K. Valli v. Ramakrishnan & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 7TH DAY OF APRIL 2014/17TH CHAITHRA, 1936** ## **RSA.No. 686 of 2011 ( )** **-----------------------AGAINST THE JUDGMENT IN AS 44/2004 of ADDITIONAL DISTRICT COURT (ADHOC)-II, MANJERI DATED 17-02-2011 AGAINST THE JUDGMENT IN OS 103/1997 of MUNISIFF- MAGISTRATE, PERINTHALMANNA DATED 30-01-2004** ## **APPELLANT(S)/IST RESPONDENT/PLAINTIFF:** **------------------------------------------------------------------------------------** ## **K. VALLI, W/O.LATE KRISHNAN, CHANDANAPARAMBIL VEEDU, VADAKKUMPURAM P.O., VADAKKUMPURAM AMSOM DESOM, TIRUR TALUK.** **BY ADVS.SRI.T. KRISHNAN UNNI (SENIOR) SRI.SAJU.S.A** **SRI.K.C.KIRAN** ## **RESPONDENT(S)/APPELLANT & RESPONDENTS 3 TO 13/DEFENDANTS 3 TO 14:** - **------------------------------------------------------------------------------------------------------------------** ## **1. RAMAKRISHNAN,** **S/O.KALATHUMPADIKKAL DECEASED KRISHNAN KOLATHUR AMSOM DESOM, MALAPPURAM DISTRICT-679338.** **2. KUNCHUNNI, S/O.LATE KRISHNAN, KALATHUMPADIKKAL, KOLATHUR AMSOM DESOM MALAPPURAM DISTRICT-679338.** ## **3. KUNHI, W/O.KANDA,** - **KOTTAYILE THODI VEEDU, RAYIRANALLUR AMSOM NEDUNGOTTUR DESOM, PALAKKAD DISTRICT-679308.** **4. DEVAKI, W/O.CHAMI, KALLETHODI, VILAYUR P.O., VILAYUR AMSOM DESOM, OTTAPALAM TALUK -679309.** - **5. JANAKI, W/O.LATE PANGAN, KOLATHUR AMSOM DESOM, MALAPPURAM DISTRICT-679338.(DIED)** ## **6. SANTHAKUMARI, W/O.VASU,** - **KOLATHUR AMSOM DESOM, MALAPPURAM DISTRICT-679338.** **7. SOBHANA, D/O.LATE PANGAN,** ## **KOLATHUR AMSOM DESOM, MALAPPURAM DISTRICT-679338.** **8. SETHUMADHAVAN, S/O.LATE PANGAN, KOLATHUR AMSOM DESOM, MALAPPURAM DISTRICT-679338.** ## **RSA.No. 686 of 2011 ( )** ## **9. PATHIRAMKUTTATH PUSHPA,** **D/O.LATE PANGAN, MOORKANAD AMSOM MALAPPURAM DISTRICT-679338.** **10. JAYASREE, D/O.KRISHNANKUTTY, PULLARSI HOUSE, P.O.VILAYUR, VILAYUR AMSOM DESOM OTTAPALAM TALUK-679309.** **11. ANJALI, 16 YEARS (MINOR), D/O.JAYASREE, PULLARSI HOUSE, P.O.VILAYUR VILAYUR AMSOM DESOM, OTTAPALAM TALUK-679309.** ## **12. DHILEEP KUMAR,** ## **14 YEARS (MINOR)** **(MINORS REPRESENTED BY GUARDIAN JAYASREE).** *** (IT IS RECORDED THAT THE 5TH RESPONDENT DIED AND R6, R7 AND R8 ARE THE LEGAL REPRESENTATIVES AS PER ORDER DATED 23.03.2013 VIDE MEMO DATED 13.03.2013 CF 2093/2013 )** **R1 BY ADV. SRI.R.RAJESH KORMATH R2 BY ADV. SRI.E.NARAYANAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - ## R.S.A. No. 686 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 07[th] day of April, 2014 ## **J U D G M E N T** Aggrieved by the decree of the appellate court, the plaintiff in O.S.No. 103/1997 of the Munsiff-Magistrate, Perinthalmanna, has come up in appeal. 2. The controversy in this case is between the members of a family. It relates to the interpretation of two clauses in Ext.A3 gift deed dated 10.03.1972. A settlement deed was executed by Krishnan in favour of the 5[th] defendant who is one of his sons. 3. For the purpose of this case, it is necessary to refer to certain essential facts. One Nambu had two children, namely, Pangan and Cheratti. Pangan had two children namely Velu and Krishnan. Velu embraced Muslim religion. Krishnan died in 1978. Krishnan had seven children. They are plaintiffs and defendants 1 to 6. Velu assigned his rights over the properties involved in this case by virtue of Ext.B1, dated **R.S.A. No. 686 of 2011** **-2-** 07.01.1938 in favour of Krishnan. Cheratti, the daughter of Nambu also had assigned her rights over the property in favour of Krishnan. It is now admitted by both sides that Cheratti did not have any manner of right to be assigned to anybody. Krishnan, in addition to his own share, had the share conveyed to him by the first defendant and the first defendant and Krishnan also had an independent right like Velu in the property. Therefore, as regards item No. 1, Krishnan had three rights:- (1) his own right, (2) the rights of Velu and (3) the assignment by way of Ext.A2 dated 28.02.1972 by the first defendant in favour of Krishnan. It is these three rights which are the subject matter of the appeal. 