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Pradeep Kumar Vs. Mahaveer Pershad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberC.C.C. Appeal No. 56 of 1993 and Cross Objections
Judge
Reported inAIR2003AP107; 2002(6)ALT360
ActsEvidence Act, 1872 - Sections 93, 94, 95, 96 and 97; Specific Relief Act, 1963 - Sections 34; Benami Transactions (Prohibition) Act, 1988 - Sections 4
AppellantPradeep Kumar
RespondentMahaveer Pershad and ors.
DispositionAppeal allowed
Excerpt:
(i) property - ambiguity in instrument - sections 93 to 97 of evidence act, 1872 - trust deed mention building and appurtenant land as part of trust property - plan attached to deed does not contain one portion of building - can such deed be interpreted to include whole property as trust property in view of ambiguity in plan - instrument become inoperative if there is any patent ambiguity - document does not necessarily become inoperative only because it contained an inaccurate description - document can be given effect if there is sufficient evidence to identify person or property after rejection of inaccurate description in document - plan attached to document does not form part of trust deed document to be given full effect - held, in circumstances property described in trust deed.....t.ch. surya rao, j. 1. the unsuccessful defendants 1 and 7 have filed this appeal against the judgment and decree dated 29-7-1993passed by the learned 1st additional judge, city civil court, hyderabad, in o.s. no. 754 of 1983. the plaintiff is the first respondent and the defendants 2 to 6 are the respondents 2 to 6 herein. 2. the suit o.s. no. 754 of 1983 was filed for declaration that the plaintiff is the owner of the suit schedule property, for recovery of possession thereof, for arrears of rent, and for profits. it was decreed declaring the right and title of the plaintiff; for consequential possession; and for mesne profits from 2-5-1982 onwards till the date of realisation, while denying the relief of recovery of arrears of rent. the plaintiff filed cross-objections as against that.....
Judgment:

T.Ch. Surya Rao, J.

1. The unsuccessful defendants 1 and 7 have filed this appeal against the judgment and decree dated 29-7-1993passed by the learned 1st Additional Judge, City Civil Court, Hyderabad, in O.S. No. 754 of 1983. The plaintiff is the first respondent and the defendants 2 to 6 are the respondents 2 to 6 herein.

2. The suit O.S. No. 754 of 1983 was filed for declaration that the plaintiff is the owner of the suit schedule property, for recovery of possession thereof, for arrears of rent, and for profits. It was decreed declaring the right and title of the plaintiff; for consequential possession; and for mesne profits from 2-5-1982 onwards till the date of realisation, while denying the relief of recovery of arrears of rent. The plaintiff filed cross-objections as against that part of the decree whereunder the relief for arrears of rent was denied.

3. The factual matrix may be set forth at the outset thus : The plaintiff claims that he is the owner of the northern portion of three storeyed building ad measuring 94 square yards within the premises bearing MC No. 5-8-110 situate at Nampally in Hyderabad, having purchased the same under a registered sale deed dated 27-2-1971 from one Sakinder Begum; and that the southern portion thereof belongs to his adoptive mother by name Triveni Bai wife of Madanlal. The said Madanlal was the President of the first defendant-Trust known as Triveni Bhavan Trust. The southern portion of the building was given in trust for establishing a 'Dharma Sala.' The Trust wanted to establish a hospital in the year 1979. Therefore, under an oral agreement of tenancy with effect from 1-10-1979 the President of the Trust obtained the plaintiff's portion i.e. northern portion of the suit building on a monthly rent of Rs. 1,000/-for the said purpose under the name and style of Triveni Madanlal Charitable Hospital in the whole of the building including the southern portion. Apart from the rent, it was agreed to bear and pay the electricity and water charges, and property tax. However, since the date of tenancy i.e. from 1-10-1979 the defendants committed defaultdespite the request of the plaintiff. When the rents had not been paid, the plaintiff got a notice of termination of tenancy dated 20-12-1981 issued to the defendants determining the tenancy with effect from 1-2-1982. The plaintiff, therefore, claimed rent for a period of three years towards arrears and the profits from 1-2-1982 till realisation. The plaintiff further claims that since the building was constructed in the year 1966, the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1961 do not apply.

