No. 58 of 2004 on the file of Principal Sub Court, Nagercoil. The First Appellate Court also concurred with the findings of the trial Court and dismissed the first appeal. Aggrieved by the same, the plaintiff is before this Court.
“ 1.Whether the restriction of alienation by the donor in a
gift deed does not come within the purview of Section 10 of the Transfer of Property Act?
2.Have not the Courts below erred in law, in non suiting the plaintiff when under Section 126 of the Transfer of Property Act,
the donor is permitted to impose condition under the gift deed?
3.Whether the Courts below have failed to note that once the settlor executes a settlement deed, she has no right to cancel the same?”
questions of law framed at the time of admission, submitted that there is no absolute curtailment of power of alienations to the donee. The first respondent at
5/12
S.A(MD)No.498 of 2006
the time of executing gift in favour of the second respondent having regard to the interest of the minor son, namely, the second respondent, imposed a condition that on attaining majority, he can alienate the property only with the permission of his elder brother, namely, the plaintiff. The learned counsel further submitted that the partial restraint on power of alienation imposed on the second respondent is only for his benefit and the same cannot be treated as total curtailment of power of alienation available to the donee. The learned counsel further by relying on Section 126 of Transfer of Property Act, submitted that the donor is entitled to impose a condition under the gift deed with regard to the manner of enjoyment of property by the donee.
6/12
S.A(MD)No.498 of 2006
executed by the first respondent under Ex.B2 submitted that the condition imposed in the earlier gift deed was revoked by the first respondent in the subsequent document marked as Ex.B2. Therefore, the learned counsel sought for dismissal by confirming the judgments and decrees passed by Courts below.
7/12
S.A(MD)No.498 of 2006
connection it would be appropriate to refer Section 10 of Transfer of Property Act, which reads as follows:-
“10.Condition restraining alienation:- where property is transferred subject to a condition or limitation absolutely restraining the transferee of 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.”
8/12
S.A(MD)No.498 of 2006
condition would amount to taking away the power of alienation available to the donee. In other words, the power of alienation available to the donee is made subject to the sweet will of the third party, namely, the appellant in the present case. Such a condition would amount to absolute restraint on the power of alienation, which is normally available to a donee under absolute gift. Hence, the subsequent clause in Ex.A5 restricting the power of alienation available to the donee is repugnant to the absolute gift made under the document. Therefore, the said condition is hit by Section 10 of Transfer of Property Act and therefore, it should be treated as a void condition.
9/12
S.A(MD)No.498 of 2006
substantial questions of law formulated at the time of admission are answered against the appellant.
(i) The Second Appeal is dismissed by confirming the judgment and decree dated 19.08.2005 passed in A.S.No.58 of 2004 on the file of the Principal Subordinate Court, Nagercoil, confirming the judgment and decree in O.S.No.296 of 1998 dated 04.09.2003 on the file of the 2nd Additional District Munsif Court, Nagercoil;
10/12
S.A(MD)No.498 of 2006
(ii) In the facts and circumstances of the case, there will be no order as
to costs; and
(iii) Connected miscellaneous petition is closed.
09.02.2023
NCC : Yes/ No Index : Yes / No Internet : Yes / No cp To 1.The Principal District Judge, Dindigul. 2. The District Munsif, Palani. 3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
11/12
S.A(MD)No.498 of 2006
S.SOUNTHAR, J.
CP
S.A(MD)No.498 of 2006
09.02.2023
12/12
3 issues framed by the court
Whether a donor can impose a condition restraining alienation of gifted property under Section 10 of the Transfer of Property Act?
Whether Section 126 of the Transfer of Property Act empowers a donor to impose conditions affecting an absolute gift?
Whether a subsequent settlement deed can revoke the conditions imposed in an earlier gift deed?
2 provisions across 1 enactments
A.Dhinakaran
T.Padmavathy
Chandrasekaran
A.Prabhakaran
Rengarajan
Charles Appathurai
S.Sounthar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
