Dismissed

Radhakrishnan v. P.K.Gopalakrishna Panicker

Kerala HC23 Feb 2017RSA/396/2010

Case brief

AI extract

What is this about?

Competing injunction claims concerned property allotted under successive family deeds. The court held that the appellants had waived their asserted rights by knowingly accepting benefits under the later transactions. It found the respondents' possession established and the property identifiable without a survey, and dismissed both second appeals despite finding substantial questions of law.

What the court decided

AI extract

Radhakrishnan Vs P.K.Gopalakrishna Panicker — Property and Title | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

¶4

THURSDAY, THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938

¶5

RSA.No. 396 of 2010 ( )

¶6

AGAINST JUDGMENT DATED 30-10-2009 IN AS 26/2005 of SUB COURT, THIRUVALLA AGAINST JUDGMENT DATED 12-01-2005 IN OS 538/2001 of MUNSIFF COURT, THIRUVALLA

¶7

APPELLANT(S)/APPELLANTS/PLAINTIFFS:

¶8

1. RADHAKRISHNAN

¶9

S/O.LATE SREEDHARA PANICKER, SARITHA BHAVAN, NEDUMKUNNAM MURI, KARUKACHAL VILLAGE, FROM MAMUNDA KRISHNA VILASATHIL, NEDUMKUNNAM MURI, KARUKACHAL VILLAGE, KOTTAYAM.

¶10

2. S.RAJEEV, S/O.LATE SREEDHARA PANICKER, GOPI NIVASATHIL, THIRUNAKKARA,KOTTAYAM FROM MAMUNDA KRISHNA VILASATHIL, NEDUMKUNNAM MURI, KARUKACHAL VILLAGE, KOTTAYAM.

¶11

BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.M.J.THOMAS

¶12

RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

¶13

1. P.K.GOPALAKRISHNA PANICKER S/O.KOCHUPARAMESWARAN PILLAI,PUTHEN PARAMBIL VEEDU, PULLADU MURI, KOIPURAM VILLAGE, PATHANAMTHITTA.

¶14

2. P.RAJENDRAN, S/O P.K.GOPALAKRISHNA PANICKER PUTHEN PARAMBIL VEEDU, PULLADU MURI, KOIPURAM VILLAGE, PATHANAMTHITTA.

¶15

R1 & 2 BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) R1-2 BY ADV. SRI.P.GOPAL R1 & 2 BY ADV. SRI.RAJAN NAMBRATH

¶16

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2017, ALONG WITH RSA. 399/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[CR]

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B. KEMAL PASHA, J.

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................................................................ R.S.A. Nos. 396 & 399 of 2010

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............................................................... Dated this the 23^rd day of February, 2017

¶21

J U D G M E N T

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(1) Whether the subsequent recitals contained in Ext.A1 are repugnant to the right created in favour of Sreedhara Panicker and 1^st respondent as per Ext.A1?

¶23

(2) Whether the subsequent recitals incorporated after the creation of the right in respect of the aforesaid persons in Ext.A1 amount to clauses violating absolute transfer or absolute transfer of interest within the meaning of Sections 10 and 11 of the Transfer of Property Act, 1882?

¶24

R.S.A. Nos. 396 & 399 of 2010

¶25

-: 2 :-

¶26

(3) Whether Ext.B1 followed by the Will of 1994, Exts.B4, B5 and B2 result in intentional relinquishment of the known rights of the appellants allegedly created in favour of them through Ext.A1?

¶27

(4) Whether simple suits for injunction will lie in the case of O.S.No.538/2001 as well as O.S.No.545/2002?

¶28

(5) Whether a serious adjudication of title of the appellants or others are involved in these suits? (6) Whether second appeals are maintainable in these matters under Section 100 of the Code of Civil Procedure, 1908?

¶29

These are the main questions that arise for consideration in these Second Appeals.

¶30

R.S.A. No.396 of 2010 has arisen from A.S.No.26/2005 of the Subordinate Judge's Court, Thiruvalla, which was filed against the judgment and decree in O.S.No.538/2001 of the Munsiff's Court, Thiruvalla.

¶31

R.S.A. Nos. 396 & 399 of 2010

¶32

-: 3 :-

¶33

R.S.A.No.399 of 2010 has arisen from A.S.No.25/2005 of the Subordinate Judge's Court, Thiruvalla, which was filed against the judgment and decree in O.S.No.545/2002 of the Munsiff's Court, Thiruvalla.

¶34

Appellants in R.S.A.No.396/2010 are the plaintiffs in O.S.No.538/2001. While dealing with these Second Appeals they are being referred to as 'appellants'. The first respondent in the appeal is P.K. Gopalakrishna Panicker, and the 2^nd respondent is his son P. Rajendran. They are being referred to as 'respondents' or 'R1', 'R2' respectively. The appellants in R.S.A.No.399/2010 are also the very same appellants in R.S.A.No.396/2010. The aforesaid respondents are the plaintiffs in O.S.No.545/2002. The appellants herein are the 4^th defendant and 5^th defendant respectively in O.S.No.545/2002. Defendants 2 and 3 in O.S.No.545/2002 are the sons of one P.T. Samuel, who is the first defendant in the said suit. In these second appeals, defendants 1 to 3 in O.S.No.545/2002 are being referred to

¶35

R.S.A. Nos. 396 & 399 of 2010

¶36

-: 4 :-

¶37

as 'defendants 1, 2, and 3' respectively.

¶38

Both the suits are for perpetual injunction. The plaint schedule property in O.S.No.538/2001 is 22.395 cents of property after deducting 2.105 cents from the western half having an extent of 24½ cents out of the total extent of 49 cents of property in Sy.No.225/2001 of the Koyippara Village and the western half of the building situated in the said 49 cents, excluding that portion of the building which comes within the aforesaid 2.105 cents. Kochu Parameswara Pillai and his wife Kuttiamma have two sons namely Sreedhara Panicker and Gopalakrishna Panicker(R1). The appellants are the sons of Sreedhara Panicker. Sreedhara Panicker have four daughters namely Indira Devi, Shobana Devi, Lalithamma(DW3) and Santha Devi.

¶39

Kochu Parameswara Pillai as the first party, Kuttiamma as the second party, Sreedhara Panicker as the third party and R1 as the 4^th party, executed Ext.A1 partition deed as document No.2705 dated 01.08.1963 of the

¶40

R.S.A. Nos. 396 & 399 of 2010

¶41

-: 5 :-

¶42

Aranmula Sub Registry. The devolution of properties covered by it has been shown as property devolved on the first party through document No.2050/1098 of the Aranmula Sub Registry, through partition of family properties of parties 2 to 4 vide document Nos.1483/1101, 2276/1114 and 294/1114 of the Aranmula Sub Registry, sale deed Nos.2439/1101, 1485/1101 & 911/1115, Ext.B3 release deed No.4069/1962, and also the decree in O.S.No.503/1100. The only contribution from the part of the first party in Ext.A1 document is the property covered by document No.2050/1098. All the other properties noted above were treated as properties to which parties 2 to 4 were jointly entitled. Through Ext.A1 partition deed, the property contained in the first schedule was allotted to the second party, 2^nd schedule was allotted to the 3^rd party and the 3^rd schedule was allotted to the 4^th party.

¶43

The property in Sy.No.225/2001 is incorporated

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as the 3^rd item in the 2^nd schedule and the 3^rd item in the 3^rd

¶45

R.S.A. Nos. 396 & 399 of 2010

¶46

-: 6 :-

¶47

schedule of Ext.A1. The 3^rd item in the 2^nd schedule allotted to the 3^rd party is the western half of 49 cents and that portion of the two storied building comes within the said 24½ cents in Sy.No.225/2001. Similarly, the third item in the third schedule to Ext.A1 allotted to the share of the 4^th party is the eastern half having the same extent of 24½ cents and the eastern half of the building situated in Sy.No.225/1. Kuttiamma died in the year 1968 and Kochu Parameswara Pillai died in the year 1974.

¶48

In the first portion of Ext.A1, it has been specifically recited that the said shares are fixed separately as their shares. It has been further mentioned therein that the parties concerned could mutate the properties separately, subject to the conditions enumerated therein. The two storied building and the property in Sy.No.225/1 in which it is situated, has been included in the 2^nd and 3^rd schedule in Ext.A1. It was specifically prescribed that the same should be in the possession and enjoyment of the first

¶49

R.S.A. Nos. 396 & 399 of 2010

¶50

-: 7 :-

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party for life. The remaining portions of the 2^nd and 3^rd schedule properties were prescribed to be in the possession and enjoyment of the second party for her life.

¶52

It was recited that after the lifetime of the first party and the 2^nd party, the 2^nd schedule shall pass on to the 3^rd party and the 3^rd schedule shall pass on to the 4^th party and they shall possess and enjoy the properties and take yield from there and obtain rent from the building for their life. It was also specifically recited that parties 3 and 4 shall have no right to create any encumbrance or alienation over the building and the property in Sy.No.225/1 allotted to them through the 2^nd and 3^rd schedule in Ext.A1, and in case of any such encumbrance or alienation, the male children of such 3^rd and 4^th parties concerned shall have the right to get it set aside. It was also stipulated that after the lifetime of parties 3 and 4, their respective shares in the property in Sy.No.225/1 allotted to them through the 2^nd and 3^rd schedule in Ext.A1, shall pass on to the male children of

¶53

R.S.A. Nos. 396 & 399 of 2010

¶54

-: 8 :-

¶55

parties 3 and 4.

¶56

After the death of their parents, it seems that Sreedhara Panicker and R1 had chosen to execute Ext.B1 partition deed No.2376/83 dated 24.11.1983 of the Karukachal Sub Registry by which they have partitioned the properties devolved on them through document No.95/1952 of the Changanassery Sub Registry as well as Ext.A1. It seems that, at the time of execution of Ext.B1, the said parties, who were the 3^rd party and the 4^th party to Ext.A1, had virtually abandoned all the other conditions and restrictions imposed in Ext.A1 on the right to create encumbrances and alienation in the property in Sy.No.225/1. Through Ext.B1, they treated the properties as properties over which they got absolute right and title. Three items of properties each were allotted to Sreedhara Panicker as well as R1 as per Ext.B1 as A schedule and B schedule properties respectively.

¶57

R.S.A. Nos. 396 & 399 of 2010

¶58

-: 9 :-

¶59

A schedule item No.1 is the northern half of 96

¶60

cents of property in Sy.No.98/4 of the Karukachal Village, having an extent of 48 cents. The remaining 48 cents in the said property is allotted to the share of R1 as B schedule item No.2. A schedule item No.3 is paddy field which is the eastern half of one acre and 14 cents having an extent of 57 cents in Sy.No.95/1 of Karukachal Village. The remaining portion of the said property having an extent of 57 cents was allotted to R1 as B schedule item No.3. A schedule item No.2 is 58 cents of property in Sy.No.129/2(hereinafter referred to as the Santhipuram Junction property) of Karukachal village which was exclusively allotted to Sreedhara Panicker. B schedule item No.1 is 17 cents of property in Sy.No.225/1 of the Koipram Village, which is the western half of the 34 cents lying at the southern side of the stretch of land having a width of six feet, extending east west at the southern side of the two storied building. The aforesaid 34 cents was arrived at after deducting the land in

¶61

R.S.A. Nos. 396 & 399 of 2010

¶62

-: 10 :-

¶63

which the building is situated as well as the strip of land having a width of six feet extending east west specifically retained for the maintenance and protection of the building, having a total extent of 15 cents. It seems that the first respondent had willingly exchanged A schedule item No.2 property having an extent of 58 cents known as Santhipuram junction property, after obtaining the aforesaid 17 cents of property, which is referred to as Pullad property.

¶64

The plaint claim in O.S.No.538/2001 is that the appellants became the absolute title holders in possession of 24½ cents of property and the building portion, which is the western half of 49 cents in Sy.No.225/1 in Pullad property, out of which they sold 2.105 cents and the building portion from the western most portion to defendants 2 and 3 through Ext.B2 sale deed dated 14.06.2001.

¶65

It is the case of the appellants that subsequent to the sale through Ext.B2, respondents 1 and 2 had approached the appellants and requested for the

¶66

R.S.A. Nos. 396 & 399 of 2010

¶67

-: 11 :-

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conveyance of the remaining portion of the appellants in Pullad property for a throwaway price, to which the appellants were not willing. It is alleged that when they sold the properties covered by Ext.B2, respondents 1 and 2 had attempted to obstruct the possession and enjoyment of the appellants over the said property, and attempted to commit trespass into the scheduled property. It was by making the said allegations and averments, O.S.No.538/2001 was filed by seeking a decree of perpetual injunction restraining the respondents from committing trespass into the plaint schedule property, from committing any sort of waste thereon, and from causing any obstruction to the possession and enjoyment of the appellants over the said property.

