T. T. Joseph and Valsamma Joseph v. Valsamma Varghese and Jino Varghese

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 4[TH] DAY OF FEBRUARY 2022 / 15TH MAGHA, 1943 RSA NO. 777 OF 2020 ``` ``` AGAINST THE JUDGMENT AND DECREE IN AS 97/2019 OF DISTRICT ``` ## **`COURT,PATHANAMTHITTA`** ``` AGAINST THE JUDGMENT AND DECREE DATED 24.08.2019 IN OS 8/2010 OF SUB COURT, THIRUVALLA ``` ## **`APPELLANTS/RESPONDENTS 1 AND 2/PLAINTIFFS:`** ``` 1T.T. JOSEPH AGED 68 YEARS S/O. LATE THOMAS THOMAS, THUNDIYIL HOUSE, EZHUMATTOOR MURI, EZHUMATTOOR VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA, PIN 689 586 2VALSAMMA JOSEPH, AGED 68 YEARS W/O. T. T JOSEPH, THUNDIYIL HOUSE, EZHUMATTOOR MURI, EZHUMATTOOR VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA, PIN 689 586 BY ADV SRI.C.A.RAJEEV ``` ## **`RESPONDENT/S:`** ``` 1VALSAMMA VARGHESE AGED 60 YEARS W/O. LATE VARGHESE, THUNDIYIL HOUSE, EZHUMATTOOR MURI, EZHUMATTOOR VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA, PIN 689 586 2JINO VARGHESE, AGED 40 YEARS S/O. LATE VARGHESE, THUNDIYIL HOUSE, EZHUMATTOOR MURI, EZHUMATTOOR VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA, PIN 689 586 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER V.D THOMAS, AGED 74, S/O. DEVASIA, MAVELIL EZHUMATTOOR MURI, EZHUMATTOOR VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA PIN 689 586 ``` ``` RSA NO. 777 OF 2020 ``` ..2.. ``` 3. THOMAS THOMAS, AGED 75, S/O LATE THOMAS THOMAS, NERAKATHU THUNDIYIL HOUSE, EZHUMATTOOR MURI, EZHUMATTOOR VILLAGE, MALAPPALLY TALUK, PATHANAMTHITTA, PIN – 689 586 ``` ``` 4JINTO VARGHESE, AGED 36, S/O LATE VARGHESE, THUNDIYIL HOUSE, EZHUMATTOOR MURI, EZHUMATTOOR VILLAGE, MALAPPALLY TALUK, PATHANAMTHITTA PIN - 689 586 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 777 OF 2020 ``` **==> picture [20 x 9] intentionally omitted <==** **==> picture [49 x 12] intentionally omitted <==** ## **JUDGMENT** This appeal is directed against the judgment and decree dated 26.08.2020 passed by the District Court, Pathanamthitta in A.S.No.97/2019. The appeal suit arose from the judgment and decree dated 24.08.2019 passed by the Subordinate Judge’s Court, Thiruvalla in O.S.No.8/2010. 2. The plaintiffs in the Original Suit are the appellants. The defendants are the respondents. 3. Defendant No.2 in O.S.No.8/2010 filed O.S.No.14/2012 against the appellants/plaintiffs seeking prohibitory injunction in respect of the plaint schedule properties. Both the suits were jointly tried by the Trial Court. O.S.No.8/2010 was decreed in favour of the appellants/plaintiffs and O.S.No.14/2012 was dismissed. Defendants 2 and 3 in O.S.No.8/2010 challenged the judgment and decree of the Trial Court in A.S.No.97/2019. The plaintiff and defendant No. 2 in ``` RSA NO. 777 OF 2020 ``` **==> picture [20 x 9] intentionally omitted <==** O.S.No.14/2012 challenged the common judgment and decree in A.S.No.98/2019. The First Appellate Court jointly considered both the appeals and allowed A.S.No.97/2019 and dismissed A.S.No.98/2019. 4. Material facts relevant for the adjudication of this appeal are as follows:- 4.1 Smt. Thresiamma @ Mariamma, the mother of plaintiff No.1, on 08.10.1997 executed a settlement deed (Ext.A1) in respect of 23.32 Ares of land. In the earlier part of the settlement deed, the settlor recited that she gifted the property scheduled in the deed to plaintiff No.1. Later, in Ext.A1, the settlor retained right over 2.50 Ares of property out of the above referred 23.32 Ares. The settlor had reserved her right during her life time not only to enjoy the entire income from the property but also the right to alienate it. The settlor bequeathed item No.2 property (1.50 Ares) in favour of defendant No.3 as per Ext.A6 Will and sold 1 Are of land as per Ext.A5 sale deed to defendant No.3. ``` RSA NO. 777 OF 2020 ``` **==> picture [20 x 8] intentionally omitted <==** 4.2 The appellants/plaintiffs claimed that they had acquired title over 23 Ares and 32 square metres of land comprised in Re-survey Nos. 235/3/2 and 111/7 of Ezhumattoor Village by virtue of settlement deed No.1607/1997 dated 08.10.1997 of the Sub Registrar’s Office, Vennikkulam (Ext.A1). According to the plaintiffs, the defendants removed the boundaries of the plaint schedule property and attempted to encroach upon it. Accordingly, the appellants/plaintiffs instituted a suit for declaration, fixation of boundary, permanent prohibitory injunction etc. in respect of the plaint schedule property. 