Holding

The gift deed, when read as a whole, creates a joint interest for all male children of the donor's brother, and the creation of a vested interest for an unborn child is permissible under Section 20 of the Transfer of Property Act, 1882.

Summary

Mahadevi, the donor, executed a gift deed in 1947 transferring ancestral property to her nephew (the appellant) and stipulating that any male children later born to his parents would become joint holders. At the time of execution the appellant was a minor and the respondent (the younger brother) was not yet born. The respondent later filed a suit for partition, claiming a one‑half share. The trial court decreed in his favour and the High Court dismissed the appellant's appeal. The Supreme Court examined the construction of the deed and the statutory validity of creating an interest for an unborn person. Reading the deed as a whole, the Court held that the donor intended joint ownership with all male children of her brother, not an absolute right for the appellant, and that such a future interest is permissible under Section 20 of the Transfer of Property Act, 1882 and not barred by Section 13. Consequently, the respondent was entitled to a share and the appeal was dismissed.

Issues considered

How should the gift deed be construed – does it confer absolute ownership on the appellant or create a joint interest with any future male children of his parents?
Is the creation of an interest in favour of an unborn person valid under the Transfer of Property Act, 1882, particularly in view of Sections 13 and 20?

Legislation cited

Transfer of Property Act, 1882s. 13, s. 20

Subjects

gift deedconstruction of deedunborn beneficiaryjoint ownershippartition suitTransfer of Property ActSection 13Section 20ancestral property

Judgment

F.M. DEVARU GANAPATI BHAT A
v.
PRABHAKAR GANAPATHI BHAT

DECEMBER 19, 2003

[Y.K. SABHARWAL AND DR. AR. LAKSHMANAN, JJ.] B
Deed and Documents :

Gift deed-Execution of-Sister gifting the property bought from her
brother to her nephew-Stipulation that if other male child born to her
brother, shall be joint holder-Construction of-Held : Document read as C
whole shows that the intention of the donor was to make all male children
of her brother joint holders ofproperties and not create an absolute right
in favour of her nephew-Further, the son born after the execution of gift
deed has interest in the property-Creation of such right is permissible
under Section 20-Transfer of Property Act, 1992, Section 20. D
Interpretation of statutes :

Rules ofconstruction-Intention of the executant-To be ascertained
after considering all words in their ordinary natural sense and reading the
document as whole. . E
Sister of G purchased all the properties from G on account of his
helpless conditions. The sister was issueless and she gifted the property
under the gift deed to her nephew-appellant with the stipul:>tion that
if other rrale children are born to her brother they shall be joint
holders with the appellant. The gift properties were ancestral. When F
the gift deed was executed appellant was a minor and few years later
his brother-respondent was born. Respondent filed suit for partition
and possession claiming one-half share in the properties. Trial Court
decreed the suit. Appellant filed an appeal. High Court dismissed the
appeal. Hence the present appeal.
G
Appellant contended that on true construction of the gift deed on
demise of the donor, the appellant became the absolute owner of
property and the respondent has no right over it; and that since the
donor did not create the interest of the entire property for the benefit
of unborn male child, the interest sought to be created under ·the gift H
1265
1266 SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.

A deed is invalid.
Dismissing the appeal, the Court

HELD : 1.1. The words 'this property will be your and nobody
else shall have right and title over it' in the gift deed ca·nnot be read
B in isolation. These words are immediately followed by the words that
'in case any male children are born to your parents, you· shall enjoy
the described immovable property and house with those male children
as joint holder'. No exception is made in respect of property. When the
donor stated that 'nobody else shall have right or title over it', she was
C only reiterating what was stated earlier that she had decided to gift the
immovable property and house to the appellant since at that time, the
appellant was the only male child of the brother of the donor. There
are no such qualifying words in the gift deed to show an intention of
the donor to exclude the unborn male children from the title of
property which she had retain.ed for maintenance during her liveli-
D hood. The language and tenor of the document read as a whole clearly
shows the intention of the donor that all the property gifted shall
remain in the family of her brother, being their an<;estral properties. f
and shall be enjoyed by the appellant and other male children as may
be born, as joint holders without exception of any property; and that
E the donor did not intend to create an absolute right in favour of the
appellant. (1270-B-E]