¶69

Separate written statements were filed by R1 and R2, by resorting to almost the very same contentions. It is contended that the appellants are not parties to Ext.A1 and they did not get any right over the properties covered by Ext.A1. The Pullad property had devolved exclusively on the

¶70

R.S.A. Nos. 396 & 399 of 2010

¶71

-: 12 :-

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first respondent through Ext.B3 release deed. The said property was originally purchased by the first respondent with his own funds through sale deed No.4164/1117, in the name of the father. There was a subsisting mortgage in respect of the said property and the same was also redeemed by the first respondent. Thereafter, by acknowledging the purchase of the property by the first respondent with his own funds, his father Kochu Parameswara Pillai had executed Ext.B3 release deed thereby releasing his nominal right over the property by accepting an amount of ₹25 towards the taxes allegedly paid by Kochu Parameswara Pillai in respect of the Pullad property for and on behalf of the first respondent.

¶73

It is contended that thereafter, the first respondent gave the half right over the property to Sreedhara Panicker through Ext.A1. When Ext.B1 was subsequently executed in 1983 between Sreedhara Panicker and R1, all the terms and conditions in Ext.A1 in relation to the Pullad property

¶74

R.S.A. Nos. 396 & 399 of 2010

¶75

-: 13 :-

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have been rendered void. The first respondent was residing at Pullad and was holding properties there. Sreedhara Panicker was residing at Karukachal and was holding properties there. Therefore, by giving Karukachal properties to Sreedhara Panicker, the first respondent took back the 17 cents of Pullad property. Some portions of the Santhipuram junction property were sold by Sreedhara Panicker. In the year 1994, Sreedhara Panicker and his wife Ponnamma executed a joint and mutual Will in which Ext.B1 was acknowledged. The appellants have approved Ext.B1 and have acted upon it. They were also instrumental in the execution of Exts.B4 and B5 of 1995 by Sreedhara Panicker. Sreedhara Panicker died on 24.05.2000. In Ext.B2 sale deed also, the appellants had followed the descriptions of the Pullad property as contained in Ext.B1. According to the respondents, the appellants are, therefore, estopped from challenging the validity of Ext.B1 and from forwarding any further claims over the Pullad property on the basis of

¶77

R.S.A. Nos. 396 & 399 of 2010

¶78

-: 14 :-

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Ext.A1.

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O.S.No.545/2002 was filed by respondents as

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plaintiffs, in which 28 cents of property out of Pullad property, excluding six cents of property, sold by the 2^nd respondent to a stranger from the eastern most portion of the 34 cents is scheduled as the plaint schedule. For arriving at the 34 cents, they have excluded 15 cents of property, which covers the space occupied by the building as well as the strip of land having a width of six feet situated at the southern side of the building, from the total extent of 49 cents. According to the respondents, the appellants had attempted to create false and fabricated documents in respect of the portions of the said properties, and were attempting to commit trespass and commit waste thereon, and also attempting to make constructions in the property by committing trespass into it. Consequently, the said suit for perpetual injunction was filed.

¶82

R.S.A. Nos. 396 & 399 of 2010

¶83

-: 15 :-

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The appellants and defendants 1 to 3 have contested the suit through a joint written statement. According to them, late Sreedhara Panicker was only a care taker as trustee in respect of the Pullad properties. It was contended that Ext.B1 is not binding on the appellants, and that apart from mere life interest, late Sreedhara Panicker had no title or interest over that portion of the Pullad property, which was allotted to the share of Sreedhara Panicker as per Ext.A1. It was also contended that Ext.B1 is ab initio void and that Sreedhara Panicker had no title to convey. The appellants have admitted the execution of Ext.B2 sale deed No.754/01 in favour of defendants 2 and 3, who are the sons of the first defendant. In the schedule appended to Ext.B2 also, the provision relating to six feet width strip of land at the southern side of the building in the Pullad property has been acknowledged.

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Both the suits were jointly tried by treating O.S.538/2001 as the main case. The learned Munsiff, after

¶86

R.S.A. Nos. 396 & 399 of 2010

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-: 16 :-

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trial, dismissed O.S.No.538/01 and decreed

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O.S.No.545/2002 almost in terms of the plaint. Aggrieved by the said judgment and decree, appeals were preferred before the lower appellate court by these appellants. Both the appeals were dismissed, and hence these Second Appeals.

¶90

This Court has admitted these Second Appeals on the following substantial questions of law:

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“(1) Whether the stipulations in Ext.A1 family settlement executed by all the members of the family restricting alienation as stipulated in the document is a repugnant clause hit by Section 10 of the Transfer of Property Act?

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(2) Whether Ext.B1 has any legal effect and whether the same will bind the parties who are not parties to Ext.B1 and whose rights are being conveyed by Ext.B1?”

¶93

R.S.A. Nos. 396 & 399 of 2010

¶94

-: 17 :-

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Heard learned Senior Counsel Sri.S.V.Balakrishna Iyer for the appellants, and learned Senior Counsel Sri.P.G.Parameswara Panicker for the respondents.

¶96

Learned Senior Counsel for the appellants has forwarded the following arguments:-

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(a) The condition stipulated in Ext.A1 clearly creates a purchase in favour of the appellants in respect of the third item in the 2^nd schedule of Ext.A1.

¶98

(b) What has been granted in favour of Sreedhara Panicker and the 1^st respondent from the Pullad property through Ext.A1 was a limited interest, which clearly denotes a life interest, and nothing more.

¶99

¶100

(d) Either Sreedhara Panicker or the 1^st respondent

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had no right or authority to execute Ext.B1 in respect of the Pullad property and, therefore, Ext.B1 is not binding on the appellants.

¶102

R.S.A. Nos. 396 & 399 of 2010

¶103

-: 18 :-

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(e) A simple suit for injunction will not lie either in the case of O.S. No.538/2001 or in the case of O.S. No.545/2002.

¶105

(f) The respondents ought to have paid court fee under Section 27(a) of the Kerala Court Fees and Suits Valuation Act, 1959, and ought to have got the question of title adjudicated.

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(g) A cloud has been cast upon the alleged title over the properties claimed by the respondents and, therefore, appropriate reliefs including a relief of declaration of title ought to have been sought for and adjudicated.

¶107

(h) The plaint schedule property in O.S. No.545/2002 is not identifiable, and at any stretch of imagination, a court of law cannot grant a decree of perpetual injunction in respect of a property, which is not identifiable.

¶108

Per contra , learned Senior Counsel for the respondents has argued the following points:-

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(a) Ext.A1 creates an absolute vesting of the Pullad

¶110

R.S.A. Nos. 396 & 399 of 2010

¶111

-: 19 :-

¶112

property in favour of Sreedhara Panicker and the 1^st respondent.

¶113

(b) The further clauses incorporated in Ext.A1 are

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repugnant to such absolute interest, within the meaning of Sections 10 and 11 of the Transfer of Property Act.

¶115

¶116

Ext.B1 were fully competent and entitled to execute Ext.B1 in respect of Pullad property.

¶117

(d) The appellants cannot approbate and reprobate

¶118

after accepting the benefits derived from Ext.B1 and also on account of the execution of Exts.B4, B5 and B2.

¶119

(e) There is intentional relinquishment of the known rights of the appellants, which are clear from Exts.B4, B5 and B2 and, therefore, they have waived their rights, if any, created on them through Ext.A1.

¶120

(f) The plaint schedule property in O.S. No.545/2002 is clearly identifiable.

¶121

R.S.A. Nos. 396 & 399 of 2010

¶122

-: 20 :-

¶123

(g) There are admissions even from PW1 and PW2,

¶124

which will prove that the properties are identifiable.

¶125

(h) The question of title has least importance in O.S.

¶126

No.545/2002, and the limited questions of interpretation of Ext.A1 or the right to create Ext.B1 are only incidental, and for appreciating the question of possession which follows title.

¶127

(i) If a suit for injunction is not maintainable in O.S. No.545/2002, Section 38 of the Specific Relief Act becomes a dead letter.

¶128

(j) The question of possession has been decided concurrently by both the courts below and, therefore, these Second Appeals do not evolve any questions of law and especially, there is no substantial question of law within the meaning of Section 100 of the Code of Civil Procedure, 1908.

¶129

Learned Senior Counsel for the appellants has relied on the decisions in -

¶130

R.S.A. Nos. 396 & 399 of 2010

¶131

-: 21 :-

¶132

(1) Chinnammal and others v. Sri

¶133

Kannikaparameshwari Deity by trustees Venkatarama Chettiar and another [AIR 1964 Madras 80].

¶134

(2) Ramachandra Shenoy and another v. Mrs. Hilda Brite and others [AIR 1964 SC 1323].

¶135

(3) Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer [AIR 1953 SC 7].

¶136

(4) Mathew Thomman v. Paily Ulahannan [1957

¶137

KLT 1119] .

¶138

(5) Madhavrao Ganpatrao Desai and others v.

¶139

Balabhai Raghunath Agaskar and others [AIR 1928 PC 33] .

¶140

(6) Golak Behari Mondal and others v. Suradhani

¶141

Dassi and others [AIR 1939 Calcutta 226]

¶142

(7) Srijukta Saraju Bala Debi and others v. Srimati Jyotirmmoyee Debi and others [AIR 1931 PC 179]

¶143

(8) Sadaram Suryanarayana and another v. Kalla

¶144

Surya Kantham and another [2011 SAR (Civil) 1]

¶145

R.S.A. Nos. 396 & 399 of 2010

¶146

-: 22 :-

¶147

(9) Ramaswami Pattamali v. Lakshmi [1962 KLT

¶148

243 (FB)].

¶149

(10) Ramkishorelal and another v. Kamalnarayan

¶150

[AIR 1963 SC 890]

¶151

(11) D evasironmani and another v. T.Rajathangam and another [1998 (1) MLJ 322]

¶152

(12) Abdulla Ahmed v. Animendra Kissen Mitter

¶153

[AIR 1950 SC 15]

¶154

(13) Ganesh Bhandary v. Ambunhi [1989 (2) KLT

¶155

882]

¶156

(14) Pandurang Krishnaji [AIR 1922 PC 20 ]

¶157

(15) Rajammal alias Sundarammal and others [AIR

¶158

1945 PC 82]

¶159

(16) Torabaz Khan and another v. Nanak Chand

¶160

and another [AIR 1932 Lahore 566]

¶161

(17) Anathula Sudhakar v. P.Buchi Reddy (Dead)

¶162

By Lrs. and others [2008 SAR (Civil) 878 = AIR 2008 SC

¶163

2033]

¶164

R.S.A. Nos. 396 & 399 of 2010

¶165

-: 23 :-

¶166

(18) Muddasani Venkata Narsaiah (D) through Lrs.

¶167

v. Muddasani Sarojana [2016 SAR (Civil) 829]

¶168

(19) Annaimuthu Thevan (Dead) by Lrs. v.

¶169

Alagammal and others [(2005) 6 SCC 202]

¶170

(20) Judgment in S.A. No.620/1991

¶171

(21) Secretary of State v. G.Krishna Rao [AIR 1945 PC 165]

¶172

(22) Sir Chunilal V. Mehta and sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. [AIR 1962 SC 1314]

¶173

(23) Kashmir Singh v. Harnam Singh and another

¶174

[AIR 2008 SC 1749]

¶175

(24) Haryana State and another v. Gram Panchayat Village Kalehri [2016 SAR (Civil) 801]

¶176

(25) M/s.Motilal Padampat Sugar Mills Co. Ltd. v.

¶177

The State of Uttar Pradesh and others [AIR 1979 SC 621]

¶178

23 . Learned Senior Counsel for the appellants has

¶179

also invited the attention of this Court to the Odgers' Construction of Deeds and Statutes, Transfer of Property

¶180

R.S.A. Nos. 396 & 399 of 2010

¶181

-: 24 :-

¶182

Act by Sanjiva Row, Transfer of Property Act by Manohar

¶183

and Chitaley, Transfer of Property Act by Mulla and Indian Succession Act by Paruck also.

¶184

Learned Senior Counsel for the respondents has relied on the following decisions:-

¶185

(1) State of Kerala v. M.A. Babu and another [2003 (2) KLJ 299]

¶186

(2) M.N.Aryamurthi and another v. M.L.Subbaraya

¶187

Setty (Dead) by his Lrs. and others [AIR 1972 SC 1279]

¶188

(3) K.H.Krishna Iyer and others v. Parvathy

¶189

Ammal and others [1988 (2) KLJ 156]

¶190

(4) Ramaswami Pattamali v. Lakshmi [1962 KLT

¶191

243 (FB)].

¶192

(5) Raman Sameeranan v. Raman Varunan and

¶193

others [AIR 1960 Kerala 226] .

¶194

(6) Fatima Sarohini Suresh and others v. K.

¶195

Saraswathi Amma and others [AIR 1986 Kerala 56] .

