Allowed

Thomas v. Dr.a.a.Henry

Kerala HC6 Feb 2008AS/363/1993

Case brief

AI extract

What is this about?

The High Court of Kerala held that a family agreement restricting alienation of a property only applied to the newly constructed building floors and excluded the original ground floor shops. Consequently, the sale of the ground floor shops by one brother was legal, and the appeal dismissing the plaintiffs' suit was allowed.

What did the court decide?

Set aside the judgment and decree; dismissed the suit; directed respondents to repay costs deposited by appellants.

Thomas Vs Dr.a.a.Henry — Contract and Commercial Disputes | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE KURIAN JOSEPH &

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THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID

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WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929

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AS.No. 363 of 1993(D)

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--------------------OS.45/1990 of II ADDL.SUB COURT,ERNAKULAM

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APPELLANTS/DEFENDANTS 2 AND 3:

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1.THOMAS, S/O. ANDREW NETTIKKADAN, BUILDING NO.39/587, KARIKKAMURI CROSS ROAD, ERNAKULAM, KOCHI - 16.

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2.VARGHESE NETTIKKADAN, -DO- -DO-

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BY ADVS. SRI.S.EASWARAN SRI.P.V.JAYACHANDRAN

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RESPONDENTS/PLAINTIFFS & DEFENDANTS 1, 4 & 5:

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1.DR. A.A. HENRY, S/O.LATE A.J. ANTONY ANJIPARAMBIL, MEDICAL PRACTITIONER, ANJIPARAMBIL HOUSE, ST. RITA'S ROAD, PONNURUNNI DESOM, PONNURUNNI, COCHIN-19.

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2.A.A. AUGUSTINE, S/O. LATE A.J. ANTONY ANJIPARAMBIL, ANJIPARAMBIL HOUSE, SREEKANDATH ROAD, ERNAKULAM, COCHIN-16.

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3.MRS. JOSPHINE ALFRED, W/O. LATE A.A. ALFRED ANJIPARAMBIL, ANTONY ESTATE, PANAMPILLY NAGAR, ERNAKULAM, KOCHI -16.

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4.A.A. VINCENT, S/O. LATE ANTONY ANJIPARAMBIL, ANJIPARAMBIL HOUSE, NEAR SOUTH OVERBRIDGE, MANORAMA JUNCTION, ERNAKULAM, COCHIN -16.

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5.A.A. PAUL, -DO- -DO-

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6.A.A.MANUAL, S/O. LATE ANTONY ANJIPARAMBIL, ANJIPARAMBIL HOUSE, JANATHA ROAD, NEAR GEO MOTORS WORKSHOP, VYTTILA, ERNAKULAM, COCHIN - 19.

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BY ADV. SRI.M.C.SEN (SR.)-R6 SRI.P.F.THOMAS -R1,R2,R3 SRI.SUNIL THOMAS

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SRI.PRAKASH THOMAS

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/02/2008 THE COURT ON 06/02/2008 DELIVERED THE FOLLOWING:

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ORDER IN C.M.P. NO. 1991 OF 1993 IN A.S. NO. 363 OF 1993.

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DISMISSED

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6.2.2008

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Sd/-(KURIAN JOSEPH, JUDGE)

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Sd/-(HARUN-UL-RASHID, JUDGE)

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KURIAN JOSEPH & HARUN-UL-RASHID, JJ.

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A..S. NO.363 OF 1993

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Dated this the 6^th day of February, 2008.

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JUDGMENT

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Harun-Ul-Rashid, J.

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This appeal is filed by defendants 2 and 3 in O.S. No.45 of 1990 on the file of the II Additional Sub Court, Ernakulam against the decree and judgment dated 19.10.1992. Respondents 1 to 3 herein as plaintiffs filed the suit for a decree for setting aside Exts.A17 and A18 sale deeds assigning the first defendant's ownership over the plaint schedule property and conveying his rights therein to defendants 2 and 3 and to order defendants 2 and 3 to assign the right, title, interest and possession obtained by them over the plaint schedule property by the above sale deeds to any one of the plaintiffs or to the plaintiffs jointly as required by them by executing a registered document and pay the plaintiffs the rent due and received from the shop rooms by defendants 2 and 3 with 12% future interest , failing which to allow the plaintiffs to deposit the consideration in court and get the document of assignment executed in their favour through court, for recovery of possession of the plaint schedule property

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and for other ancillary reliefs.

