F.M. DEVARU GANAPATI BHAT versus PRABHAKAR GANAPATHI BHAT

Citation: [2003] SUPP. 6 S.C.R. 1265 · Decided: 19-12-2003 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Dismissed

Judgment (excerpt)

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 of properties 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 of construction-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. 
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 
G 
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. 
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 
.. 
( 
4- t 
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

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