4.3. The respondents/defendants resisted the claim of the appellants contending that the appellants have not acquired right over the plaint item Nos. 1 and 2 properties. According to the respondents, the settlor Smt. Thresiamma @ Mariamma had reserved the right to alienate 2.50 Ares of land as per Ext.A1 settlement deed. Smt. Thresiamma @ Mariamma had not divested herself ``` RSA NO. 777 OF 2020 ``` **==> picture [20 x 9] intentionally omitted <==** of her entire 23.32 Ares of land in the name of her son T.T. Joseph, the appellant No.1. She had retained 2.50 Ares of land as per Ext.A1. Respondent No.2/defendant No.3 acquired right over the property as per Sale deed No. 1522/1999 dated 07.09.1999 (Ext A5) and Will No. 103/1999 dated 07.09.1999 (Ext A6). 5. The parties went to trial. PWs 1 and 2 were examined, and Exts.A1 to A7 were marked on the side of the plaintiffs. DWs 1 to 3 were examined and Ext. B1 was marked on the side of the defendants. Exts. C1(a) to C1 (c) were marked as Court Exhibits. 6. The Trial Court held that plaintiff No.1 has title and possession over the plaint schedule item No.1 and plaintiff No.2 has title and possession over plaint schedule item No.2. The Trial Court further held that Ext.B1, Will No.103/1999 dated 07.09.1999 and Ext. A5 Sale deed No.1522/1999 of Sub Registrar’s Office Malappally dated 07.09.1999 are not binding on the appellants/plaintiffs. The First Appellate Court modified ``` RSA NO. 777 OF 2020 ``` **==> picture [20 x 8] intentionally omitted <==** the decree and declared that the appellants/plaintiffs in O.S.No.8/2010, Shri. T.T. Joseph and Smt. Valsamma Joseph, have acquired right over only 20.82 Ares of the property described in Ext.A1 settlement deed. 7. Plaintiffs 1 and 2 in O.S.No.8/2010 are in appeal before this Court invoking Section 100 of the Code of Civil Procedure. On 11.11.2020, this Court admitted the Regular Second Appeal on the substantial questions of law 1 to 4 formulated in the memorandum of appeal. 8. After hearing the learned counsel for the appellants, this Court reformulated the substantial questions of law as follows:- 1 When, in Ext. A1 settlement deed, the recitals regarding 23.32 Ares, in the beginning show that the entire extent had been settled in favour of the first appellant, can the settlor transfer 02.50 Ares of land out of 23.32 Ares to the second respondent on the strength of the recitals in the subsequent part of the settlement ``` RSA NO. 777 OF 2020 ``` **==> picture [20 x 9] intentionally omitted <==** deed? 2. Whether the recitals in Ext.A1 settlement deed to the effect that the settlor Smt. Thresiamma @ Mariamma had retained 2.50 Ares of land reserving her right to alienate the same amount to a condition or a limitation restraining alienation as provided under Section 10 of the Transfer of Property Act. Is not the recitals to the above effect a restriction repugnant to the interest created in favour of the settlee as provided under Section 11 of the Transfer of Property Act? 9. Heard Shri. C.A. Rajeev the learned counsel for the appellants. 10. The dispute in this case centres around the interpretation of Ext.A1 settlement deed executed by Smt. Thresiamma @ Mariamma, the deceased mother of appellant No.1/plaintiff No.1. 11. A document has to be construed as a whole. ``` RSA NO. 777 OF 2020 ``` ..9.. Real intention of the parties has to be gathered, not merely from what ex facie is stated as the description of the property in the schedule, but from the totality of the recitals in the document. 12. In **Halsbury's Laws of England** (5[th] edition, Volume-32, para. 365) on the object of interpretation, the learned author comments thus:- **“Object of interpretation.** It has been said that the object of all interpretation of a written instrument is to discover the real intention of the author, the written declaration of whose mind it is always considered to be, and that consequently, the construction must be as near to the minds and apparent intention of the parties as is possible, and as the law will permit. However, the law is not concerned with subjective intentions. All that matters is the objective meaning of the words which the author of those words has used. The law is concerned with what the user of the words would objectively have been understood to mean.” 13. On the principles of construction of deeds, the learned author in **Halsbury's Laws of England** (5[th] edition, Volume-32, para. 364) writes thus:- “(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (2) xxxx ``` RSA NO. 777 OF 2020 ``` ..10.. (3) xxxx (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax.” ## **[Emphasis added]** 14. In case of inconsistency or repugnancy, a particular description of the property conveyed usually controls a general description, unless a different intention is shown by the deed when construed or considered as a whole. [vide: **Jefferson v. Davis** [95 A 2d 617]. 