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By the judgment under appeal, the court below set aside Exts.A17 and A18 sale deeds and decreed the suit. By the decree, defendants 1 to 3 were directed to reconvey the plaint schedule properties to the plaintiffs or to any one of them as required by the plaintiffs by executing a registered document at the expense of the plaintiffs on receipt of consideration of Rs.1,20,000/-. It was also ordered that the plaintiffs will be entitled to the rent received by defendants 2 and 3 from the shop rooms with future interest at the rate of 6% per annum till realization, excluding the building taxes paid from 13.12.1989, from defendants 1 to 3 and from their assets. It was further directed that if defendants 1 to 3 fail to comply with the above directions within three months from the date of the decree, the plaintiffs will be allowed to get the document of assignment executed in their favour or in favour of any one of them and will be allowed to recover possession of the property through court. The plaintiffs were also allowed to realize the costs of the suit from defendants 1 to 5 and the 6^th defendant was entitled to realise costs from the plaintiffs.

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Parties to this appeal are referred to as plaintiffs and defendants as in the suit for the sake of convenience. The facts necessary for

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disposal of this appeal in brief as per the pleadings in this case are as follows:

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Plaintiffs 1 and 2 and the late husband of the third plaintiff and defendants 1, 4 and 5 are brothers. They are the owners of a complex of shop rooms commonly known as 'Anand Bazar'. At the time of purchase of the property with the buildings thereon in the year 1972 by the owners, it was constructed as a line of shop rooms on the east, west and north interconnected with common urinal and four godowns on the northern extremity on the east and west with a garden in between the shop rooms, in the middle. After purchase of the property, the owners constructed a three storied building in the open space provided as garden, extending over to the existing shop rooms on the three sides. There were passages for ingress and egress from the main road on either side of the shop rooms and the ground floor was kept as car parking area. Various facilities including urinals, stair cases, passage, veranda, water and electric connections were all common. According to the plaintiffs, six brothers who are the owners of the entire property wished and intended that the entire property as constructed and existed should be continued to be owned by them and their successors only, that the situation of the buildings, the lie of the property and the constructions made were intended for common use and that any portion or part thereof should not go

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to an outsider since such an eventuality will disturb the common purpose and the common utility of the premises. It was averred in the plaint that to fulfill the wishes and intention as mentioned above, the six brothers entered into a registered agreement on 24.2.1998 and that since the owners desired that the property and the buildings should be retained as common, the parties mutually agreed that individual owners shall not alienate, assign or mortgage or create liability over his share of the property to third parties. It was further agreed that in the contingency of an owner's financial difficulties requiring and necessitating sale of his share or portion of his building and property, he shall sell the same to any one of the other owners who is prepared to take the assignment and not to an outsider. Mediation was also provided to fix the value in case of a dispute about the value of the portion intended to be sold and that such value was to be accepted as final by all concerned. Alienation to an outsider or any one other than the six brothers was absolutely prohibited. The father of defendants 2 and 3 was one of the tenants of the shop rooms and the said shop room was let out to him by the first defendant who is the owner of two shop rooms on the ground floor of 'Anand Bazar'. There was a litigation between the said tenant and the landlord which is described in paragraph 4 of the plaint. According to the plaintiffs, the father of defendants 2 and 3 was illdisposed towards the plaintiffs and was waiting

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for an opportunity to retaliate. The said tenant, according to the plaintiffs, made use of the differences between the owners to bargain for a deal for the first defendant's share in the two shop rooms which were offered to him by sale. It was further alleged by the plaintiffs that they came to know about the secret negotiation for alienation of the first defendant's share and intimated the illegality of such a transaction to the 6^th defendant and requested him by letter dated 8.11.1989 to refuse registration of any document which was contrary to the agreement entered into between the parties. The request was acknowledged by the 6^th defendant on 10.11.1989. According to the plaintiffs by a communication dated 29.11.1989 which was posted after 13.12.1989 and received by them on 16.12.1989, their request was rejected and they were directed to initiate legal proceedings for the relief sought for. It was further averred by the plaintiffs that they later found that contrary to the terms and conditions of the registered agreement, two assignment deeds were registered in the office of the 6^th defendant on 13.1.2.1989 and that the consideration in each assignment deed was Rs.60,000/- totalling to a sum of Rs.1,20,000/-. The plaintiffs further alleged that the first defendant acted contrary to the terms of the agreement and that defendants 2 and 3 took assignment of the property knowing and conscious of the terms of the agreement between the owners and also about the illegality of the transaction. They further

