Raghava Rao, J.@mdashThe question for decision in this second appeal is one of construction of a deed of gift, Ex. P. 2, executed on 20-3-1918
by deft. 1 applt. before me in favour of deft. 2, the Indian section of the Theosophical Society, Benares, represented by its General Secretary at
the time, for the use & benefit of the local lodge at Coondapur. On 6-10-1942 finding the suit property no longer required for the use & benefit of
the local lodge which apparently had by that time ceased to exist & basing itself on the clause of reverter contained in Ex. P. 2 deft. 2 by its
General Secretary at the time executed a deed of sale of the suit property in favour of deft, 1. The pltf. resp, 1 before me, used in the Ct. of the
Dist. Munsif of Coondapur for recovery of possession of the entire subject-matter of the gift deed but succeeded in obtaining a decree for only a
half which was later confirmed on appeal by the learned Subordinate Judge of South Kanara.
2. Deft. 1 appeals to this Ct. against the appellate decision, urging as he did in the Cts. below, firstly that the suit must be regarded as in effect one
for enforcing a right of pre-emption & as not brought in time, i.e., within one year from the date of the taking of possession by deft. 1 as prescribed
by Article 49, Limitation Act; & secondly, that the clause of reverter contained in Ex. P. 2 must be regarded as altogether invalid in law & that Ex.
D. 1 executed pursuant to such a clause could not operate to clothe the pltf. with any title whatsoever.
3. Before I deal with the contentions of Mr. Krishna Rao the learned advocate for the applt. it is as well that I set forth ''in extenso'' the document,
Ex. P. 2, on the terms of which the validity of the contentions necessarily depends :
This day 20-3-1918 the deed of gift executed to the registered Indian Section of the Theosophical Society having its headquarters at Benares, &
now represented by its present General Secretary, T. Ramachandra Rao, Retired Subordinate Judge, Benares, by Mr. Krishna Rao Kodge, son
of Govindarao Kodge, landlord, Brahmin, aged 25 living at Amavasubail Coondapur taluk witnesseth :
Whereas the under mentioned land forming a portion of the whole land Survey No. 67 sub-8 was inherited by me from my deceased grandfather
Krishna Rao, Yediala & of which I am in possession as the managing member of the family consisting of myself & my brother Sarvothama Rao
Kodge & whereas I am desirous or perpetuating the memory of my above said maternal grandfather & of imparting to him spiritual benefit thereby,
I do hereby execute this day this deed of gift & convey absolutely with all rights to the above-mentioned General Secretary, Benares for the use &
benefit of the local lodge of the Coondapur Theosophical Society the under mentioned land together with all trees etc., thereon besides the
incomplete building erected thereon by the Theosophical Society & have handed over the possession of site etc. to K. Narayanaswami Aiyar on
behalf of the above said General Secretary. In the event of the site & building aforesaid not being required for the above purpose, the property
shall revert to me on the condition of my paying to the said Indian section of the Theosophical Society the then estimated value of the building
alone. In proof whereof, I have this day affixed my signature to this deed of gift.
Now, to take up the first of the contentions of the applt., I am of opinion that the Cts. below are perfectly correct in their view of the matter. No
doubt the pltf. does employ the term ""pre-emption"" in his plaint; but it is not pretended that the pltf. is asserting a right of pre-emption in priority to
deft. 1 purchaser. What he is doing ''n fact & in truth is to claim that the purchase by deft. 1 enures to his benefit also under the reverter clause in
Ex. P. 2 to the extent of a moiety. The pltf. says that although deft. 2 alone executed Ex. P. 2 he did so as manager of the Joint family so that if the
clause of reverter could & did operate, it would operate to his benefit as well as that of deft. 1. With this view of the construction of Ex. P. 2 which
the Cts. below adopted I agree. I accordingly repel the first of the contentions of Mr. Krishna Rao.
4. But it is said--& this is the second contention of Mr. Krishna Rao--that the clause of reverter is itself inoperative (a) either because it is
repugnant to the absolute estate created by Ex. P. 2 in favour of deft. 2 or (b) because it is a clause of defeasance by way of an executory gift over
which, to be valid, must not violate the rule against perpetuity laid down in Section 14, T. P. Act. In the latter case it is further urged that it is
immaterial that in fact a reconveyance did come into being during the lifetime of the donor, so far as the first ground of the second contention is
concerned I am of opinion on a careful construction of the deed that the clause in question is not at all one of repugnancy to the absolute estate
created by the deed but is, if at all, only one of defeasance. The distinction between the two classes of clauses which is, however subtle, quite real
is well brought out in the following observations made by Sundaram Chetti J. in Govindaraja Pillai and Others Vs. Mangalam Pillai and Another,
with which I respectfully agree:
The distinction between a repugnant provision & a defeasance provision is sometimes subtle, but the general principle of law seems to be, that
where the intention of the donor is to maintain the absolute estate conferred on the donee but he simply adds some restrictions in derogation of the
incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant & therefore void; but where the grant of an
absolute estate is expressly or Impliedly made subject to defeasance on the happening of a contingency & where the effect of such defeasance
would not be a violation of any rule of law, the original estate is curtailed & the gift over must be taken to be valid &. operative.
As regards the second ground the argument ignores the words ""to me"" underlined by me in setting forth the gift deed above. The clause does not
run in terms of reverter to the ''donee'' & his ''heirs''. The decision of the Judicial Committee of the P. C. in AIR 1931 179 (Privy Council) does
not accordingly apply to the case on hand.
5. In fact, I am inclined to think that the clause in question is not a clause of reverter equivalent to defeasance by way of an executory gift over. It
is, in my judgment, a covenant between the donor & the donee that the latter should re-convey to the former in a certain contingency. That the rule
against perpetuity does not in this country apply to agreements is fairly well established by decisions of this Ct. of which I need only refer to Chinna
Munuswami Nayudu Vs. Sagalaguna Nayudu and Another, & to the F. B. decision of the Calcutta H. C. reported in Moulvi Ali Hossain Mian and
Others Vs. Rajkumar Haldar and Others, which revsd. the earlier decisions of that Ct. to the contrary.
6. The two contentions of the applt. therefore failing, the second appeal fails & is dismissed with costs. No leave.