¶196

R.S.A. Nos. 396 & 399 of 2010

¶197

-: 25 :-

¶198

(7) Siddamurthy Jayarami Reddy v. Godi Jaya

¶199

Rami Reddy [2011 (2) KLT SN 38 (Case No.51) (SC)]

¶200

(8) Indu Kakkar v. Haryana State Industrial

¶201

Development Corporation Ltd. and another [(1999) 2 SCC 37] .

¶202

(9) Nageshar Sahai v. Mata Prasad and another

¶203

[AIR 1922 Oudh 236]

¶204

(10) Bhavani Amma Kanakadevi and others v. C.S.I. Dakshina Kerala Maha Idavaka [ILR 2007 (4) Kerala 556]

¶205

(11) Rajan A. and another v. T.K.Kumari Kamalam

¶206

[ILR 2010 (2) Kerala 810]

¶207

(12) Indu Kakkar v. Haryana State Industrial

¶208

Development Corporation Ltd . [1999 (2) SCC 37]

¶209

(13) Hill Properties Limited v. Union Bank of India and others [(2014) 1 SCC 635]

¶210

R.S.A. Nos. 396 & 399 of 2010

¶211

-: 26 :-

¶212

(14) Muthayyan Swaminatha Sastrial and others v.

¶213

S.Narayanaswami Sastrial and others [AIR 1936 Madras 936]

¶214

(15) Fakirbhai Bhagwandas and another v. Maganlal Haribhai and another [AIR 1951 Bombay 380]

¶215

(16) P. Buchi Reddi and others v. Anathula

¶216

Sudhakar [ AIR 1999 AP 188].

¶217

(17) Ramji Rai and another v. Jagdish Mallah (Dead) through L.Rs. and another [AIR 2007 SC 900]

¶218

(18) State of Assam v. Bhaskar Jyoti Sarma and others [(2015) 5 SCC 321]

¶219

(19) Inderpreet Singh Kahlon and others v. State of

¶220

Punjab and others [(2006) 11 SCC 356]

¶221

In Chinnammal and others v. Sri

¶222

Kannikaparameshwari Deity by trustees Venkatarama Chettiar and another [AIR 1964 Madras 80], it is held that:-

¶223

“One A conveyed certain property under a settlement deed the terms of which ran as

¶224

R.S.A. Nos. 396 & 399 of 2010

¶225

-: 27 :-

¶226

follows:

¶227

“Venkataswami Naidu (my son) and his male heirs are to take and attain one half (moiety) of the property. Chinnaswami Naidu (my other son) and his male heirs are to similarly take and attain one half (moiety) of the property”.

¶228

It was held therein that the phraseology totally excluded the interpretation that there was a simultaneous bequest to either of the sons and the sons of either son taken together. The words 'male heirs' were not words of limitation, and that Venkataswami Naidu took a moiety in absolute right, as Chinnaswami Naidu similarly did.

¶229

In Chinnammal (Supra), the decision in Dadabhoy Framji Cama v. Cowasji Dorabji Panday [AIR 1925 PC 306] of the Judicial Committee was relied on, wherein it was held that the use of the words 'male heirs' in a settlement deed did not import any limitation. That would be so, even in a view most favourable to any alternative interpretation, unless there was some indication of a

¶230

R.S.A. Nos. 396 & 399 of 2010

¶231

-: 28 :-

¶232

contrary intention.

¶233

In Ramachandra Shenoy and another v. Mrs.

¶234

Hilda Brite and others [AIR 1964 SC 1323], the terms of a Will containing the following clause had to be construed:-

¶235

“All kinds of movable properties inclusive of the amounts that shall be got from others and the cash; - all these my eldest daughter Severina Sobina Coelho shall after my death enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute right.”

¶236

It was held therein that if the daughter Severina had been granted an absolute interest in the property by the words “enjoy” and “permanently and with absolute rights” the subsequent disposition must necessarily fail. It was also held therein as follows:-

¶237

“But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour of Severina is established. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every

¶238

R.S.A. Nos. 396 & 399 of 2010

¶239

-: 29 :-

¶240

disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely “on” or “after” or “at” A's death. A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B. In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention.”

¶241

R.S.A. Nos. 396 & 399 of 2010

¶242

-: 30 :-

¶243

28. In Ramachandra Shenoy (Supra), it was further

¶244

held:-

¶245

“These words do indicate that the persons designated by the words that followed were to take an interest after her, i.e., in succession and not jointly with her. And unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her male children. This was the interpretation which the learned Single Judge of the High Court adopted and we consider the same is correct.”

¶246

In the decision in Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer [AIR 1953 SC 7] , a will executed by Raja Bisheshwar Singh by which five properties, described in lists A and B attached to the plaint, were

¶247

R.S.A. Nos. 396 & 399 of 2010

¶248

-: 31 :-

¶249

bequeathed to Dhuj Singh, the younger son, by way of making provisions for the maintenance of the said son and his heirs, was considered. It was held that-

¶250

“As I have become sufficiently old and no reliance can be placed on life, by God's grace I have got two sons namely, Bajrang Bahadur Singh, the elder, and Dhuj Singh, the younger. After my death the elder son would according to rule, become the Raja, the younger one is simply entitled to maintenance.”

¶251

It was also stated in the Will that-

¶252

“Consequently, with a view that after my death the younger son and his heirs and successors, generation after generation, may not feel any trouble and that there may not be any quarrel between them”.

¶253

In Raj Bajrang (Supra), it was held as follows-

¶254

“In case where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground of repugnancy; but where the

¶255

R.S.A. Nos. 396 & 399 of 2010

¶256

-: 32 :-

¶257

restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word “malik”. We hold, therefore, that the Courts below were right in holding that Dhuj Singh had only a life interest in the properties under the terms of his father's will.”

¶258

In Mathew Thomman v. Paily Ulahannan [1957

¶259

KLT 1119] , a gift deed executed in favour of one Acha, which provided that the property has to be taken for the support of the donee and her ' santhanams ', was considered. A provision was made in the gift deed that the donee has to attorn to the jenmi directly and pay michavaram and other dues and she has to enjoy the property for her lifetime without in any way encumbering the same so that the properties will devolve upon the ' santhanams '. It was held therein that there is no doubt that the intention of the donor was to see that the properties were conserved for the

¶260

R.S.A. Nos. 396 & 399 of 2010

¶261

-: 33 :-

¶262

benefit of the mother and children as a group and that the children should get the property intact, after the death of the mother. The view of the learned Munsiff that the intention of

¶263

the donor was to settle the property on the children, who were minors at that time, and the mother was only to have a life estate in the property, was approved.

¶264

Learned Senior Counsel for the appellants had relied on the following passage in page No.227 of Sanjiva Row's Transfer of Property Act, Sixth Edition:-

¶265

“The word 'condition' in this section means a condition superadded on a transfer of property, whereby an interest which is created by the transfer in the property, is to cease to exist, in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen. In other words, the expression 'condition' means condition subsequent, which divests an estate which has already vested. It is to be distinguished from the word 'limitation'.

¶266

The word 'limitation' refers to words limiting or defining the nature of the estate created. In In

¶267

R.S.A. Nos. 396 & 399 of 2010

¶268

-: 34 :-

¶269

re Machu, Chitty, J., defined 'limitation' as “the definition or circumscription in any conveyance of the interest which the grantee is intended to take”. Thus, in the case of a transfer to 'a person and his heirs and assigns,' the 'heirs and assigns' are not transferees. The words in an instrument of transfer 'his heirs and assigns' or 'from generation to generation' denote the transfer of 'an absolute estate' but not 'an estate of inheritance'. The heirs of the transferee take the estate by inheritance from the transferee instead of from transferor under the transfer, as they do, when the estate is transferred by the transferor to a person for his life and then to his heirs, and in which case, the heirs take under the transfer and not by inheritance. In the former case, the transferee may dispose of the estate and his heirs may get nothing; but, in the latter case, the original transferee can dispose of only his life-interest, and the remainder passes to his heirs after his death.”

¶270

It seems that whether a transfer conveys an absolute estate or only life interest is a matter of construction of instrument of transfer, if the conveyance is to

¶271

R.S.A. Nos. 396 & 399 of 2010

¶272

-: 35 :-

¶273

a named transferee 'and his heirs'. The words 'and his heirs' are words of limitation and limitation being void, the named transferee takes an absolute estate. At the same time, if the conveyance is to the named transferee for life and after his death to his heirs, the heirs are direct objects of an independent and distinct transfer.

¶274

By referring the decision in Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer [AIR 1953 SC 7] and the decision in Mathew Thomman v. Paily Ulahannan [1957 KLT 1119] , it has been stated in pages 444 and 445 of the Transfer of Property Act by Manohar and Chitaley, 7^th Edition, that ' the question whether property is transferred subject to a condition restraining alienation or whether the clause restraining alienation is intended as transferring only a limited interest, has to be decided on the terms of the deed as a whole '. It has been further stated that as per the decision in Mathew Thomman (supra) , ' it was not a case where an absolute estate has first been created and later

¶275

R.S.A. Nos. 396 & 399 of 2010

¶276

-: 36 :-

¶277

clauses were merely repugnant to the absolute estate '.

¶278

The word 'limitation' is a term of English law. The term 'purchase' is also derived from English law. At page 117 of Mulla, The Transfer of Property Act, 12^th Edition, it has been stated:-

¶279

“In Indian law, the question whether the words are words of limitation or words of purchase is a matter of construction. Thus, if the bequest is to 'A and his heirs' the words 'and his heirs' are words of limitation indicating that A has an absolute estate, but if the bequest is to 'A for life and after his death to his heirs' the heirs are direct objects of an independent and distinct gift. In an Indian will, the words putra poutradi krama are words of limitation denoting an estate of inheritance. In Madhavrao v. Balahhai, the property was settled in trust for 'my daughter K during her life...and after her death in trust for the male heirs of the said K.' It was contended that this was an attempt to create an estate tail which was bad under the Hindu law, but the Privy Council held that it was an independent gift to the person, who answered the description of heirs at

¶280

R.S.A. Nos. 396 & 399 of 2010

¶281

-: 37 :-

¶282

the death of K, ie, her sons living at her death. Words of limitation which denote an estate of inheritance do not of course imply a restriction on alienation.”

¶283

The distinction between 'words of limitation' and 'words of purchase' has been dealt with in page 383 of Paruck on the Indian Succession Act, 11^th Edition, as follows:-

¶284

“If a bequest is made to 'A and his heirs' the legatee intended is A and not the heirs - the word 'heirs' merely points out the extent of interest given to A. A takes the property under the instrument, and the heirs by descent. The word 'heirs' is termed termed a 'word of limitation'. Similarly, a bequest to A and his children will confer on A an absolute bequest, if A survives the testator whether he has children or not. If on the other hand by the word 'heirs' or 'children' the testator indicates a particular person or persons who are intended to take as personae designatae it becomes a 'word of purchase' and means the person or person who would succeed to the estate of the person named if he died intestate.”

¶285

R.S.A. Nos. 396 & 399 of 2010

¶286

-: 38 :-

¶287

In Madhavarao Ganpatrao Desai and others v.

¶288

Balabhai Raghunath Agaskar and others [AIR 1928 PC 33], the reservations contained in a gift deed came up for consideration. In the said gift deed, one quarter rents, dividends and profits was ordered to be given to the daughter of the donor Krishnabai during her life “for her sole and separate use and after her death in trust of her male heirs.” In that case, it was held as follows:

¶289

“They do not think that the male heirs, of Krishnabai took by inheritance from her. They are of opinion, that the estate that Krishnabai took was defined and limited by her life interest, and that it was not by descent from her but by virtue of a wholly independent gift that her male heirs were beneficiaries under the deed. These male heirs being in fact living at the date of the deed, no difficulty arises.”

¶290

In Golak Behari Mondal and others v.

¶291

Suradhani Dassi and others (AIR 1939 Culcutta 226), the

¶292

R.S.A. Nos. 396 & 399 of 2010

¶293

-: 39 :-

¶294

difference between defeasance clause and repugnant clause was considered in detail. By relying on the decision in Goindaraja Pillai v. Mangalam Pillai (AIR 1933 Madras 80), it was held in Golak Behari (supra) :

¶295

“The distinction between a defeasance clause and a repugnant one is sometimes a nice one. Where the intention of the donor or testator is to maintain the absolute estate conferred on the donee but he adds some restrictions in derogation of the incidents of such absolute ownership, the clause is a repugnant one and is therefore void. If however the intention expressed or to be necessarily implied is to extinguish the absolute estate on the happening of a contingency and where the effect of the termination of the said estate would not be the violation of any rule of law, the clause is a defeasance clause and would operate according to its tenor.”

¶296

R.S.A. Nos. 396 & 399 of 2010

¶297

-: 40 :-

¶298

It was further held in Golak Behari (supra) :

¶299

“The exclusion by a subsequent clause of some of the heirs or only a class of heirs of the donee or legatee who has been given an absolute estate, an estate of inheritance, would not make the clause a defeasance clause but only a repugnant one, for a heritable estate must descend according to the law of the land or the personal law of the donee or legatee, as the case may be, and any provision made for excluding some of the heirs-at-law of the donee or legatee or a particular class of them would be regarded as an attempt by the donor or testator to legislate which cannot be permitted.”

