TMI Blog2003 (12) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... i, father of the parties. When gift deed was executed, the appellant was a minor aged 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 of Ganapathi. 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 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. According to the appellant, property survey No.306 under the gift deed was given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llage of Siddapur Taluk. WHEREAS, I am the owner of the below mentioned immovable properties and house. In order to protect the interest of the 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 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 jurisdiction/range of Siddapur Sub-Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Now, keeping in view the above principles, let us consider the 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, 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. We would now revert to the gift deed. It clearly shows the intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 of the document clearly shows that the intention of Mahadevi 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 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 personWhere, on a transfer 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 no present right to posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 13 of the Act. Creation of such a right is permissible under Section 20 of the Act. The respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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