4. By Ext.A3, dated 10.03.1972, Krishnan is alleged to have assigned his rights over the property in favour of the 5[th] defendant. It is the nature of right that was assigned in favour of the 5[th] defendant, that is the subject matter of this appeal. ## **R.S.A. No. 686 of 2011** **-3-** 5. While the plaintiff would contend that all that is assigned under Ext.A3 are the rights obtained by Krishnan as his own right and also that from Pangan, the first defendant but the right obtained from Velu that is by Ext.B1 remains unaffected by Ext.A3, the defendants would say that whatever rights Krishnan had, whether he obtained it under Ext.B1 or Ext.A2 or his independent right, the entire bundle of rights were assigned as per Ext.A3 to the 5[th] defendant. 6. The trial court did not seriously advert to this issue and decreed the suit. The 5[th] defendant who was aggrieved by the decree carried the matter in appeal as A.S.No.44/2004. The lower appellate court, on interpretation of Ext.A3, came to the conclusion that a reading of the document left one in no doubt that by virtue of the relevant clause in Ext.A3, the entire bundle of rights which Krishnan had over the property were assigned in favour of the 5[th] defendant and no right was left with him. Therefore, the ## **R.S.A. No. 686 of 2011** **-4-** contention raised by the 5[th] defendant was upheld by the lower appellate court and appropriate modification was made in the decree. It is the above finding of the lower appellate court that is assailed in this appeal. 7. Notice was issued on the following substantial questions of law formulated in the memorandum of appeal. “a) Is the court below justified in finding that by virtue of Ext.B4 Krishnan has transferred all his rights in the property in favour of the 5[th] defendant on the basis of the recitals in Ext.B4 document? b) Is not the calculation of shares made by the trial court proper and correct?” 8. The learned counsel appearing for the appellant contended that the lower appellate court was not justified in coming to the conclusion that the entire bundle of rights Krishnan had over the property were assigned in favour of the 5[th] defendant as per Ext.A3. The document specifically refers to the rights obtained by him as a heir as well as the right obtained by him from Pangan, the first defendant and ## **R.S.A. No. 686 of 2011** **-5-** recitals are clear to the effect that only those two rights were intended to be assigned in favour of the 5[th] defendant. The right obtained by Krishnan from Velu as per Ext.B1 document remained with him which was to be inherited by his children. The right so obtained from Velu remained unaffected by Ext.A3. 9. The learned counsel appearing for the appellant relying on the decision reported in **Ramkishorelal** v. **Kamalnarayan** [AIR 1963 SC 890] contended that the document has to be read a whole without truncating any portion thereof, and true intention has to be gathered. Relying on **Kaivelikkal Ambunhi (Dead) By LRs. And Others** v. **H. Ganesh Bhandary** [AIR 1995 SC 2491] and **Prasanth** v. **Kalliani** [2007 (2) KLT 992], the learned counsel went on to contend that the rule of interpretation with respect to a Will and other documents differ. In the case of a Will, it is well settled that the latter portion prevails over the former portion in case of inconsistency, while in the **R.S.A. No. 686 of 2011** **-6-** case of sale deed, mortgage deed etc., the position is that former clause prevails. The said principles are to be applied in the case on hand. According to the learned counsel, it can be seen from Ext.A3 that specific mention is made of the two rights i.e., as a legal heir and as the right obtained from Pangan as per Ext.A2 alone were sought to be conveyed to the 5[th] defendant. The lower appellate court therefore fell into gross error in coming to the conclusion that even the right which Krishnan obtained as a result of Ext.B1 assignment by Velu is also taken in by Ext.A3. The learned counsel went on to contend that the said finding cannot be sustainable in law. 10. The learned counsel appearing for the respondents on the other hand contended that as rightly pointed out by the learned counsel for the appellant, the document has to be read as a whole and the intention of the parties have to be gathered from terms of the document. One is not left to imagine as to what the intention of the parties is when the **R.S.A. No. 686 of 2011** **-7-** words in the document are clear and unambiguous. The learned counsel also pointed out that there can be no doubt that the document has to be read as a whole and if done so, as rightly found by the lower appellate court, by virtue of Ext.A3 document, Krishnan did not retain any vestige of right and assigned the