¶300

Based on the decision in Golak Behari ( supra ),

¶301

the learned Senior Counsel for the respondents has argued that the subsequent clauses contained in Ext.A1 can only be treated as repugnant clauses, which seriously interferes and restricts the absolute vesting in favour of Sreedhara

¶302

R.S.A. Nos. 396 & 399 of 2010

¶303

-: 41 :-

¶304

Panicker and R1 through Ext.A1. It has been argued that the subsequent clauses do not create a subsequent vesting in favour of all the legal heirs of Sreedhara Panicker and R1 after their life. When it is a heritable estate, if as a matter of fact, the independent subsequent vesting was on all the legal heirs of the said parties, that clause would not have been a repugnant one and in such case, it may be such that such legal heirs would be the direct objects of the vesting. It has been argued that in this particular case, the subsequent clauses in Ext.A1 has excluded the law of inheritance applicable to Sreedhara Panicker and R1, whereby the parties to the document had, in fact, attempted to legislate by deviating from the law of the land as well as the personal law of the parties.

¶305

In Srijukta Saraju Bala Debi v. Srimati

¶306

Jyotirmoyee Devi and others (AIR 1931 PC 179), three leases were considered. The first lease conferred upon Kripamoyee an absolute estate as effectively as if she was

¶307

R.S.A. Nos. 396 & 399 of 2010

¶308

-: 42 :-

¶309

constituted “malik” of the properties. The second and the third leases constituted her “malik” in express terms, and the word “malik” imports full proprietary rights, unless there is something in the context to indicate an intention to the contrary. The first condition in the lease was that the Taluks should not in any case pass on to the heirs of the daughters of Kripamoyee. It was held that the said condition can hardly be read as implying as estate to be determined on the death of the grantee. It was held that:

¶310

“It is an attempt to alter the legal course of succession to an absolute estate and is therefore, void.”

¶311

In Srijukta Saraju Bala Debi (supra), their Lordships relied on Tagore v. Tagore , and held:

¶312

“The next condition is that neither Kripamoyee nor her said heirs should transfer the taluks, or any part thereof by way of gift except a gift for a religious purpose which also should not exceed five pakhis. This again their Lordships

¶313

R.S.A. Nos. 396 & 399 of 2010

¶314

-: 43 :-

¶315

think, is more consistent with an attempt to restrict the powers of an absolute owner than an intention to enlarge the powers of a life tenant. As such a restriction it is repugnant to the absolute estate and is void on that ground.”

¶316

In Sadaram Suryanarayana and another v.

¶317

Kalla Surya Kantham and another [2011 SAR (Civil) 1], it was held that where an absolute estate is created by Will in favour of the devisee, the clauses in the Will, which are repugnant to such absolute estate, cannot cut down the estate; but they must be held to be invalid. It has been further held that, where there is a conflict between two clauses appearing in a Will and when it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa.

¶318

Learned Senior Counsel for the respondents has argued that the terms incorporated in Ext.A1, which create

¶319

R.S.A. Nos. 396 & 399 of 2010

¶320

-: 44 :-

¶321

hurdles on the right of Sreedhara Panicker and R1 to encumber or alienate the Pullad property, could only be considered as a mere pious wish of the first party to Ext.A1 and nothing more. Reliance has been placed on Raman Sameeranan v. Raman Varunan and others [AIR 1960 Kerala 226] , wherein it was held-

¶322

“The father having conveyed the properties absolutely in favour of the plaintiff and the first defendant, further down says that both of them are entitled to enjoy the property themselves taking Pattas and paying revenue and other taxes due on the properties. No doubt, the father expresses an intention that he will continue to be in possession and management of the properties during the lifetime of the first defendant who was then a minor and this is further followed by a later expression that the first defendant should not convey any properties during the minority of the plaintiff. This, in my opinion, is nothing more than a pious wish expressed by a well-intentioned father that the properties given by him to his two sons must be preserved for the benefit of both.

¶323

R.S.A. Nos. 396 & 399 of 2010

¶324

-: 45 :-

¶325

This, in my view, cannot certainly put any restriction in the disposing power of the first defendant in respect of the properties given to him, and which have been clearly expressed in the earlier portions of the document. Even if this is considered to be a restriction in my opinion that restriction cannot operate in the face of unequivocal disposition in full of all his rights in favour of the two sons. As stated earlier, this is nothing more than a pious wish by a wellintentioned father.”

¶326

Reliance was also placed on the decision in

¶327

Fatima Sarohini Suresh and others v. K. Saraswathi

¶328

Amma and others [AIR 1986 Kerala 56] . In that decision, a Division Bench of this Court had to consider the restrictions imposed on one Suresh in respect of the properties alloted to him. Properties were alloted to the two daughters, namely, Hasheela and Jamila, and also one son namely, Mahesh. With regard to the other son named Suresh, two items of properties were set apart. The first item was to be retained by his mother with a right to take its income, till the

¶329

R.S.A. Nos. 396 & 399 of 2010

¶330

-: 46 :-

¶331

marriage of the youngest daughter Jamila; and after her marriage, Suresh was to step into his mother's shoes with a right to enjoy it during his lifetime. The second item was also to be retained by the mother during her life, Suresh getting it only after her death with a right to get income during his lifetime. It was also mentioned that he could not encumber or alienate items 1 and 2 at any time, and after his death, they were to devolve successively on his descendants.

¶332

By relying on the decision in Ragunath v. Deputy Commissioner [AIR 1929 PC 283] , the Division Bench in Fatima Sarohini Suresh (Supra) held that as far as the properties alloted to Suresh are concerned, they have to be understood as allotting a share to Suresh and then creating conditions repugnant to the estate so created. In Ragunath (supra) , the Privy Council held that such conditions must be regarded as an attempt to impose repugnant conditions upon the estate so created and are, therefore, void.

¶333

R.S.A. Nos. 396 & 399 of 2010

¶334

-: 47 :-

¶335

In Indu Kakkar v. Haryana State Industrial Development Corporation Ltd. and another [(1999) 2 SCC 37] , it was held in paragraph 16 that-

¶336

“However, the allottee has contended before the trial court that clause 7 of the agreement is unenforceable in view of Section 11 of the TP Act. But that contention was repelled, according to us, rightly because the deed of conveyance had not created any absolute interest in favour of the allottee in respect of the plot conveyed. For a transferee to deal with interest in the property transferred “as if there were no such direction” regarding the particular manner of enjoyment of the property, the instrument of transfer should evidence that an absolute interest in favour of the transferee has been created. This is clearly discernible from Section 11 of the TP Act. The section rests on a principle that any condition which is repugnant to the interest created is void and when property is transferred absolutely, it must be done with all its legal incidents.”

¶337

In Hill Properties Limited v. Union Bank of

¶338

India and others [(2014) 1 SCC 635] , it was held that when

¶339

R.S.A. Nos. 396 & 399 of 2010

¶340

-: 48 :-

¶341

there is a transfer of a species of interest, a legal bar on the saleability or transferability of such a species of interest, will create chaos and confusion. It was held that the right or interest to occupy and enjoy such a species of property, if curtailed against its saleability or transferability, such clauses are not valid.

¶342

Regarding nature of Ext.A1, even though its nomenclature is that of a partition deed, the learned Senior Counsel for the respondents has pointed out that, in fact, such a document could only be termed as a composite deed, which has the characteristics of more than one transaction. When properties in respect of which, parties 2 to 4 could be treated as tenants-in-common were divided, that part of the document can be clearly styled as a partition deed. At the same time, when properties to which one of the parties alone was having absolute right was included in the document and the said property was also divided by pooling it with the other properties, that part of the document

¶343

R.S.A. Nos. 396 & 399 of 2010

¶344

-: 49 :-

¶345

can only be the characteristic of an assignment by such party in favour of such other persons to whom such property was also allotted through a partition.

¶346

In Ramaswamy Pattamali v. Lakshmi [1962 KLT 243(FB)] , while dealing with a document with the nomenclature as that of a partition deed, it was held that partition in common as well as legal parlance, denotes a division of properties among co-sharers or joint tenants, and that a transaction by which property belonging to one is given or allotted to another can, in no sense, be a partition. In that particular case, it was held that the document concerned was a composite deed and in regard to the said properties, the said deed was an assignment deed only.

¶347

In Rameshwar Bakhsh v. Balraj Kuar [AIR 1935 PC 187], it was held:

¶348

“These two documents constitute the testamentary instrument, and in interpreting them it is the duty of the Court to find out the intention of the testator. It is clear that

¶349

R.S.A. Nos. 396 & 399 of 2010

¶350

-: 50 :-

¶351

that intention is to be gathered from the language used by the testator, because it is the words used in the instrument by which he has conveyed the expression of his wishes. The meaning to be attached to the words may however be affected by surrounding circumstances; and, when this is the case, those circumstances should be taken into consideration. As laid down by Section 82, Succession Act, the meaning of any clause in a will is to be collected from the entire instrument; and all the parts of a will are to be construed with reference to each other and so as, if possible, to form one consistent whole. Where it is not possible to reconcile all the parts, the latter must prevail.”

¶352

In Rameshwar Bakhsh (s upra) , a Will was executed by the testator in favour of his wife Annapurna Kaur, whereby reciting that Annapurna Kaur always remain in possession and enjoyment of the properties of the testator after his death in future with full powers of transfer

¶353

R.S.A. Nos. 396 & 399 of 2010

¶354

-: 51 :-

¶355

of every description. Thereafter, another clause was incorporated in the very same document stating that in the event of no male issues, his wife after her possession and enjoyment of the estate is authorised to select any one of her daughter's issue as her successor. Another similar clause was also incorporated. In that case, it was held that the subsequent clauses were repugnant to the absolute estate created in favour of the lady and, therefore, such clauses cannot cut down that estate and must consequently be held to be invalid.

¶356

In Ramakishorelal and another v.

¶357

Kamalnarayan (AIR 1963 SC 890), the Constitution Bench held:

¶358

“Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the

¶359

R.S.A. Nos. 396 & 399 of 2010

¶360

-: 52 :-

¶361

document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given.”

¶362

It was further held therein that every attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g. where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.

¶363

R.S.A. Nos. 396 & 399 of 2010

¶364

-: 53 :-

¶365

The learned Senior Counsel for the appellants has relied on paragraph 24 of the decision in Ramakishorelal ( supra), wherein it was held that the course of conduct of the parties is of no relevance for the construction of a document, which itself is unambiguously shown as absolute dedication.

¶366

The learned Senior Counsel for the appellants has argued on the basis of Odgers' Construction of Deeds and Statutes, Fifth Edition, Pages 119 and 120, that the intention of the parties in incorporating a recital in a document shall be collected from the language of the instrument and the same may be elucidated by the conduct they have pursued. In pages 119 and 120, it has been stated that:-

¶367

“The intention of the parties must be collected from the language of the instrument and may be elucidated by the conduct they have pursued.”

¶368

It has been further stated that:-

¶369

“A curious example occurs in North Eastern Ry v. Hastings (Lord), where the parties had for

¶370

R.S.A. Nos. 396 & 399 of 2010

¶371

-: 54 :-

¶372

many years interpreted a lease granted in 1854 in a sense different from that which it plainly bore. The parties had assumed that no rent was payable on coal not carried over Lord Hastings' land, whereas the true and plain construction was that the railway company was in fact liable to pay on all coal conveyed over any part of that particular line of railway, whether it passed over Lord Hastings' land or not. The lease was unambiguous and the actings of the parties clearly contrary to its terms. It is obvious that their mistake ought not to affect the construction of the lease and that no amount of user could prevail over the plain meaning of the words.”

¶373

It has been argued that in interpreting the terms of a document, full effect has to be given to the words used in the document in order to arrive at the intention of the parties. The document has to be interpreted by construing the meaning of the words actually used in the said document and not from the subsequent conduct of the parties. It has also been argued that the subsequent document created in respect of an earlier document also

¶374

R.S.A. Nos. 396 & 399 of 2010

¶375

-: 55 :-

¶376

cannot be made use of for interpreting the recitals in the earlier document.

¶377

In Devasironmani and another v. T.

¶378

Rajathangam and another [1998 (1) MLJ 322] it was held in paragraph 16:

¶379

“For interpreting a document, we have to interpret the document on the words used and not by the subsequent conduct. If the parties are not getting any title, to the property on the basis of the document, a mere subsequent statement that they have obtained title on the basis of the earlier document will not create interest in them.”

¶380

Reliance was placed on the passages from Odgers' “Construction of Deeds and Statutes”. It was further held that surrounding circumstances may be considered for the purpose of ascertaining the intended meaning of those words, specially when there is some ambiguity in the words, used in the document. It was further held therein that if a

¶381

R.S.A. Nos. 396 & 399 of 2010

¶382

-: 56 :-

¶383

document does not create a right ' in praesenti' , the claimant

¶384

could claim his right as if the said document is a Will.