1.2. There is no ban on the transfer of interest in favour of an
unborn person. Section 20 of_ the Transfer of Prop~rty Act, 1892
permits an interest being created for the benefit of an unborn person
F who acquires interest upon his birth. No provision has been brought
to notice which stipulates that full interest in a property cannot be
created in favour of unborn person. In the instant case, the donor gifted
the property in favour of the ,appellant, then livi~g, and also stipulated
that if other male children are later born to her brother they shall be
G joint liolders with the appellant. Such a stipulation is not hit by Section
13 of the Act. Creation of such a right is permissible under Section 20
of the Act. The respondent, thus became entitled to the property on
his birth. (1270-D-F]

Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer, AIR (1953)
H SC 7, distinguished.
F.M.DEVARUGANAPATIBHATv. P.G. BHAT [SABHARWAL,J.] 1267
2. The rule of construction is well settled that the intention of the A
executor of a document is to be ascertained after considering all the
words in their ordinary natural sense. The document is required to be
read as a whole to ascertain the intention of the executant. It is also
necessary to take into account the circumstances under which any
particular words may have been used. (1269-F-GJ
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4385 of

..(
2001 .

From the Judgment and Order dated 16.2.99 of the Karnataka High
Court in R.F.A. No. 391 of 1991.
c
R.S. Hedge, Chandra Prakash, Ms. Savitri Pandey and P.P. Singh for
the appellant.

S.N. Bhat and Diwakar Chaturvedi for the Respondent.

The Judgment of the Court was delivered by D

Y.K. SABHARWAL, J. : Parties are brothers. The appellant/
defendant is the elder brother. The respondent/plaintiff is the younger
brother. The suit for partition and possession filed by the respondent
claiming one~half share in suit properties has been decreed by the trial E
court. The first appeal of the appellant has been dismissed by the High
Court by the impugned judgment.

The basis of claim in the suit was the gift deed dated 9th September,
1947 executed by Smt. Mahadevi, younger sister of Ganapathi, father of
the parties. When gift deed was executed, the appellant was a minor aged F
13 years: At that time, respondent was not born. In the year 1936, the
suit properties were sold by Ganapathi to his younger sister Mahadevi. The
sale was effected due to some helpless conditions ofGanapathi. Mahadevi
was issueless. She enjoyed properties from the year 1936 upto execution
of the gift deed. The same properties were gifted under the gift deed in G
question. The dispute in this appeal is, however, restricted to one gifted
property, namely, survey No. 306. The appellant is not disputing the claim
of the respondent in respect of partition of remaining properties. Accord-
4- t
ing to the appellant, property survey No. 306 under the gift deed was given
to him absolutely and the respondent, on true construction of the gift deed,
has no right to claim partition of the said property. Alternatively, it is H
1268 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A contended that creation of interest in favour of the respondent who was
not born when the gift deed was executed is invalid in view of Section 13
of the Transfer of Property Act, 1882 (for short, 'the Act'). Both these
contentions have not found favour with the trial court and the High Court.

Two questions that fall for consideration in this appeal are :
B
1. Construction of gift deed dated September 9, 1947; and

2. Validity of creation of interest in the property in question
in favour of respondent in view of Section 13 of the Act.
-
c In the gift deed, the donor retained property survey No. 306 for her
livelihood till demise. The contention is that on true construction of the
gift deed on demise ofMahadevi, the appellant became the absolute owner
of property survey No. 306. The respondent has no right over it. The
answer would depend upon t~e construction of the gift deed. The original
D gift deed is in Kannada language. When translated in English, it reads as
under:

"THIS DEED OF GIFT OF IMMOVABLE PROP~RTIES AND
HOUSE in village is executed on this the 9th day of September,
1947 by Smt. Mahadevi, w/o Subraya Bhat, aged about 25 years,
E Occupation, House wife, belonging to Havyaka Community,
Rio Keramane, Yalugar Village of Siddapur Taluk, in favour of
Devaru Ganapathi Bhat, aged about 13 years, Rio Ker,1mane,
Yalugar Village of Siddapur Taluk.