entire bundle of rights which he had over the property concerned in favour of his son, the 5[th] defendant. Merely because, in the earlier portion, only two transactions are mentioned does not mean that when in the latter portion, it is made abundantly clear that the entire bundle of rights over the property were assigned without reserving any right to himself, the latter clause in Ext.A2 has to be given a restricted meaning. In support of his contention, the learned counsel relied on the decision reported in **P.S. Ranakrishna Reddy** v. **M.K. Bhagyalakshmi and another** [2007 10 SCC 231] and **Narayani Amma** v. **Narayana Namboodiri** [1984 KLT SN 80]. **R.S.A. No. 686 of 2011** **-8-** 11. It could thus be seen that the only issue that arises for consideration is what are the rights assigned by Ext.A3, the conveyance deed executed by Krishnan in favour of the 5[th] defendant. The two clauses in Ext. A3 read as follows: “1971 W 1993_ ¦¢ ÈOùÞÏß çÎM¿ß ÉBX çÉøßW ²ÝßÎáùß ÕÞBâµÏᢠ¥ÄßKáçÖ×¢ çÎM¿ß ¥ÕµÞÖÕᢠÉBÈáU ³Ùøß ¥ÕµÞÖÕá¢åµâ¿ß ¿ßÏÞX çÉøßW çÎM¿ßå¦MàØßW 1972 W 583_¦¢ ÈOùÞÏß µâGÕµÞÖ²ÝßÎáùßåÄKÕÝßAí §çMÞZ ®ÈßAᢠÄÈßAᢠÎxᢵâ¿ß µâGÕµÞÖÎÞÏÄᢠ¥ÈáÍÕ¢ ÉáøµáÝßAâùºÎÏÕµÞÖÎÞÏß µâGÞÏß èµÕÖ¢ ” æÕºîáÕøáKÄá¢....... ## and the latter clause is “®ÈßAáU µâGÕµÞÖæÄVºî ÈßçÛ×¢ ÄàVKá çÉÞµÏᢠæºÏñßøßæAæµÞI ÉGßµÏßæÜ ØíÅÜ¢ ¥ÈáÍÕ¢ ÉáøµáÝßAâùºÎÏÕµÞÖÎÞÏß ÄÞX ÎxÕµÞÖßµ{áÎÞÏß çÏÞ¼ßçºîÞ Îxá ÕßÇJßçÜÞ èµÕÖ¢æÕºî Äæa çÌÞÇcdɵÞø¢ ®Lí dÉÕVJßAáKÄßÈᢠ§Ká ÎáÄWAí ®ÈßAÞæÄÞøÕµÞÖÕᢠæÄVºîÏᢠçºÞÆcÕáÎßÜï.åÉGßµÏßæÜ ØíÅÜJßçzW ®ÈßAáU ³Ùøß ¥ÕµÞÖJßçzW ¾ÞX ÏæÄÞøá µá¿ßA¿ÕᢠÕøáJßÕºîßGßæÜïKí.......................” ## **R.S.A. No. 686 of 2011** **-9-** 12. According to the learned counsel, the above are the two conflict clauses in Ext.A3 document. While the learned counsel appearing for the appellant would contend that the former clause governs the later clause whereby, it is clear that what was intended to be assigned to the 5[th] defendant as per Ext.A3 was only the rights of Krishnan which he had as a legal heir and the right of Pangan which he obtained under Ext.A2, the learned counsel appearing for the respondents on the other hand contended that the entire bundle of rights which Krishan entered over the property concerned, has been assigned. 13. It is unnecessary to refer to the decisions relied on by both sides with respect to their respective contentions for the simple reason that the principles are too well settled and cannot be disputed. It is trite that a document has to be read as a whole and the intention of the parties has to be gathered. In doing so, subsequent conduct will also be a relevant factor. PW1, the plaintiff in the case, pleads total ## **R.S.A. No. 686 of 2011** **-10-** ignorance about the nature of right assigned as per Ext.A3 in favour of the 5[th] defendant. He seems to have no idea about the transaction at all. 14. Coming to the two clauses under Ext.A3, while it is true that in the earlier clause which is referred to above, the two rights namely the right which Krishnan inherently had and the right which he obtained from Pangan as a legal heir alone have been referred to, in the latter clause, the entire bundle of rights which he had over the property is sought to be assigned. Even though, the right of Velu is not specifically mentioned in the former clause, the latter clause clarifies the position by saying that whatever rights he had over the property without any exception, has been assigned in favour of the 5[th] defendant. No vestige of right is left with him as would be clear from the portion referred to above. 15. The mere fact that the right of Velu is not specifically referred in the former clause does not dilute the ## **R.S.A. No. 686 of 2011** **-11-** rigour of the latter clause. There is also no evidence in the case on hand to show that subsequent to the execution of Ext.A3 document, Krishnan had exercised any manner of right over the property to show that he had retained any vestige of right. 16. The lower appellate court was therefore justified in coming to the conclusion that after execution of Ext.A3 document in favour of the 5[th] defendant, Krishnan retained no rights whatsoever over the property and whatever right Krishnan had devolved on the 5[th] defendant. If that be so, no ground are made out to interfere with the findings of the courts below. This appeal is without merits and is accordingly dismissed confirming the judgment and decree of the lower appellate court. **P.BHAVADASAN JUDGE** ds