15. Where there are inconsistent or repugnant recitals in a deed, the first does not necessarily control; and while different descriptions, or different parts of a description, should be reconciled, if possible, a description which best expresses the intentions of the parties, duly ascertained, will, as a general rule, prevail and the more certain description will control if it does not ``` RSA NO. 777 OF 2020 ``` ..11.. violate such intention. [vide: **Bentor v. Montogomery Lumber Co.,** [142 NE 229] 16. In **Ramkishorelal and another v.** **Kamalnarayan** [AIR 1963 SCC 890], a five Judges Bench of the Apex Court, on the principles of construction of instruments held thus: 12. “The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the wor ds, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has to a trained conveyancer a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. 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 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 ``` RSA NO. 777 OF 2020 ``` ..12.. disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo. (1960) 3 SCR 604 at p. 611: (AIR 1960 SC 953 at p. 957)). It is clear, however, that an 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 beheld to be void.” ## **[Emphasis added]** 17. In **Narmadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker** [(1997) 2 SCC 255], the Apex Court held that a document has to be read harmoniously as a whole giving effect to all the clauses contained in the document which manifest the intention of persons who execute the document. 18. In **Kali Prasad Singh v. Ram Prasad Singh** [AIR 1974 SC 148], the Apex Court held that in case of ambiguity, the intention of the donor should be ascertained from the language of the document taken along with surrounding circumstances. 19. As per Ext. A1 settlement deed executed on 08.10.1997, Smt. Thresiamma @ Mariamma had dealt ``` RSA NO. 777 OF 2020 ``` **==> picture [26 x 9] intentionally omitted <==** ## with 23.32 Ares of land. The relevant recitals in Ext.A1 read thus:- “You are my third son. Out of love and affection, I have for you, I got this settlement deed executed in your favour, settling the properties described in the schedule hereunder. The possession of the property is handed over to you subject to the conditions hereinafter mentioned. I reserve my right during my life time to live according to my wishes in the building in the property. I hereby retain absolute right to alienate or to deal with in any other manner 2 Ares and 50 Square Metres of land on the east of the building, in the event, during my lifetime it becomes necessary to do so. If the above said 2 Ares and 50 Squares Metres of property remains unalienated after my life time you will have absolute right over it. “ 20. A reading of the recitals referred to above would necessarily indicate that the settlor, Smt. Thresiamma @ Mariamma, had retained her right to live in the house situated upon the property and had also retained the right during her lifetime to alienate or create any documents in respect of 2.50 Ares of land. In the first part of the document, it appears that the settlor had ``` RSA NO. 777 OF 2020 ``` **==> picture [26 x 9] intentionally omitted <==** recited to the effect that she had gifted the property described in the schedule of the deed, that is, 23.32 Ares of land, to the first appellant. But, later, in the deed, the settlor recited that she had retained the right with respect to 2.50 Ares of land. 21. Reading of the document [Ext.A1] harmoniously as a whole makes it clear that the settlor, an old lady, intended only to divest title in respect of 20.82 Ares of property [23.32 Ares - 2.50 Ares] to appellant No.1. The real intention of the settlor was to retain absolute right over 2.50 Ares of property with her. Constructing