¶385

It is the case of the respondents that no right was created in favour of the appellants, which was ' in praesenti' at the time of execution of Ext.A1. Even though the appellants were alive at the time of execution Ext.A1, no right ' in praesenti' was created and, therefore, the said Ext.A1 could not be treated as a family settlement.

¶386

In the question of interpretation, the learned Senior Counsel for the appellants has relied on the decision in Abdulla Ahmed v. Animendra Kissen Mitter [AIR 1950 SC 15] rendered by the Constitution Bench, wherein it was held in paragraph 23 as follows:

¶387

“The subsequent conduct of both the parties to the agreement very strongly supports this view. The evidence of such conduct is relevant in this case because, as pointed out by Viscount Simon, L.C., in the case already referred to, the phrase

¶388

R.S.A. Nos. 396 & 399 of 2010

¶389

-: 57 :-

¶390

"finding a purchaser" is itself not without ambiguity. Here the phrase is "securing a purchaser ". This phrase similarly is not without ambiguity. The evidence of conduct of the parties in this situation as to how they understood the words to mean can be considered in determining the true effect of the contract made between the parties. Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument. (Vide para. 343 of Hailsham Edn. of Halsbury, Vol. 10, p. 274).”

¶391

(Emphasis supplied)

¶392

For the interpretation and construction of a document in which such various clauses are there, the decision of the Constitution Bench in Abdulla Ahmed (supra) gives light that the conduct of the parties to such a

¶393

R.S.A. Nos. 396 & 399 of 2010

¶394

-: 58 :-

¶395

document as to how they have understood the terms of the document can also be considered. Extrinsic evidence to determine the effect of an instrument is permissible and the e vidence of the acts done under such document is a guide to the intention of the parties in such a case . Therefore, it is trite law that it cannot be said in all cases that the subsequent conduct of the parties cannot be considered for interpreting the true nature of a document and to ascertain the true intention of the parties to such a document. In such circumstances, the subsequent conduct of the parties to note down as to how they understood the clauses in the document can be considered to arrive at the real intention of the parties who executed the document, at the time of its execution.

¶396

The learned Senior Counsel for the respondents, by relying on the decision in M.N. Aryamurthy and another v. M.D. Subbaraya Setty [AIR 1972 SC 1279] rendered by a three Judge Bench, has argued that Ext.A1 cannot be

¶397

R.S.A. Nos. 396 & 399 of 2010

¶398

-: 59 :-

¶399

considered as a family settlement. It was held in paragraph 10 of the decision noted supra , that:

¶400

“As pointed out in Halsbury's Laws of England, 3rd Edition, Vol. 17, at p. 215: A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.”

¶401

The aforesaid view in relation to family settlement had been originally formed by the Apex Court in Maturi Pullaiah and another v. Maturi Narasimham and others [AIR 1966 SC 1836].

¶402

It was further held in M.N. Aryamurthi (supra)

¶403

that:

¶404

“It will be, therefore, seen that, in the first place, there must be an agreement amongst the various members of the family intended to be

¶405

R.S.A. Nos. 396 & 399 of 2010

¶406

-: 60 :-

¶407

generally and reasonably for the benefit of the family. Secondly, the agreement should be with the object either of compromising doubtful or disputed rights, or for preserving the family property, or the peace and security of the family by avoiding litigation, or for saving its honour. Thirdly, being an agreement, there is consideration for the same, the consideration being the expectation that such an agreement or settlement will result in establishing or ensuring amity and good-will amongst the relations.”

¶408

The learned Senior Counsel for the respondents

¶409

has pointed out that in the family of the parties, there existed peace always till the death of Sreedhara Panicker. There were no litigations among the parties prior to the death of Sreedhara Panicker, and the family members were living peacefully in cordial terms. It has to be noted that the property in question covered by Survey No.225/1 of the Koyipuram village, which is the Pullad property, was, in fact, the separate property of the 4^th party to Ext.A1 document, who is the 1^st respondent herein. The same is evident from

¶410

R.S.A. Nos. 396 & 399 of 2010

¶411

-: 61 :-

¶412

the recitals in Ext.B3. His father late Kochu Parameswara Pillai had clearly acknowledged in Ext.B3 that the said property was acquired by the 1^st respondent with the funds raised by the 1^st respondent. The said document clearly gives a glimpse that the two storied building in the said property was also put up by Gopalakrishna Panicker. In such circumstances, normally, there would not have been any claim from any other person over the said property.

¶413

Even in such case, it seems that the 1^st respondent did not stand in the way of the wishes of his father to include the said property also in the said document, and he had willingly participated as a party in Ext.A1. The said property, which was, in fact, his own property, was also willingly pooled along with the other properties and the same was also divided. In such circumstances, in normal course, it could not have been considered that Sreedhara Panicker and the 1^st respondent did not want to exercise their absolute rights over such a property. When that

¶414

R.S.A. Nos. 396 & 399 of 2010

¶415

-: 62 :-

¶416

property was also pooled, Ext.A1 document, so far as it relates to the share from it, allotted to the share of the said Sreedhara Panicker is concerned, can only be styled as a deed of assignment. It is evident that through Ext.A1, the 1^st respondent had assigned half the property to his elder brother Sreedhara Panicker in order to fulfill the wishes of his father.

¶417

In K.H.Krishna Iyer and others v. Parvathy Ammal and others [1988 (2) KLJ 156] , a learned Single Judge of this Court had occasion to consider the parameters, which can bring a document in the category of a family arrangement. In order to bring out a document within the scope of family arrangement, it was held that -

¶418

“........the essential requirements are (1) there must be agreement among the various members intended generally and reasonably for the benefit of the family, (2) the agreement must be with the object of compromising doubtful or disputed claims or rights for preserving the family property or for purchasing peace and security of

¶419

R.S.A. Nos. 396 & 399 of 2010

¶420

-: 63 :-

¶421

the family by avoiding litigation or saving its honour and (3) there is consideration which could be the expectation that the arrangement will result in establishing or ensuring amity or goodwill among the relations. It must be an arrangement that comes into existence in presente.”

¶422

In that particular case in K.H.Krishna Iyer (Supra) , the father had dealt with joint family properties and while effecting partition, he had unilaterally imposed conditions with regard to the properties on which he had no right at all. In that context, it was held that father has no right to impose his unilateral family arrangement under the guise of exercising the right of partition and that the father cannot deal with the joint family property at his sweet will to be operative after his death.

¶423

In this particular case also, it has to be noted that either Kochu Parameswara Pillai, who was the first party, Kuttiamma, who was the second party, and Sreedhara Panicker, who was the third party to Ext.A1, had no rights

¶424

R.S.A. Nos. 396 & 399 of 2010

¶425

-: 64 :-

¶426

over the Pullad property. It is true that the 4^th party, who is the 1^st respondent, participated in the execution of Ext.A1. In such case, going by the decision in K.H. Krishna Iyer (supra), the father could not have imposed such unilateral conditions regarding the future enjoyment of the property and he could not have imposed such unilateral conditions regarding the mode of enjoyment of the said property at his sweet will and pleasure, when he had no rights over the said property.

¶427

When considering the aforesaid special circumstances, the decision in Abdulla Ahmed v.

¶428

Animendra Kissen Mitter [AIR 1950 SC 15] rendered by the Constitution Bench is squarely applicable to the interpretation and construction of Ext.A1. In the case of Ext.A1, the subsequent conduct of the parties and the manner in which the parties have understood the recitals in the document and its various clauses, have also to be considered for gathering the intention of the parties in

¶429

R.S.A. Nos. 396 & 399 of 2010

¶430

-: 65 :-

¶431

incorporating such conditions in Ext.A1.

¶432

Ext.B1 was executed by Sreedhara Panicker and Gopalakrishna Panicker on 24.11.1983. One of the prior documents mentioned in Ext.B1 is Ext.A1. It seems that both the said parties to Ext.B1 had given a go by to all the other clauses and conditions incorporated at the instance of Kochu Parameswara Pillai in Ext.A1 with regard to the Pullad property except, the allotment of the Pullad property in equal shares to Sreedhara Panicker and the 1^st respondent. It is evident that they had treated the Pullad property as their absolute property and willingly, Sreedhara Panicker had exchanged 17 cents of property, which is the western half of 34 cents of Pullad property, to R1 on obtaining the 29 cents of property from the Santhipuram junction property, which belonged to R1. Therefore, it is evident that even at the time of execution of Ext.B1, both the

¶433

3^rd party and the 4^th party to Ext.A1 had understood the terms of allotment in Ext.A1 with regard to Pullad property

¶434

R.S.A. Nos. 396 & 399 of 2010

¶435

-: 66 :-

¶436

as absolute vesting in their favour.

¶437

Of course, it is true that the appellants were not parties to Ext.B1. They were not parties to Ext.A1 also. Therefore, in terms of the dictum laid down by the Apex Court in Abdulla Ahmed (supra) , the subsequent conduct of Sreedhara Panicker and the appellants, which go to show as to have they have understood the terms of Ext.A1, assumes much importance. On considering the entire evidence and the documents executed among the parties, this Court is of the view that a true interpretation of Ext.A1 is not at all necessary, in view of the subsequent conduct of the appellants with regard to the Pullad property, which is the subject matter in both these suits.

¶438

After the execution of Ext.B1, Sreedhara Panicker along with his wife Ponnamma, executed a joint and mutual Will in the year 1994 including the properties, which are the subject matter of Ext.B1 allotted to the share of Sreedhara Panicker. The appellants cannot be heard to say that they

¶439

R.S.A. Nos. 396 & 399 of 2010

¶440

-: 67 :-

¶441

are not aware of the terms and conditions of 1994 Will. In 1994 Will, Ext.B1 is clearly mentioned. Therefore, the appellants cannot be further heard to say that they were not aware of Ext.B1. They were aware of Ext.B1. At the same time, they may be able to contend that they are not bound by Ext.B1 since they were not made parties to Ext.B1, unless it is shown that they have accepted and acted upon Ext.B1.

¶442

In order to ascertain whether the appellants have knowingly accepted and acted upon Ext.B1, the subsequent conduct and long silence, if any, of the appellants have also to be considered. After the execution of 1994 Will based on Ext.B1, the 2^nd appellant along with his mother had executed Ext.B7 sale deed in respect of a portion of the property covered by 1994 Will, that too, a portion of the property alloted to the share of Sreedhara Panicker in Ext.B1. Therefore, the 2^nd appellant cannot say that he was not aware of the execution of Ext.B1 or that he had not handled

¶443

R.S.A. Nos. 396 & 399 of 2010

¶444

-: 68 :-

¶445

the properties alloted to his father through Ext.B1.

¶446

Apart from the above, Exts.B4 and B5 assume greater importance to note down the manner in which Sreedhara Panicker as well as the appellants had treated Ext.A1 as well as Ext.B1. Ext.B4 dated 22.12.1995 was executed by Sreedhara Panicker in favour of his daughter Indiradevi. Even though Sreedhara Panicker could have conveyed the said property by himself, the circumstances clearly reveal that he had the absolute intention to make it known to the 1^st appellant. It was the 1^st appellant to whom Sreedhara Panicker had bequeathed the property covered by Ext.B4, which Sreedhara Panicker had received through Ext.B1. He took the 1^st appellant to the document writer's office for preparing Ext.B4 and made him an attestor in the document. He did not stop there. He took the 1^st appellant to the Sub Registrar's office, where he was made to identify Sreedhara Panicker, who was the executant of the document. That was because of the fact that Sreedhara

¶447

R.S.A. Nos. 396 & 399 of 2010

¶448

-: 69 :-

¶449

Panicker direly wanted to make his son aware of the fact that he was dealing with a property, which was the subject matter of Ext.A1, which was dealt with by him and his brother in Ext.B1, and that he wanted to convey a portion of the said property, even when it was incorporated in the 1994 Will as a part of bequest in favour of the 1^st appellant.

¶450

Sreedhara Panicker wanted a quietus with regard to his acts and wanted a proper acknowledgment with regard to all these, from the 1^st appellant. Otherwise, Sreedhara Panicker could have conveyed the property at his sweet will and pleasure, even without the knowledge and consent of the 1^st appellant. Sreedhara Panicker had made mention of Ext.B1 partition deed, as well as the 1994 Will executed by him and his wife, in Ext.B4. The 1^st appellant, at any stretch of imagination, cannot contend that he was not aware of Ext.B1 or Ext.B4.