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pleaded that they were prepared , individually or collectively, to take assignment of the rights of the plaint schedule property for the value mentioned in the documents. According to them, the documents are vitiated by the provisions of the agreement between the parties registered as document No.1396/1978 and hence the two sale deeds are liable to be set aside and that defendants 1 to 3 are bound and liable to reconvey the plaint schedule property to the plaintiffs as prayed for in the plaint.

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The first defendant filed a written statement, defendants 2 and 3 filed a joint written statement, the 4^th defendant filed only a statement adopting the contentions taken up by the other defendants. The 5^th defendant filed a statement to the effect that he is not interested in the subject matter of the suit and the 6^th defendant filed a separate written statement. The defendants contended inter alia that plaintiffs 1 and 2, the husband of the third plaintiff and defendants 1, 4 and 5purchased different portions of Anand Bazar in 1972 by separate sale deeds, that they were enjoying the said property separately by collecting rent independently. They further contended that in 1978 the respective owners of the property started construction of the first floor on their respective building and that the first plaintiff and the 5^th defendant constructed an independent three storied building in their vacant land with access to the first floor of the

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building. They also contended that the averment in the plaint that separate portions were constructed with common fund was false and that construction was started with individual funds and that towards the end of the completion, a loan was availed of by the parties. According to them, the primary purpose and intention of the agreement was for availing of a loan and that the other terms and conditions of the agreement were void, illegal and against public policy and were not binding on the parties to the agreement. They also contended that the parties had no express will or intention to make such an agreement and that the agreement was made under pressure and coercion and hence it was not binding on the parties. It was also contended that the agreement is in relation to newly constructed buildings and that the existing ground floor is excluded therefrom. According to the defendants, the allegation that the plaintiffs were entitled to get the plaint schedule property reconveyed to them cannot be sustained and that the assignments in favour of defendants 2 and 3 are perfectly legal, valid and enforceable. The defendants, therefore, prayed for dismissal of the suit.

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The first plaintiff was examined as PW.1 and Exts.A1 to A26

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were marked on their side. The defendants examined DWs.1 to 3 and marked Exts.B1 and B2. DWs.1 and 3 are defendants 1 and 4 in the suit.

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The court below framed six issues and after trial found that the 5^th defendant was a proper and necessary party to the suit and that there is no total restraint against alienation of the property scheduled in Ext.A1 agreement. The court below also found that clause No.5 of Ext.A1 cannot be said to be a restraint on alienation and not against public policy and hit by Section 23 of the Indian Contract Act, that Ext.A1 also contains a protection clause against alienation of the plaint schedule properties to an outsider other than the parties to Ext.A1, that Exts.A17 and A18 sale deeds are void and contrary to the terms contained in Ext.A1, that Exts.A17 and A18 are liable to be set aside and that the plaintiffs are entitled to get the plaint schedule properties reconveyed to them as prayed for. On the basis of the above said findings , the court below decreed the suit as prayed for.

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The questions which arose for adjudication in the suit were whether Exts.A17 and A18 assignment deeds are void or vitiated by the provisions of Ext.A1 agreement and liable to be set aside and whether the plaintiffs are entitled to get the plaint schedule properties reconveyed to them ?

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Plaintiffs 1 and 2 and defendants 1, 4 and 5 are brothers. The

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third plaintiff is the wife of late A.A. Alfred, another brother. In the year 1972, all the brothers by separate sale deeds purchased the shop buildings by name Anand Bazar. It is a line of shop rooms on the east, west and north interconnected with common urinal and four godowns on the northern extremity on the east and west with a garden in between the shop rooms, in the middle. Subsequently in the vacant space in the middle set apart as garden, a three storied building was constructed by the two owners and all the brothers started construction of first floor above the line of shop buildings. For the purpose of construction of the first floor, a loan was availed of in the names of the 1^st plaintiff and the 5^th defendant from the Syndicate Bank and the other brothers stood as surety for the loan transaction.