4. The suit was resisted by the first defendant-Trust by filing a written statement and the defendants 2 to 7 being the trustees thereof adopted the same. It is averred inter alia in the written statement that the entire triple-storied building bearing MC No. 5-8-110 ad measuring 358 square yards including the open land was purchased by late Smt. Triveni Bai wife of Madanlal out of their own funds under two separate registered sale deeds of even date i.e. 27-2-197 1--one in the name of Triveni Bai and other in the name of minor plaintiff as a benamidar. The plaintiff being a minor by then had no financial capacity to purchase the suit property as claimed by him. Husband of the said Triveni Bai by name Madanlal purchased the vacant land which is part and parcel of the entire building bearing MC No. 5-8-110 under a registered sale deed dated 3-3-1971. Later, he sold that property in favour of his wife Triveni Bai under a registered sale deed dated 5-11-1971. Late Triveni Bai constructed mulgies in that premises. She expressed her intention to use the entire property for charitable purposes as well as to instal a temple. She installed two idols of Lord Siva and Lord Hanumanji after constructing the temple and made sankalpa. After her death, her husband-Madanlal, the plaintiff, and the daughter created a Trust and they executed a registered trust deed dated 13-8-1975 in favour of Triveni Bhavan Trust for the purpose of using the entire property for charitable purposes as well as for temple. To fulfil her real intention, the trustees have established a charitable hospital in the triple-storied building as well as in the first floor of the mulgies. which is being run till today. Thus, the entire premises bearing MC No. 5-8-110 including the southern and northern portions, mulgies, and open land weregiven in trust for establishing a temple, dharmasala and a charitable hospital. The defendants denied the tenancy as set up by the plaintiff and claimed that the plaintiff being one of the trustees and signatory to the trust deed could not claim any right, title and possession over the suit schedule property. The relationship of landlord and tenant has been denied, Thus, the defendants question the jurisdiction of the Civil Court for the recovery of the possession in view of the provisions of the Rent Control Act.

5. The plaintiff filed a rejoinder mentioning inter alia that although he was minor the suit property was purchased in his name and out of his own funds. The trust deed does not relate to the suit property and the plaintiff is the adopted son of Madanlal. It is his further case that as he is claiming arrears of rent also, the Civil Court continues to have jurisdiction to grant the composite reliefs of possession as well as profits.

6. On the above pleadings, the following issues have been framed at the time of the settlement of issues :

1) Whether the plaintiff is entitled for the possession of the suit property?

2) Whether the plaintiff is entitled for any rent, if so to what amount?

3) Whether the plaintiff is entitled to any future and past profits? If so, to what amount?

4) Whether the alleged trust is true? If so what will be its effect in this suit?

5) Whether this Court has no jurisdiction?

6) Whether the plaintiff is a benamidar?

7) To what relief?

The following additional issues were framed again;

1) Whether the plaintiff is the owner of the plaint schedule property or only a benamidar the real owner being Smt. Triveni Bai?

2) Whether the plaintiff is entitled to possession of the plaint scheduled property?

3) Whether the plaintiff is entitled to arrears of rent and mesne profits claimed in the suit?

4) Whether there is landlord and tenant relationship between the plaintiff and the defendants?

5) Whether the Court is having jurisdiction to entertain this suit?

6) To what relief?

Again additional issues were framed to the following effect :

1) Whether the plaintiff is entitled for declaration of his title to property and he is the owner?

2) Whether the Court-fee paid by the plaintiff is correct?

3) Whether the declaration of title sought by way of amendment is barred by limitation?

4) To what relief?

7. At the time of the trial, two witnesses were examined on the side of the plaintiff including himself and documents Exs. A. 1 to A.21 and A.1(a) and Exs. X.1 to X.5 through a witness were got marked. On the side of the defendants, two witnesses were examined and documents Exs. B.1 to B.18 were got marked.

8. After having considered the evidence on record, both oral and documentary, the trial court as aforesaid decreed the suit in favour of the plaintiff for declaration of title, for possession and for profits from 2-5-1982 onwards till realisation but the suit insofar as the arrears of rent is concerned was dismissed. The first defendant-Trust and the 7th defendant, as aforesaid, are assailing the said judgment and decree.

9. Sri G. Anjappa learned counsel appearing for the appellants seeks to contend that the plaintiff obviously being a minor at the time of the purchase could not have purchased the property; that he being the party to the trust deed cannot claim any right and title over the property and the suit schedule property is obviously a part and parcel of the trust property; that there has been no relationship of landlord and tenant between the plaintiff and the first defendant-trust and that even otherwise the Civil Court has no jurisdiction to entertain the suit. Finally, he contends that the relief of declaration of title is barred by limitation.

10. Sri T. Veerabhadrayya, learned counsel appearing for the first respondent-plaintiff contends that there has been ample evidence to prove that the plaintiff had the necessary resources to purchase the suit schedule property; that the plea of benamidar must fail inasmuch as there hasbeen inconsistency between the pleading and proof; that the suit is not barred by limitation and that the property has been let out lor the purpose of running a hospital and, therefore, the plaintiff is entitled to the profits, both past and future. Finally, he contends that the suit being a comprehensive suit for recovery of possession as well as profits and for declaration of title, even if a part of the relief claimed in the suit is out of the jurisdiction of the Civil Court, it continues to have the jurisdiction since it has no jurisdiction in respect of the other reliefs.