¶451

Similar is the case with Ext.B5 also. Ext.B5 was also executed by Sreedhara Panicker on 22.12.1995 itself,

¶452

R.S.A. Nos. 396 & 399 of 2010

¶453

-: 70 :-

¶454

in favour of Gopinathan Nair, who is the husband of Indiradevi, the vendee in Ext.B4. Even when Sreedhara Panicker had conveyed a portion of the Santhipuram junction property to his son-in-law, he was very particular to take the 2^nd appellant also along with him at the time of execution and registration of the document. The 1^st appellant also was aware of the execution and registration of Ext.B5. In Ext.B5, Sreedhara Panicker had deliberately made the 2^nd appellant one of the attestors, and the 1^st appellant as the witness, who identified Sreedhara Panicker during registration. It is evident that Sreedhara Panicker deliberately wanted to make his sons aware of the execution of Exts.B4 and B5 and also the execution of Ext.B1 and the subsequent Will of 1994.

¶455

The learned Senior Counsel for the appellants has argued that the mere fact that the appellants were made attestors, or witnesses to identify the executant in Exts.B4 and B5, cannot impute knowledge on them with regard to

¶456

R.S.A. Nos. 396 & 399 of 2010

¶457

-: 71 :-

¶458

the contents of Exts.B4 and B5. Learned Senior Counsel has relied on Ganesh Bhandary v. Ambunhi [1989 (2) KLT 882] , wherein a Division Bench of this Court had relied on the decisions in Banga Chandra Biswas v. Jagat Kishore Achariya Chowdhuri [AIR 1916 PC 110] and Pandurang Krishnaji v. M.Tukaram and others [AIR 1922 PC 20] . In Ganesh Bhandary (supra), it was held that by reason of mere attestation of a document, it is not possible to attribute

¶459

to an attestor the knowledge of the contents of a document.

¶460

In Banga Chandra Biswas (supra), it was held:-

¶461

"......... attestation proves no more than that the signature of an executing party has been attached to a document in the presence of a witness. It does not involve the witness in any knowledge of the contents of the deed nor affect him with notice of its provisions. It could, at the best, be used for the purpose of crossexamination, in order to extract from the witness evidence to show that he was, in fact, aware of the character of the transaction effected by the document to which his attestation was affixed."

¶462

R.S.A. Nos. 396 & 399 of 2010

¶463

-: 72 :-

¶464

In Pandurang Krishnaji (supra), it was held:-

¶465

"Before their Lordships consider the circumstances in which that attestation took place, they think it is desirable to emphasize once more that attestion of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution of the deed. It conveys neither directly nor by implication any knowledge of the contents of the document, and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects."

¶466

In Rajammal alias Sundarammal and others

¶467

[AIR 1945 PC 82], it was held:-

¶468

"It is settled that mere attestation is not enough to involve the witnesses with knowledge of the contents of the deed, and this is equally true of the witnesses who identify the executant before the Registrar.”

¶469

In Torabaz Khan and another v. Nanak Chand

¶470

and another [AIR 1932 Lahore 566], it was held:-

¶471

R.S.A. Nos. 396 & 399 of 2010

¶472

-: 73 :-

¶473

"It is true that, merely by signing a document as an attesting witness, a person cannot be said to have knowledge of its contents, but there may be circumstances when he would be deemed to have notice of the contents of the document which he is attesting and signing as a witness."

¶474

The learned Senior Counsel for the respondents has relied on the decision in State of Kerala v. M.A. Babu and another [2003 (2) KLJ 299], wherein it was held:-

¶475

"But then one cannot be unmindful of the realities of everyday life that when the son functions as attestor to a document executed by his own old, sick and infirm father, the son may be playing a major role in the matter of arranging for the sale identifying the purchaser and even negotiating as to what should be the consideration for the sale. Attestor to a document cannot by mere attestation be imputed with the knowledge of the contents of the document. However, on the facts of a given case where there is a close relationship between the executant and the attestor such as husband and

¶476

R.S.A. Nos. 396 & 399 of 2010

¶477

-: 74 :-

¶478

wife, father and son, the possibilities of the attestor having knowledge regarding the recitals in the documents and about the circumstances under which the document came to be executed cannot be ruled out. Under the order of clarification I permitted the petitioner to examine the son of the executant, an attestor to the document as a substitute for his father only because of the submission that the son is competent to speak about the circumstances under which the document was executed."

¶479

In the light of the aforesaid judicial pronouncements, it cannot be said that a straight jacket formula can be evolved to find in all cases that the attestors

¶480

of such documents cannot be imputed with the knowledge of its contents. It depends from persons to persons and circumstances to circumstances. The evidence adduced by the parties on these aspects have to be considered to arrive at a conclusion as to whether the appellants had knowledge

¶481

of the contents of Exts.B4 and B5 and also the fact of execution of Ext.B1.

¶482

R.S.A. Nos. 396 & 399 of 2010

¶483

-: 75 :-

¶484

The 1^st appellant as PW1 has admitted that he was aware of the conditions incorporated in Ext.A1, 10-20 years back. He has further admitted that the Karukachal property was convenient to his father. At the same time, he has further stated that only after this case, he came to know that Karukachal property was included in the share of his father in Ext.B1 and that he had no prior occasion to come to know about it. He has clearly admitted that his father obtained Santhipuram junction property and also the paddy field lying adjacent to his family house. Then, he clearly admitted that his father obtained the said properties through Ext.B1. His further admissions clearly reveal that the said properties were being exclusively possessed by his father from 1983 onwards. PW1 has clearly admitted that after 1983, no properties were jointly possessed and enjoyed by his father and R1 and that, his father and R1 were separately possessing and enjoying their respective properties. According to PW1, the 58 cents of Santhipuram

¶485

R.S.A. Nos. 396 & 399 of 2010

¶486

-: 76 :-

¶487

junction property is the share exclusively allotted to his father through Ext.B1 and that R1 was having right over the half portion of the said property prior to the execution of Ext.B1.

¶488

As per 1994 will, Sreedhara Panicker and his wife Ponnamma had dealt with the 58 cents of Santhipuram junction property, which included the 29 cents given by R1 to Sreedhara Panicker as his share in Ext.B1. 12 cents from the eastern portion of the said property was bequeathed to the 1^st appellant and 10 cents at its western side was bequeathed to the 2^nd appellant. He bequeathed the remaining properties on the western side of Santhipuram junction property to his daughters excluding Santhakumari and also to the daughter of Santhakumari.

¶489

Through Ext.B4, Gopalakrishna Panicker sold the 12 cents of property bequeathed to the 1^st appellant along with 4.80 cents of property more from it, to his daughter Indiradevi. Similarly, Sreedhara Panicker sold 10 cents of

¶490

R.S.A. Nos. 396 & 399 of 2010

¶491

-: 77 :-

¶492

property bequeathed to the 2^nd appellant from the western side of the aforesaid 12 cents, to Gopinathan Nair, who is the husband of Indiradevi, through Ext.B5. That is the reason why Sreedhara Panicker has deliberately made the 1^st appellant as an attestor as well as the witness to identify him in Ext.B4. Same is the case with the 2^nd appellant also, when Sreedhara Panicker made the 2^nd appellant as an attestor in Ext.B5 and the 1^st appellant as the witness to identify the vendor. PW1 has clearly admitted that he had accompanied his father to the document writer's office for the execution of Exts.B4 and B5, and also to the Sub Registrar's office for its registration.

¶493

Apart from the above, PW1 has categorically admitted that the 12 cents of property was sold by his father through Ext.B4 for meeting the expenses of the marriage of his (PW1's) daughter named Nimmi, and also for meeting the treatment expenses of Sreedhara Panicker. Whatever it is, it is a fact that the 1^st appellant had gained the benefit

¶494

R.S.A. Nos. 396 & 399 of 2010

¶495

-: 78 :-

¶496

derived out of the sale of a portion of the Santhipuram junction property covered by Ext.B1. Matters being so, either the 1^st appellant or the 2^nd appellant cannot contend that they were not aware of the contents of Ext.B1.

¶497

Now, in order to consider whether the appellants had direct knowledge of the contents of Ext.B1, the schedule appended to Ext.B2 assumes greater importance. Ext.B2 is dated 14.06.2001 and the same was executed by the appellants in favour of defendants 2 and 3. The same is in respect of 2.105 cents of property from the north western corner of the Pullad property and that portion of the building situated in it. In the description of the property covered by Ext.B2, it has been specifically mentioned about the strip of land having the width of 6 feet behind the said building portion. That portion of the strip of land having a width of 6 feet situated behind the building portion sold to defendants 2 and 3 was also included as the subject matter of the sale. The stipulation regarding the strip of land having the width of

¶498

R.S.A. Nos. 396 & 399 of 2010

¶499

-: 79 :-

¶500

6 feet assumes much importance because of the fact that such a stipulation is available only in Ext.B1 and in no other documents at all. Had the appellants been not aware of the contents of Ext.B1, they could not have incorporated in Ext.B2, the terms regarding that strip of land having 6 feet width. Therefore, in the light of the description of the property conveyed through Ext.B2 alone, it can be said that the appellants were fully aware of the terms and conditions contained in Ext.B1. Therefore, as rightly pointed out by the learned Senior Counsel for the respondents, the appellants cannot be heard to say that they had no knowledge with regard to the execution as well as the contents of Ext.B1.

¶501

The respondents have placed heavy reliance on the fact that the appellants had derived benefits from the execution of Ext.B1 and, therefore, they cannot presently approbate and reprobate. In the decision in Ramaswami Pattamali v. Lakshmi [1962 KLT 243 (FB)] , it was held that:

¶502

“A party taking a benefit under a transaction

¶503

R.S.A. Nos. 396 & 399 of 2010

¶504

-: 80 :-

¶505

with another cannot be heard to assert subsequently that the transaction was ineffective or void to the prejudice of the other. Plaintiffs having taken a benefit by the allotment of the suit properties to the defendants' branch at the expense of the latter have precluded themselves from denying the validity of that allotment.”

¶506

From all the discussions made above, it can safely be concluded that the subsequent conduct of the parties, on account of the execution of Exts.B1, B4, B5 and B2, clearly reveal that the intention of the parties at the time of execution of Ext.A1 was to allot the Pullad property equally to Sreedhara Panicker and R1. When the first party had no right or title over the Pullad property at the time of execution of Ext.A1, he could not have curtailed and imposed further conditions restricting the absolute estate of parties 3 and 4 over the said properties. As duty bound sons, it is evident that Sreedhara Panicker and R1 obeyed their parents and willingly permitted their parents to hold and possess and enjoy the properties for their life.

¶507

R.S.A. Nos. 396 & 399 of 2010

¶508

-: 81 :-

¶509

That does not mean that they had permitted the first party to impose further conditions restricting or curtailing the absolute estate created on them in respect of the Pullad property. Whatever it is, whether those conditions are repugnant to the absolute estate created, or whether those conditions are mere pious wish of the first party to Ext.A1, do not assume much importance, as held earlier. In the light of the execution of Ext.B1, it is very clear that parties 3 and

¶510

4 of the document had virtually abandoned all those restrictions imposed on them with regard to the Pullad property. Over and above it, the appellants were deliberately made known about the execution of Exts.B1, B4 and B5, by Sreedhara Panicker. When the appellants were all along present with their father during the preparation, execution and registration of Exts.B4 and B5, they cannot be heard to say that they were not aware of the execution of Ext.B1.

¶511

As rightly pointed out by the learned Senior Counsel for the respondents, these appellants had derived

¶512

R.S.A. Nos. 396 & 399 of 2010

¶513

-: 82 :-

¶514

benefits from the sale created through Exts.B4 and B5. Exts.B4 and B5 relate to the valuable Santhipuram junction property, the half of which was willingly exchanged by R1 to Sreedhara Panicker, after obtaining the 17 cents out of the Pullad property. It has also come out that there is not even a way to that portion of the Pullad property, which was exchanged by Sreedhara Panicker to R1. Moreover, it comes behind the building situated in the property. The only convenience for R1 in the said exchange was that the eastern and southern properties adjoining the said 17 cents belonged to him and, therefore, he could enjoy that portion of the property also along with his remaining properties lying at its eastern side as well as southern side.

¶515

It has been argued on the side of the respondents that there is intentional relinquishment of the rights, if any, created on the appellants through Ext.A1, by the appellants even if it is considered that some interest was created in favour of the appellants through Ext.A1. The learned Senior

¶516

R.S.A. Nos. 396 & 399 of 2010

¶517

-: 83 :-

¶518

Counsel for the respondents has relied on the decision in State of Assam v. Bhaskar Jyoti Sarma and others [(2015) 5 SCC 321] , wherein it was held in paragraph 16 that-

¶519

“The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile landowner on 7.12.1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did no do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would give a licence to a litigant to make a grievance not because he has suffered any real prejudice

¶520

R.S.A. Nos. 396 & 399 of 2010

¶521

-: 84 :-

¶522

that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure.” (Emphasis supplied)

¶523

In paragraph 17, it was further held that-

¶524

“The fact that the dispossession was without a notice under Section 10(5) in the present case will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because the erstwhile owner that is the father of the Respondents had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so. Hence, the order of the Single Judge of the High Court is restored.” (Emphasis supplied)

¶525

In Volume 45, Halsbury's Laws (4^th Edition), paragraph 1269, the meaning of the word “waiver” has been described as follows:-

¶526

“1269. Waiver is the abandonment of a right, and thus is a defence against its subsequent

¶527

R.S.A. Nos. 396 & 399 of 2010

¶528

-: 85 :-

¶529

enforcement. Waiver may be express or, where there is knowledge of the right, may be implied from conduct which is inconsistent with the continuance of the right. A mere statement of an intention not to insist on a right does not suffice in the absence of consideration; but a deliberate election not to insist on full rights, although made without first obtaining full disclosure of material facts, and to come to a settlement on that basis, will be binding.”