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Though the property stands in the name of the six brothers individually by separate deeds of purchase made in 1972, the line of shop rooms on the first floor are constructed as a single building in the year 1978. The bathroom, urinals, staircases, passages, electric connection etc. were common to all and common enjoyment alone is possible due to the lie and situation of these common facilities. According to the plaintiffs, at the time of construction of the first floor of the building, the above aspects and facts were discussed between the brothers and they had decided to

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determine and finalise their rights of ownership and obligation over the building by Ext.A1 agreement entered into among the parties. The terms of Ext.A1 inter alia provide that the owners desired that the property and the building should be retained as common, that individual owners should not alienate, assign, mortgage or create liability over their individual share, that in a contingency of an owner's financial difficulties requiring sale of individual share, he should not sell the same to an outsider, but only to any one of the other owners prepared to purchase the same. In case there was any dispute about the value of the portion intended to be sold, mediation was provided to fix the value. Alienation of any portion of the property to an outsider was absolutely prohibited.

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Resolution of the dispute between the parties mainly depend on the interpretation of the terms of Ext.A1 agreement. Before analysing the meaning of the terms in Ext.A1 agreement, it is relevant to note the background under which Ext.A1 was executed. In the year 1972, the six brothers together purchased the property and the existing building, namely Anand Bazar, which is the line of shop rooms on the east, west and north interconnected with common urinals and four godowns on the northern extremity on the east and west with a garden in between the shop rooms, in the middle. Subsequently, individual owners started construction of the

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first floor and a three storied building individually. The three storied building was also constructed in such a way that it extended over to the existing shop rooms on three sides. On the side of the shop rooms, passages were provided for ingress and egress. The ground floor of the three storied building was kept as car parking area. The first floor was completed with the common funds raised by the owners providing common facilities including urinals, stair cases, passages, verandah, water and electric connection. The situation of the buildings, the lie of the property and the constructions made were all intended for common use and the raising of funds through the bank and the discharge of the liability were all factors which lead them to think that the newly constructed building will be enjoyed as common by the family. The property with the line buildings was purchased in 1972. Till the starting of the construction of the ground floor and the separate three storied building in the space provided as garden in 1978, the parties never thought of executing an agreement like Ext.A1. They were independently enjoying the rights and obligations. Only when further constructions were made by providing more common facilities for the enjoyment of the users of the building they thought of execution of Ext.A1 agreement. Loan was availed of as a common liability which liability had to be discharged out of the common funds raised from the loan. Car parking facility was

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provided in the ground floor of the three storied building which was also intended for common use. It is averred, pleaded and testified that the purpose behind the execution of Ext.A1 agreement was for the aforesaid reasons.

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In Ext.A1 agreement dated 24.2.1978, the reasons for execution of the said agreement is narrated at pages 2 and 3. Even at the time of starting the construction of the new buildings and during the course of construction, the brothers had not thought of executing any such agreement. They started and carried out the construction work individually raising own funds. Only when they planned raising funds for the completion of the buildings, they thought of the idea of entering into the terms for raising common fund and its collective discharge. The recitals in pages 2 and 3 in Ext.A1 spell out such meaning and purpose. It is stated therein that all the brothers decided to execute the agreement in order to protect the rights of each and every one over their properties, its boundaries, for raising common funds by way of loan for the purpose of construction, and for discharging the said liability without fault and also to avoid any future dispute. In Ext.A1 agreement, the six brothers authorised their father A.J. Antony Anjiparambil to collect the rent and to discharge the liabilities due to the bank and for other purposes and after the death of

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the father, the plaintiffs were entrusted with the duty. Thus, the intention is clear. The common facilities put up and the common collection of rent till the discharge of loan amount made it impossible to enjoy the building portion individually. If a stranger is inducted as a co-owner, the brothers thought that such a contingency will disturb the common understanding and common collection and remittance of loan amount through their father. The working and management of the affairs will not be smooth and workable with the induction of outsiders. The loan amount was taken in the names of only two brothers. The common rent collection is confined only to the rent accrued from the newly constructed building portion. It is important to note that the collection of rent and individual enjoyment of the existing building (ground floor) is not disturbed. The enjoyment of that portion is not mentioned in the agreement. It was further provided in page 9 of Ext.A1 that if any of the sharers decided to alienate their property due to financial constraints, the sale shall be effected in favour of the other brothers and that they shall not sell the property to anybody other than the brothers. It was also agreed that any dispute regarding the price offered shall be referred to a mediator. It was further agreed that there was no prohibition in selling the entire property jointly by all the owners.