F WHEREAS, I am the owner of the below mentioned immov-
able properties and house. In order to protect the interest of the 'f
below mentioned properties and house, I am thinking to gift all
the properties by way of a gift to a suitable person. As you are
my brother's son and also you have gained love and affection of
mine, and also as the land and house were previously your
G ancestral property, hence I have decided to gift the immovable
property and house therein to you. As described herein my malki
right in the below mentioned schedule immovable property, house
and the Betta land/Bena land and Kumki land, etc., situated in
Yelugar village of Keremane in Siddapur Taluk within the
H jurisdiction/range of Siddapur Sub-Registrar have been gifted and
F.M. DEVARUGANAPATIBHATv. P.G. BHAT[SABHARWAL,J.] 1269
given to you today. Henceforth neither myself nor anybody is A
having right, title and interest in any manner over the schedule
immovable property and house etc. and you have to enjoy this
property as full owner. Therefore, in future you have to pay and
bear the Revenue, Tax, Local Funds and repair the Government
boundary stones, etc. You have to enjoy and succeed to the B
property as your own. Since you are a minor, the schedule
property immovable property and house are to be cultivated/
managed by your father Ganapathi Devaru Bhat as the guardian
of minor child and the same is to be reserved for you till you attain
the age of majority. Among the property, I have retained the
property of Sy.No.306, area 1-6-0, Assessment 16-0-0, for my C
livelihood till my demise and after my death, this property will
be your and nobody else shall have right or title over it. In case
any male children are born to your parents, you shall enjoy the
described immovable property and house with those male children
as a joint holder. Therefore, this Deed of Gift of immovable D
properties, house etc., has been executed.

Description/Scheduled of immovable property situated at
Yalugar Village of Siddapur Taluk."

The execution of the gift deed is not in question. The validity of E
the gift deed is also not in question except to the extent indicated
herein before.

The rule of construction is well settled that the intention of the
executor of a document is to be ascertained after considering all the words F
in their ordinary natural sense. The document is required to be read as a
whole to ascertain the intention of the executant. It is also necessary to
take into account the circumstances under which any particular words may
have been used.

Now, keeping in view the above principles, let us consider the G.
admitted facts of the present case. The donor purchased all properties from
her brother on account of his helpless conditions. When the gift was made,
t the parents of the parties were alive. The properties were ancestral. The
donor was issueless. The appellant was minor. The respondent was not
born. Date of birth of the respondent is 9th November, 1949. H
1270 SUPREME COURT REPORTS.'{2003] SUPP. 6 S.C.R.
A We would now revert to the gift deed. It clearly shows the intention
of the donor that if after execution of the gift deed any male children are
born, the properties should be enjoyed by the appellant with the~ as joint
holaer. With reference to property survey No. 306, the words "this property
will be your and nobody else shall have right and title over it" cannot be
B read in isolation. Thf>se words are immediately followed by the words that
"in case any male children are born to your parents, you shall enjoy the
described immovable property and house with those male children as joint
holder". No exception is made in respect of property survey No. 306.
When the donor stated that 'nobody else shall have right or title over it',
C she was only reiterating what was stated earlier that she had decided to gift
the immovable property and house to the appellant since at that time, the
appellant was the only male child of the brother of the donor. There are
no such qualifying words in the gift deed to show an intention of the donor
to exclude the unborn male children from ·the title of property survey
No.306 which she had retained for maintenance during her livelihood. The
D document read as a whole clearly shows the intention of the donor that all
the properties gifted shall remain in the family ~f her brother, being their
ancestral properties and shall be enjoyed by the appellant and other male
children as may be born, as joint holders. The words in the gift deed upon
which reliance has been placed by the appellant cannot be seen in isolation.
E The document read as a whole does not show that the donor intended to
create an absolute right in favour of the appellant. The language and tenor
ofthe·document clearly shows that the intention ofMahadevi was to make
all male children of her brother joint holders of the properties without
exception of any property. The gift deed has been properly construed by
F the courts below.
~·