¶530

The doctrine of waiver has been explained in Kammins Ballrooms Co. Ltd. v. Zenith Investments

¶531

(Torquay) Ltd. [(1970) 2 All.E.R. 871] as:

¶532

“Waiver is an abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may sometimes resemble a form of election, and sometimes be based on ordinary principles of estoppel.”

¶533

R.S.A. Nos. 396 & 399 of 2010

¶534

-: 86 :-

¶535

The main qualification to invite the doctrine of waiver is that it should be an intentional relinquishment of a known right. In such case, waiver must always be an intentional act with knowledge. In Central London Property Trust Ltd. v. High Trees House Ltd. [(1947) 1 KB 130], the Court observed as under:

¶536

“It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though

¶537

R.S.A. Nos. 396 & 399 of 2010

¶538

-: 87 :-

¶539

it is not supported in point of law by any consideration.”

¶540

The doctrine of “waiver” has been interpreted by

¶541

American cases in the same manner. In Scherer v. Wahlstrom [Tax Civ App. 318 SW 2d 456, 459], the waiver is relinquishment or surrender of a right. The Court

¶542

observed as under:

¶543

“A 'waiver' is a giving up, relinquishment or surrender of some known right and takes place where a person dispenses with the performance of something which he has a right to exact.”

¶544

In Smith v. Mcknight [Tax Civ App.240 SW 2d

¶545

368, 371, 372] the Court observed as under:

¶546

“A 'waiver' is a giving up, relinquishment or surrender of some known right, and takes place where a person dispenses with the performance of something which he has a right to exact.”

¶547

The same principles have been adopted in Covington

¶548

R.S.A. Nos. 396 & 399 of 2010

¶549

-: 88 :-

¶550

Virginian v. Woods and Missouri State Life Ins. Co, v. Le

¶551

Fevre, Tex [10 SW 2d 267, 269]

¶552

In Inderpreet Singh Kahlon and others v. State

¶553

of Punjab and others [(2006) 11 SCC 356], the doctrine of waiver was considered in detail. In paragraph 132, it was held-

¶554

“In Vol.16, Halsbury's Laws (4^th Edn.), para 1471, the term “waiver” has been described in the following words:

¶555

“1471. Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may sometimes resemble a form of election, and sometimes be based on ordinary principles of estoppel, although, unlike estoppel, waiver must always be an intentional act with knowledge. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of

¶556

R.S.A. Nos. 396 & 399 of 2010

¶557

-: 89 :-

¶558

this kind depends upon consent, and the fact that the other party has acted on its is sufficient consideration. Where the waiver is not express it may be implied from conduct which is inconsistent with the continuance of the right, without need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver.”

¶559

It was further held in Inderpreet Singh (supra)

¶560

that-

¶561

“It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration.”

¶562

R.S.A. Nos. 396 & 399 of 2010

¶563

-: 90 :-

¶564

It is evident that in this particular case, the appellants had derived benefits from Ext.B1. Through Ext.B1, Sreedhara Panicker and R1 had abandoned and had given up the conditions restraining alienation as if those conditions were not binding on them, and they treated the Pullad property as their absolute estate. The appellants being persons, who were aware of the contents of Ext.B1, all along kept silent and obtained benefit out of Ext.B1. In such circumstances, when R1 had acted upon the express waiver initially made by Sreedhara Panicker, which was followed by the appellants, the appellants cannot presently challenge the validity of Ext.B1 or question the authority of the executants of Ext.B1 to execute such a document.

¶565

Here, in this particular case, there is clear waiver from the part of Sreedhara Panicker and these appellants through the terms of Ext.B1 followed by 1994 Will, Exts.B4, B5 and B2, and also through their subsequent conduct in handling the properties. After heeding to the terms and

¶566

R.S.A. Nos. 396 & 399 of 2010

¶567

-: 91 :-

¶568

conditions contained in Ext.B1, and after deriving benefits out of the transactions contained in Ext.B1, and especially after making R1 to act upon the terms and conditions in Ext.B1, the appellants cannot be allowed to revert to the previous legal relationships being claimed by them under Ext.A1.

¶569

The learned Senior Counsel for the appellants, by relying on M/s Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh [AIR 1979 SC 621], argued that the waiver is a question of fact and it must be properly pleaded and proved. It has also been argued that no plea of waiver can be allowed to be raised, unless it is pleaded and the factual foundation for it is laid in the pleadings. In paragraph 5 of M/s Motilal Padampat Sugar Mills Co. (supra), it was held:

¶570

“It is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be

¶571

R.S.A. Nos. 396 & 399 of 2010

¶572

-: 92 :-

¶573

allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such affidavit. It was raised for the first time at the hearing of the writ petition.”

¶574

It was further held in paragraph 6:

¶575

“ Waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be "an intentional act with knowledge". There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it.”

¶576

According to the learned Senior Counsel for the appellants, 'waiver' has not been pleaded in the written statement filed by the respondents in O.S.No.538/2001. At

¶577

R.S.A. Nos. 396 & 399 of 2010

¶578

-: 93 :-

¶579

the same time, on a perusal of the written statement filed by the first respondent, it has clearly come out that all the factual foundation, contending full facts for invoking waiver have been pleaded in paragraphs 9 and 10. At the same time, after pleading necessary facts, which can certainly invite 'waiver', in the last sentence of paragraph 10, it has been stated that, 'therefore, the suit is hit by the principle of estoppel'. What are required to be pleaded are facts and not law. If factual foundation is there, it is the duty of the court to apply law, and parties are not expected to plead law. When paragraphs 9 and 10 in detail contain all the facts to invite the doctrine of waiver, the fact that the party has chosen to treat it as estoppel is of no consequence. Matters being so, if at all any rights or interests were created in favour of the appellants through Ext.A1 in respect of Pullad property, it is evident that they had intentionally waived the right to claim such rights or interests over the Pullad property.

¶580

R.S.A. Nos. 396 & 399 of 2010

¶581

-: 94 :-

¶582

105. In Rahima Bee v. Amathul Mannan Bee and

¶583

others [AIR 1936 Madras 140] , it was held that -

¶584

"There is however a good deal of force in the contention that the plaintiff has obtained a solid benefit by the transaction carried out bona fide by her mother for consideration and that she should not be allowed both to approbate and to reprobate, to get the benefit of this transaction and at the same time treat it as void."

¶585

The learned Senior Counsel for the appellants has further argued that a simple suit for injunction is not maintainable in O.S.No.545/2002. It is argued that when a cloud has been caste upon the title allegedly claimed by the respondents over the plaint schedule property in O.S.No.545/2002, the respondents who were the plaintiffs in the said suit ought to have amended the plaint by incorporating a relief for the declaration of their title or at least they ought to have paid court fee under Section 27(a) of the Kerala Court Fees and Suits Valuation Act and

¶586

R.S.A. Nos. 396 & 399 of 2010

¶587

-: 95 :-

¶588

requested the trial court to have an adjudication on the issue of title.

¶589

The said argument is clearly double edged. At first, the appellants were the persons who approached the trial court with O.S.No.538/2001. They filed the suit as one for perpetual injunction alone. Even when they had waived their rights, if any, created on them through Ext.A1, they had not chosen to get their so-called title over the plaint schedule properties in O.S.No.538/2001 declared. At the same time, they are lamenting on the shortcomings in the plaint in O.S.No.545/2002 and complaining that the respondents have not sought for the relief of declaration of their title over the property. Even according to the appellants, they could well maintain O.S.No.538/2001. They cannot complain that the respondents ought to have sought for declaration of title of the respondents over the said property. The appellants could have done it in O.S.No.538/2001.

¶590

R.S.A. Nos. 396 & 399 of 2010

¶591

-: 96 :-

¶592

The learned Senior Counsel for the appellants has relied on Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs & others [2008 SAR(Civil) 878 = AIR 2008 SC 2033], wherein the Apex Court has laid down the general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief. It was held in paragraphs 11.1 to 11.3 as follows:

¶593

“11.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

¶594

11.2. Where the title of the plaintiff is not disputed, but he is not in possession, his

¶595

R.S.A. Nos. 396 & 399 of 2010

¶596

-: 97 :-

¶597

remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

¶598

11.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.”

¶599

The question therefore, is to be considered is whether the respondents could establish their possession over the plaint schedule properties in O.S.No.545/2002. The respondents

¶600

R.S.A. Nos. 396 & 399 of 2010

¶601

-: 98 :-

¶602

have no case that they were dispossessed or they were about to be dispossessed.

¶603

The next question to be considered is whether any cloud has been caste upon the title of the respondents over the said property. According to the appellants, the property involved in O.S.545/2002 is a vacant site and is full of bushes and all. According to the learned Senior Counsel for the appellants, since there is no cultivation in the property, it cannot be said that the respondents are in possession of the said property and, in such case, in order to establish possession, an issue regarding title and prior possession on the basis of title is required to be proved.

¶604

In Anathula Sudhakar ( supra ), it was held in paragraph 14:

¶605

“But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site,

¶606

R.S.A. Nos. 396 & 399 of 2010

¶607

-: 99 :-

¶608

one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a fullfledged suit for declaration and consequential reliefs.”

¶609

R.S.A. Nos. 396 & 399 of 2010

¶610

-: 100 :-

¶611

It has clearly come out in evidence that there are coconut trees in the said property. The appellants have no case that they are plucking coconuts from the said trees; whereas it is the clear case of DW1 that he is enjoying the property. In paragraph 17 of Anathula Sudhakar (supra ), the Apex Court has summarised the position in regard to suits for prohibitory injunction relating to immovable property as follows:

¶612

“Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

¶613

R.S.A. Nos. 396 & 399 of 2010

¶614

-: 101 :-

¶615

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

¶616

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are

¶617

R.S.A. Nos. 396 & 399 of 2010

¶618

-: 102 :-

¶619

necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

¶620

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to

¶621

R.S.A. Nos. 396 & 399 of 2010

¶622

-: 103 :-

¶623

identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

¶624

The decision in Anathula Sudhakar ( supra ) has been followed by the Apex Court in Muddasani Venkata Narsaiah(d) through Lrs. v. Muddasani Sarojana [2016 SAR (Civil) 829] and held that in a suit wherein the plaintiff had purchased the suit property through a registered sale deed and the defendant did not claim title with reference to any document but claimed to have perfected title by adverse possession, the said plea did not prima facie put any cloud over the plaintiff's title calling him to file a suit for declaration of title.

¶625

Here, in this particular case, when the appellants are admitting Exts.B4, B5, and B2 and when they have admitted 1994 Will executed by Sreedhara Panicker and Ponnamma, which contains the specific recitals with regard

¶626

R.S.A. Nos. 396 & 399 of 2010

¶627

-: 104 :-

¶628

to Ext.B1, it cannot be said that the respondents have been forwarding an arguable case with regard to any right or title over the plaint schedule property in O.S.No.545/2002. When they have forwarded some claims by disregarding the waiver exercised by them and the documents, which were directly known to them as aforesaid, it cannot be said that the same has caused any cloud on the title of the respondents, over the said property.

¶629

Based on the decision in Annaimuthu Thevar (Dead) by Lrs. v. Alagammal and others [(2005) 6 SCC 202] in which the decision in Sulochana Amma v. Narayanan Nair [(1994) 2 SCC 14] was followed, it was argued that it is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. It has also been pointed out that when such an issue is put in a suit and the very same issue is put in a later suit based on title between the same parties or their privies,

¶630

R.S.A. Nos. 396 & 399 of 2010

¶631

-: 105 :-

¶632

the decision in the earlier suit will operate as res judicata in respect of the later one.

¶633

The learned Senior Counsel for the respondents has invited the attention of this Court to the decision in Ramji Rai and another v. Jagdish Mallah (Dead) through L.Rs. and another [AIR 2007 SC 900] , wherein it was held in paragraph 10-

¶634

"Under Section 38 of the Specific Relief Act, 1963 an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. In the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of his rights.”

¶635

In Janaki Amma and others v. Madhava Kurup

¶636

and others [1961 KLT 697], it was held-

¶637

R.S.A. Nos. 396 & 399 of 2010

¶638

-: 106 :-

¶639

"To sustain a motion for injunction it is enough if the plaintiffs prove that they have been in peaceful possession of the property and that the defendants are attempting to oust them without recourse to law. The view of the courts below that the plaintiffs' possession is only that of trespassers and therefore they are not entitled to an injunction is clearly unsustainable.”