Ext.A1 as aforesaid would be near to the mind of the author of the document. The circumstances and background under which the settlor executed the document also fortify the afore construction as the meaning of the document is what the author using those words against the relevant background would reasonably have been understood to mean. 22. In **Rev. Fr. M.S. Poulose v. Varghese and** ``` RSA NO. 777 OF 2020 ``` ..15.. **others** [1995 Supp (2) SCC 294], the Apex Court considered a similar fact situation. In the above cited case, an old couple executed a deed dated 05.03.1966, by which they had given, in consideration of the affection and the faithful service rendered by the respondents therein, 70 cents of land to them. In the deed, for the rest of the land, it was recited thus:-’ “We reserve our right during our lifetime to live according to our wishes in the building described along with you and if need be we have full rights and liberty to appropriate the entire income and profits from the properties except those set apart in the name of the second named amongst you. In the event during our lifetime it becomes necessary to mortgage or alienate the schedule property the same should be effected by you jointly with us and with the consent of all of us.” 23. While considering the above recitals, the Apex Court held that, it indicated that the old couple, the executants, had jointly reserved the right during their lifetime not only to live in the building and enjoy the entire income from the properties, but also reserved the right to alienate or mortgage the properties. The Apex Court held that they had not divested themselves from ``` RSA NO. 777 OF 2020 ``` **==> picture [26 x 9] intentionally omitted <==** the title of the rest of the property completely, except 70 cents of land given to the respondents therein in absolute terms. 24. The learned counsel for the appellants relying on Sections 10 and 11 of the Transfer of Property Act,1882, submitted that the recitals regarding retention of 2.50 Ares of land in Ext.A1 by the settlor is a condition or a limitation restraining appellant No.1 from parting with his interest in the property and that the restrictions so imposed are repugnant to the interest created. I have carefully gone through the recitals in Ext.A1. I am unable to comprehend that the recital in Ext.A1 to the effect that the settlor had retained transferable rights over 2.50 Ares of land is a condition or a limitation as provided in Section 10 or a restriction repugnant to the interest created as provided in Section 11 of the Transfer of Property Act, 1882. The recitals in Ext.A1 make it absolutely clear that the settlor had only divested tittle to 20.82 Ares of the property described therein. In other ``` RSA NO. 777 OF 2020 ``` **==> picture [26 x 9] intentionally omitted <==** words, the settlor had not divested herself from the title to the rest of the property, that is 2.50 Ares of land. This is not a condition or limitation as provided in Section 10 of the Transfer of Property Act. As no interest was created absolutely in favour of appellant No.1 in respect of 2.50 Ares of land by the settlor the question of operation of Section 11 of the Act also does not arise. 25. The learned Counsel for the appellants relied on **Malayalandiyil Kayakool Edakozhi Subair & others v. Kayyalakkakath Kunhamina & others** [CDJ 2015 Ker HC 654] in support of his contention. In the said decision, this Court held that if what is obtained under a partition deed is absolute ownership, power of alienation must go along with it and any restraint of the power will be against public policy and will be deemed void in view of Section 10 of the Transfer of Property Act. The principles declared, in the above mentioned case, are not applicable to the facts of the instant case. 26. The First Appellate Court has carefully re- ``` RSA NO. 777 OF 2020 ``` **==> picture [26 x 9] intentionally omitted <==** appreciated the pleadings and evidence and recorded the finding that as per Ext.A1, the settlor Smt. Thresiamma @ Mariamma had retained right over 2.50 Ares of property. 27. The substantial questions of law are therefore answered against the appellants. The Regular Second Appeal lacks merits and is dismissed. 28. The parties are directed to bear their respective costs. Pending interlocutory applications, if any, stand closed. **Sd/K. BABU, JUDGE** kkj