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We have already narrated the background of the case. It is in that background that Ext.A1 agreement was executed. The apprehension of the parties to the agreement was that if any portion of the building was sold to an outsider, the common object arising out of the common utility of the building and the discharge of the common liability will be disturbed. The court below has discussed the oral evidence tendered by DW.1in that regard which reads as follows:

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“DW.1 has admitted that at the time of purchase of the property, there were only common latrine and bathroom for the entire building. He has further admitted in cross examination that there is only a common meter room for the electric connections to all the rooms, that there is a a garden in front of the building, that half of the portion on the southern side belongs to the 1^st plaintiff and the other half belongs to the 5^th defendant, that the water supply to all the room is from a common meter and that what is stated in Ext.A1 is with respect to 41.187 cents of land with the buildings therein. It is also admitted by him that the ground floor belongs to the 1^st plaintiff and the 5^th defendant, that there is only a common stair-case for the 3 upstairs and that he is in agreement with the provisions contained in Ext.A1. DW.1 would further admit that the properties and the buildings are in joint possession and common enjoyment of the brothers.”

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The learned Sub Judge relied on the subsequent conduct of the parties and

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the oral evidence on the defence side to construe the meaning of Ext.A1 agreement. But oral evidence of parties has no place when the intention

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of parties is explicitly clear from the plain reading of Ext.A1.

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We have already stated in detail the background on which Ext.A1 agreement was executed and its meaning and context. From the date of the original purchase in 1972 till the year of execution of Ext.A1, the brothers never thought of executing any agreement confining the right of alienation among them. Even at the time of starting the construction of the new buildings and during the course of construction, the brothers didn't think of executing any such agreement. They started and carried out the construction work individually raising own funds. Only when they planned raising funds for the completion of the buildings, they thought of the idea of entering into the terms for raising common fund and its collective discharge. The recitals in pages 2 and 3 in Ext.A1 spell out such meanings. Thus, the intention is clear. The common facilities put up and the common collection of rent till the discharge of loan amount made it impossible to enjoy the building portion individually. If a stranger is inducted as a co-owner, the brothers thought that such a contingency will disturb the common understanding and common collection and remittance of loan amount through their father. The working and management of the affairs will not be smooth and workable with the induction of outsiders. The loan amount was taken in the names of only two brothers. The

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common rent collection is confined to the rent accrued from the newly constructed building portion. It is important to note that the collection of rent and individual enjoyment of the existing building (ground floor) is not disturbed. The enjoyment of that portion is not mentioned in the agreement It was during the construction of the first floor and the three storied building that the brothers thought of pooling and raising common fund from the bank and to discharge the same by utilising the income derived by way of rent from the said portions of the newly constructed building. The said constructions are made in such a way that common enjoyment alone is possible due to the various common facilities provided. So, the purpose of providing restriction in alienation in Ext.A1 agreement was for facilitating common enjoyment of the newly constructed portions of the building. This intention is clear from pages 2 and 3 of the agreement. The object of execution of Ext.A1 agreement is stated in pages 2 and 3 of the agreement. It is stated therein that the parties therein are constructing the first floor on the existing line of shop rooms and the godowns and also a three storied building and that loan has to be availed from the bank for completion of the building. Provision was also made for the discharge of the liability. All this was done to avoid any future dispute in respect of the right, title and enjoyment of the property in view of the fact that the newly constructed portions were lying as common

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and for the smooth enjoyment of the common facilities without any obstruction. So, the object behind execution of Ext.A1 agreement is discernible from the said recitals. The said recitals would show that the object is to make provision for the common enjoyment of the newly constructed portions of the building. In paragraph 4 at page 7 of Ext.A1 it is stated that the bank loan shall be availed of in the name of the first plaintiff and the 5^th defendant and the other brothers shall stand as guarantors. It is also stated that all the six brothers are jointly liable for the loan to be taken from the Syndicate Bank. It was also agreed in paragraph 4 that they should collect the rent from the newly constructed portions of the building and remit the same to the bank periodically. In paragraph 5 at page 8 of Ext.A1, it is again stated that the above said building shall remain common and shall not be alienated to strangers. The intention of the parties is clear from the schedule of property to Ext.A1. The schedule describes the property as the newly constructed first floor and the three storied building. It is clear from the schedule that it excludes the original building as it stood prior to the new constructions made in 1978.