¶640

The learned Senior Counsel for the respondents contended that in this case, any issue of title is not required to be decided, and Exts.A1, B1, Will of 1994, Exts.B4, B5 and B2 will clearly reveal that the title of the property involved in O.S.No.545/2002 is in favour of R1. The argument is that the possession follows title and therefore, the scope of interpretation of the aforesaid document is very limited, for which an issue of title need not be raised and decided.

¶641

The learned Senior Counsel for the appellants has invited the attention of this Court to the decision in

¶642

Kuniyil Govindan and others v. Thayyullathil Bhaskaran

¶643

R.S.A. Nos. 396 & 399 of 2010

¶644

-: 107 :-

¶645

rendered by a learned Single Judge of this Court in S.A.No.620/1991, wherein it was held that in a case wherein possession was one being claimed as derived from title, the trial court ought to have framed an issue of title in terms of S.27(a) of the Kerala Court Fees and Suits Valuation Act and ought to have directed to pay court fee in terms of that provision.

¶646

The learned Senior Counsel for the respondents has relied on the decision in Kallappa Ram Londa v. Shivappa Nagappa Aparaj and others [AIR 1995 Karnataka 238], wherein it was held that a suit for injunction is maintainable in a case wherein the plaintiff is in possession of the property and where it cannot be said that he has obtained possession by fraud just prior to the suit.

¶647

In Kunju Kesavan v. M.M.Philip and others

¶648

[AIR 1964 SC 164], a three Judge Bench of the Apex Court has held in paragraph 17 that-

¶649

R.S.A. Nos. 396 & 399 of 2010

¶650

-: 108 :-

¶651

"We do not think that the plaintiff in the case was taken by surprise. The notification must have been filed with the written statement, because there is nothing to show that it was tendered subsequently after obtaining the orders of the court. The plaintiff was also cross-examined with respect to the address of Bhagavathi Valli and the only witness examined on the side of the defendant deposed about the notification and was not cross-examined on this point. The plaintiff did not seek the permission of the court to lead evidence on this point. Nor did he object to the reception of this evidence. Even before the District Judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli was exempted or not. The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate the decision."

¶652

R.S.A. Nos. 396 & 399 of 2010

¶653

-: 109 :-

¶654

121. In Girdharsingh and another v. Gokul and

¶655

others [AIR 1976 Rajasthan 10], it was held -

¶656

"Mere omission to frame issues is not necessarily fatal to the trial of the suit unless such omission has affected the disposal of the case on merits.

¶657

In the instance case tenants have filed the suit alleging that they have been irrigating their field from the well of the landlord. The parties went to trial fully knowing the rival case and led all evidence in support of their contentions. Held in the circumstances that it could not be said that the absence of the issue was fatal to the case or that there was such mistrial which vitiated the entire proceedings."

¶658

In M.Kallapa Setty v. M.V.Lakshminarayana Rao [AIR 1972 SC 2299], it was held in paragraph 5-

¶659

"The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever

¶660

R.S.A. Nos. 396 & 399 of 2010

¶661

-: 110 :-

¶662

since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily."

¶663

The attention of this Court has been invited to the evidence tendered by the parties. PW1 has clearly admitted that after 1983, there was no occasion for his father and the first respondent to jointly possess any of the properties. He has admitted that his father and the first respondent were separately possessing and enjoying their respective properties after 1983. That itself is sufficient to conclude that the parties were in separate possession of their respective properties after the execution of Ext.B1.

¶664

PW2 is the first defendant P.T. Samuel. According to him, presently 24½ cents of property is lying separately demarcated; but earlier there was no such

¶665

R.S.A. Nos. 396 & 399 of 2010

¶666

-: 111 :-

¶667

demarcation. He admits that when his son purchased the property through Ext.B2, the said 24½ cents of property was not separately demarcated; whereas all the properties were lying contiguously. He has clearly admitted that the property lying at the south to the property purchased through Ext.B2, belongs to R1. Therefore, he has clearly admitted the possession of the property lying south to the property covered by Ext.B2 is one with R1. Further, he has clearly admitted that the property lying at the western side of the property of R1, belongs to the husband of his sister namely Kizhekkedath George. The property lying at the western side of Pullad property is the property of Kizhekkedath George. That itself is sufficient to conclude that R1 is in possession of the plaint schedule property in O.S.No.545/2002 extending up to the property of Kizhekkedath George, from the eastern road. His further admissions clearly show that when he could see the property, it was lying as a single plot belongs to R1, which

¶668

R.S.A. Nos. 396 & 399 of 2010

¶669

-: 112 :-

¶670

extends from the property of Kizhekkedath George at the western side to Kumbanad - Pullad road at the east. Therefore, it is evident that the said property was lying as a single plot and the same was in the possession and enjoyment of R1.

¶671

PW3 was the Commissioner appointed by the trial court, who prepared Exts.C1, C1(a), C2 and C2(a). In Ext.C2(a) sketch, PW3 has specifically noted the six feet width strip of land situated at the southern side of the building in the Pullad property. PW3 has clearly deposed that he could see the plaint schedule property in O.S.No.545/2000 as a separate compact plot. In

¶672

re-examination, he has deposed that he could not see the

¶673

17 cents of property lying as a separate plot.

¶674

DW3 is the sister of the appellants. She has clearly supported the case of the respondents. According to her, the right of R1 over Santhipuram junction property was given by R1 to Sreedhara Panicker in exchange for 17 cents

¶675

R.S.A. Nos. 396 & 399 of 2010

¶676

-: 113 :-

¶677

from the Pullad property. According to her, her mother was residing in the building situated in the Santhipuram junction property, after the execution of Ext.B1. She has clearly admitted that the appellants had agreed to such an exchange effected by their father, when their opinion was sought for. According to her, her father had never gone to Pullad property for carrying out any cultivation after 1983; whereas the said property was being possessed and enjoyed exclusively by R1 after 1983.

¶678

In the light of the evidence available in the suit and documents mentioned above, it can be clearly seen that the plaint schedule property in O.S.No.545/2002 is being possessed and enjoyed by the respondents. In the light of the clear admissions of PW1, any adjudication over the title of the respondents over the said property does not arise as an issue at all. Such an issue need not be adjudicated for the purpose of finding the possession of the respondents.

¶679

R.S.A. Nos. 396 & 399 of 2010

¶680

-: 114 :-

¶681

The next point argued by the learned Senior Counsel for the appellants is that a decree of perpetual injunction cannot be granted, however strong be the claim, in respect of a property, which is not identified. The crux of the argument is that the plaint schedule property in O.S. No.545/2002 is not identifiable and, therefore, in the absence of a survey plan appended with the Commissioner's report, a decree of perpetual injunction cannot be granted. Ext.C2(a) is the sketch prepared by the learned Advocate Commissioner. It is true that measurements are not shown in Ext.C2(a). At the same time, all the structures in the property have been clearly shown in Ext.C2(a) sketch. The question to be decided in this particular case is whether the plaint schedule property in O.S. No.545/2002 is identifiable without a survey plan.

¶682

It has clearly come out from evidence that the 17 cents of property claimed by the appellants in O.S. No.538/2001 is not lying separately demarcated, and that

¶683

R.S.A. Nos. 396 & 399 of 2010

¶684

-: 115 :-

¶685

the said portion being claimed by the appellants is also lying contiguously with the remaining portions of the Pullad property. Through Ext.B1, Sreedhara Panicker and the 1^st respondent had decided to set apart a strip of land having a width of 6 feet extending from the eastern extremity of the Pullad property, to its western extremity, just behind the two storied line building situated in the property, for the preservation and use of the building. The fact that a pukka two storied building is situated at the northern extremity of the property, at the southern side of Thiruvalla – Kozhenchery public road, is admitted. The said building extends from east to west at the northern extremity of the Pullad property. Through Ext.B1, a strip of land having a width of 6 feet is set apart from the southern wall of the said building, as aforesaid. The said strip of land is extending from the eastern boundary to the western boundary. They had calculated the extent of the land in which the said building is situated, by including the said strip of land having

¶686

R.S.A. Nos. 396 & 399 of 2010

¶687

-: 116 :-

¶688

6 feet width, as 15 cents from the northern portion of 49 cents of Pullad property. Therefore, the remaining extent of Pullad property, situated at the southern side of the said 6 feet width strip of land, is having an extent of 34 cents, which is the plaint schedule property in O.S. No.545/2002.

¶689

The evidence in the case clearly shows that the said plot of property having an extent of 34 cents is clearly identifiable. When the existence of the building is admitted and especially when the strip of land having the width of 6 feet situated behind the building at its southern side extending east to west is also admitted, the property lying south to the said strip of land is clearly identifiable. Admittedly, the said property has its western, eastern and southern boundaries also. The northern boundary is the aforesaid strip of land having a width of 6 feet situated behind the building at its southern side extending east to west. Any survey is not required for identifying such a property. In case of any trespass into any further portion of

¶690

R.S.A. Nos. 396 & 399 of 2010

¶691

-: 117 :-

¶692

the property lying at the southern side of the said strip of land, it is easily discernible and identifiable. Apart from that, there is no dispute with regard to the clear-cut boundaries of

¶693

the property at its western, southern and eastern side. Therefore, there is no merit in the contention that the plaint schedule property is not identifiable.

¶694

The learned Senior Counsel for the respondents has forwarded an argument that these Second Appeals are not maintainable as it do not involve any substantial question of law and not even any question of law. Learned Senior Counsel for the appellants has invited the attention of

¶695

this Court to the decision in Secretary of State v. G.Krishna Rao [AIR 1945 PC 165] , wherein it was held that:

¶696

"What has to be decided is the the nature of the respondent's title, which in their Lordship's opinion involves a question of law. There is also the question as to whether the draft cowle upon which, as already observed, both the lower Courts

¶697

R.S.A. Nos. 396 & 399 of 2010

¶698

-: 118 :-

¶699

largely based their judgments constituted any evidence of the conditions on which the original grant was made, and that again is a matter of law. Their Lordships have no doubt that the High Court had jurisdiction to entertain the appeal.”

¶700

In Sir Chunilal V. Mehta and sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. [AIR 1962 SC 1314], it was held in paragraph 2 that -

¶701

"It is not disputed before us that the question raised by the appellant in the appeal is one of law because what the appellant is challenging is the interpretation placed upon certain clauses of the managing agency agreement which are the foundation of the claim in suit. Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law."

¶702

In this particular case, serious questions relating to the interpretation and construction of various recitals in Ext.A1 had to be made to find the validity or otherwise of those recitals. Therefore, when such an interpretation was

¶703

R.S.A. Nos. 396 & 399 of 2010

¶704

-: 119 :-

¶705

necessitated, it could not be said that these Second Appeals do not involve any substantial question of law.

¶706

Learned Senior Counsel for the appellants has further invited the attention of this Court to the decision in Kashmir Singh v. Harnam Singh and another [AIR 2008 SC 1749] , wherein it was held in paragraph 16 that -

¶707

"An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law."

¶708

It has also been held in Haryana State and

¶709

another v. Gram Panchayat Village Kalehri [2016 SAR (Civil) 801] in paragraph 15 -

¶710

"As a matter of fact, having regard to the nature of controversy and keeping in view the issues involved, such as the issue regarding

¶711

R.S.A. Nos. 396 & 399 of 2010

¶712

-: 120 :-

¶713

ownership rights coupled with the issue regarding proper interpretation of documents (exhibits) to prove the ownership rights over the suit land, we are of the view that these issues do constitute substantial questions law, viz., whether the Courts below were justified in properly interpreting the documents/exhibits relied upon by the parties for determining the ownership rights over the suit land? In other words, we are of the view that where the Court is required to properly interpret the nature of the documents, it does not involve any issue of fact as such but it only involves legal issue based on admitted documents. It is, therefore, obligatory upon the High Court to decide the legality and correctness of such findings as to which party's documents are to be preferred for conferring title over the suit land."

¶714

From the discussions made above, it has clearly come out that substantial questions of law have been emerged from these two Second Appeals and, therefore, it cannot be said that these Second Appeals are not maintainable under Section 100 of the Code of Civil Procedure, 1908.

¶715

R.S.A. Nos. 396 & 399 of 2010

¶716

-: 121 :-

¶717

From the discussions made above, it has clearly come out that there is absolutely nothing to interfere with the concurrent findings entered by the trial court and the lower appellate court. Therefore, these Second Appeals fail and are only to be dismissed, and I do so.

¶718

In the result, these Regular Second Appeals are dismissed. In the nature of these appeals, the parties are directed to bear their respective costs. All pending Interlocutory Applications in these Regular Second Appeals are closed.

¶719

Sd/- B. KEMAL PASHA, JUDGE.

¶720

ul/aks/-

¶721

[ true copy]

¶722

P.S. to Judge.

Radhakrishnan v. P.K.Gopalakrishna Panicker

Case brief

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Radhakrishnan v. P.K.Gopalakrishna Panicker

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