- (1.) 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 Court. The first appeal of the appellant has been dismissed by the High Court by the impugned judgment.
(2.) 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 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 remaining properties. According 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 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.
(3.) Two questions that fall for consideration in this appeal are : 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.;