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As we have already noted, interpretation of Ext.A1 agreement by a plain reading in the context in which it was executed will clinch the

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issue. The best interpretation of a contract is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. The sense and meaning of its context in any particular part of instrument may be collected and every part of it may be brought into action from the whole terms. The interpretation to be adopted should be one which gives effect if possible, to all the parts and do not reject any of them. The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into harmony with the other provision of the deed if that interpretation does no violence to the meaning to which they are naturally susceptible. In construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter to which it was designed and intended they should apply. The settled principles of interpretation as stated supra right from Privy Council decision reported in Purnananthachi v. Gopalaswami, A.I.R.

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1936 Privy Council 281 was followed by the Supreme Court and different High Courts in a catena of decisions and the recent are in Ganga Prasad Verma (Dr.) v. State of Bihar, 1995 Supp.(1) SCC 192, J.P.Bansal v. State of Rajasthan,(2003) 5 SCC 134, Nathi Devi v. Radha Devi Gupta (2005) 2 SCC 271 and Promoters & Builders Assn. of Pune v. Pune Municipal Corpn. (2007) 6 SCC 143.

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Every transfer is not vitiated simply because there may happen to be some clauses in the deeds which are repugnant to the free transfer and circulation of property. The deprivation of incidents of ownership in whatever form is void and unenforceable. Right of transfer is incidental to and inseparable from the beneficial ownership of a property. Under Section 10 of the Transfer of Property Act a condition absolutely restraining a transferee from disposing of the property is void. The section is silent as to the validity of qualified restraints on alienation. Partial restraint on alienation is not prohibited under the said provision. The question as to whether the clauses in a deed are absolute or partial has to be gathered from the contents of the deed. The Privy Council in Mohammed Raza v. MT. Abbas Bindi Bivi, A.I.R. 1932 P.C. 158 held that `partial restrictions are neither repugnant to law nor to justice, equity and good conscience. Lord Wenslevdale in Monypenny v Monypenny (1861 9 HLC 114 said: “the question is not what the parties to a deed may

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have intended to do by entering into that deed, but what is the meaning of the words used in that deed; a most important distinction in all cases of construction and the disregards of which often leads to erroneous conclusions.' Brett L.J. in Re Meredith, ex parte Chick (1879) 11 Ch D 731 observed: “I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ....... They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.”

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Therefore, we are of the considered view that Ext.A1 agreement does not take in the original building. The first defendant had assigned and alienated his two shop rooms on the ground floor in favour of defendants 2 and 3 by documents dated 13.12.1989 registered as document Nos.3772/89 and 3773/89 of S.R.O., Ernakulam. The said shop rooms mentioned in the assignment deed No.1854/72 stands in the name of the first defendant. Since the ground floor of the building is not included in Ext.A1 agreement, the plaintiffs are not entitled to seek any reliefs sought for in the suit. We have already found that the terms of the agreement entered into between the parties are only in respect of the first floor and the newly constructed three storied building. In the light of the view we have taken, the question whether there is total prohibition

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against alienation of the property scheduled to A1 and that clause 5 of Ext.A1 amounts to total restraint which is against public policy hit by Section 23 of the Indian Contract Act does not arise for consideration. It is made clear that we have interpreted Ext.A1 agreement only for the purpose of enquiry as to whether the terms in Ext.A1 applies to ground floor of the existing building or not.

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In the result, we allow the appeal and set aside the judgment and decree . The plaintiffs are not entitled to the reliefs. The suit is dismissed. The deposit already made by the plaintiffs pursuant to the direction in the impugned judgment can be withdrawn by the plaintiffs with the accrued interest. By the interm order dated 24.9.1993, this Court directed the appellants to deposit the cost portion of the decree. The amount deposited was withdrawn by the plaintiffs. The plaintiffs shall repay the amount to the appellants within a month from today. There will be no order as to costs.

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(KURIAN JOSEPH, JUDGE)

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(HARUN-UL-RASHID, JUDGE)

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