The answer to the second question hinges upon the interpretation of
Sections 13 and 20 of the Act, which read as under :

"13. Transfer for· benefit of unborn person-Where, on a transfer
G of property, an interest therein is created for the benefit of a person
not in existence at the date of the transfer, subject to a prior
interest created by the same transfer, the interest created for the
benefit of such person shall not take effect, unless it extends to
the whole of: the remaining interest of the transferor in· the
....
H propeny.
F.M. DEVARUGANAPATIBHATv. P.G. BHAT[SABHARWAL,J.] 1271

20. When unborn person acquire'!Vested interest on transfer for A
his benefit.- Where, on a transfer of property, an interest therein
is created for the benefit of a person not then living, he acquires
upon his birth, unless a contrary intention appears from the terms
of the transfer, a vested interest, although he may not be entitled
to the enjoyment thereof immediately on his birth." ·B

The contention of learned counsel for the appellant is ~hat since the
donor did not'ltreate the interest of the entire property survey No. 306 for
the benefit of unborn male child, namely, the respondent, the interest
sought to be created under the gift deed is invalid. In support, learned
counsel places reliance on the observations made in para 14 of the decision C
in Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer, AIR (1953)
SC 7 which reads as under :

"Of course this by itself gives no comfort to the defendant; she
has to establish, in order that she may be able to resist the D
plaintiffs claim, that the will created an independent interest in
her favour following the death of Dhuj Singh. As we have said
already, the testator did intend to create successive life estates in
favour of the successive heirs ofDhuj Singh. This, it is contended
by the appellant is not permissible in law and he relied on the case E
of Tagore v. Tagore, 18 W.R.359. It is quite true that no interest
could be created in favour of an unborn person but when the gift
is made to a class or series of persons, some of whom are in
existence and some are not, it does not fail in its entirety, it is valid
with regard to the persons, who are in existence at the time of the
testator's death and is invalid as to the rest. The widow, who is F
the next heir of Dhuj Singh, was in existence when the testator
died and the life interest created in her favour should certainly take
effect. She thus acquired under the will an interest in the suit
properties after the death of her husband, commensurate with the
period of her own natural life and the plaintiff consequently has G
no present right to possession."

The brief facts of the relied decision are that a will was executed
by one Raja Bisheshwar Bux Singh. The will, inter alia, stated that after
the death of the .testator his younger son and his heirs and successors, H
1272 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A generation after generation, may not feel any trouble and that there may
not be any quarrel between them, therefore, it as being executed with
respect to certain villages so that after .the death of the testator, his younger
·son may enjoy the said properties. The younger son and his heirs, without
power of transfer, shall exercise other rights in respect of the said
B properties. When the will was. executed, the defendant, being the wife of
the younger son of Raja Bisheshwar Bux Singh was already there. On the
construction of the will, it was held that the younger son had only a life
interest in the properties under the terms of his father's will. Had it been
an absolute interest, the property would have reverted to the elder son of
the testator. Construing the will, it was held that the testator did intend
C to create successive life interest in favour of the successive heirs of his
younger son that was held to be not permissible in law. Under these
circumstances, the Court observed that no interest could be created in
favour of an unborn person. The decision relied upon has no applicability
in the facts and circumstances of the instant case. The present is not a case
D where any successive interest has been created under the gift deed.
There iµoaan on the transfer of interest in favour of an unborn
person.,--Section
_,.-- 20 permits an interest being created for the benefit of an
unborn person who acquires interest upon his birth. No provision has been
brought to our notice which stipulates that full interest in a property cannot
E be created in favour of unborn person. Section 13 has no applicability to
the facts and circumstances of the present case. In the present case, the
donor gifted the property in favour of the appellant, then living, and also
stipulated that if other male children are later born to her brother they shall
be joint holders with the appellant. Such a stipulation is not hit by Section
F 13 of the Act. Creation of such a right is permissible under Section 20
of the Act. The respondent, thus, became entitled to the property on his
birth. In this view, there is also no substance in the second contention.

For the aforesaid reasons, the appeal is dismissed. The parties are
left to bear their own costs.
G
N.J. Appeal dismissed.