11. In view of the above contentions, the points that arise for my determination in this appeal are :

1) Whether the plaint schedule property is covered by the trust deed dated 13-8-1975?

2) Whether the suit schedule property has been purchased benami in the name of the plaintiff by late Triveni Bai?

3) Whether the Civil Court has jurisdiction to try the suit?

4) Whether the relief of declaration claimed by the plaintiff by means of an amendment to the plaint is barred by limitation?

12. POINT NO. 1 :

Notwithstanding the fact that whether the suit property was purchased benami in the name of the plaintiff by late Triveni Bai or whether the plaintiff himself purchased the property and is the owner thereof, if for any reason this Court comes to the conclusion that the suit property forms part of the trust property the plaintiff shall have to be non suited. Having regard to the significance attached to this point, it is expedient to take up this point first. Ex. B.3 is the trust deed and Ex. B.2 is the plan annexed thereto. The execution of this document by the plaintiff, late Madanlal and Madanlal's daughter is not in dispute and they are parties thereto. It has been recited therein specifically that late Triveni Bai has purchased the premises bearing MC No. 5-8-110 situate at Nampally, Hyderabad, consisting of three storied building, two shops and the land appurtenant to it. This recital of course has been further qualified by the expression 'fully described in the plan annexed hereto.' It has been further recited that the said premises waspurchased by late Triveni Bai for using it for charitable and religious purposes in ordinary course, full description of the property contained in the plan cannot in any way add to or subtract from the property as recited in the deed itself, namely, three storied building, two shops and the land appurtenant to it. Generally the purpose of the plan annexed to the document is to elucidate the property mentioned in the document. However, in this case Ex. B.2 plan shows that the property covered by the plan is the southern portion of the three storied building, two shops and the land appurtenant to it, inasmuch as the northern boundary has been shown as building of Mahaveer Pershad. At any rate, the whole of three-storied building has not been covered by Ex. B.2 plan. Thus, Ex. B.2 plan falls foul of the clear description of the property made in the document. It may be mentioned here that the plan attached to Ex. A.1 sale deed under which ostensibly the northern portion of the building was purchased in the name of the plaintiff and the plan attached to Ex. A.7 sale deed under which late Madanlal purchased the open land and the plan attached to Ex. A.8 registration extract of the sale deed under which Triveni Bai purchased southern portion of the three storied building, are all considered together, indeed as sought to be endeavoured by the learned counsel for the first respondent; leave no room for any doubt that under these three sale deeds southern portion, northern portion and appurtenant vacant site have been purchased by late Triveni Bai, the plaintiff and late Madanlal respectively. Apart from this, Ex, A.9 sale deed shows the property which is towards the northern side of the property covered by Ex. A. 1 was purchased by Ghissaram, the natural father of the plaintiff. This property covered by Ex. A.9 sale deed is also a part of the premises bearing MC No. 5-8-110. However, it is kept distinct and separate. Having regard to these indubitable facts, the endeavour of the learned counsel for the property purchased by the plaintiff under Ex. A.1 being separate and distinct can be appreciated. Ail this is one part and whether that property also forms part of the trust property under Ex. B.3 is a different part, which is very much germane for consideration. Therefore, the proper approach in such circumstances is to interpret the document by looking at therecitals contained in the document. Whether or not any extraneous evidence, is permissible to be considered while interpreting the recitals in Ex. B. 3 trust deed is the moot question.

13. It is apposite here to consider Sections 93 - 98 of the Indian Evidence Act. They deal with the rules as to interpretation or as is also called, construction of documents with the aid of extrinsic evidence. Of them, Sections 93 - 97 are germane for consideration here. Coming within the realm of Chapter VI dealing with the exclusion of oral by documentary evidence, while, Section 93 excludes the evidence which would show the meaning of any document or which would supply its defects in the document when the language used in the document is on its face ambiguous or defective. Section 94 says that when the language used in the document is plain in itself and applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. However, while Section 95 says that when the language used in the document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense; Section 96 reads that the language used in the transaction might have been meant to apply to any one of several persons or things, evidence may be given of facts which shows which of those persons or things it was intended to apply; and Section 97 reads that when the language used applies to partly one set of existing facts and partly to another set of existing facts but the whole of it does not apply correctly to either, evidence may be given to show to which of the twp it was meant to apply. A perusal of these provisions makes it obvious that Sections 93 and 94 deal with patent ambiguity and Sections 95, 96 and 97 deal with latent ambiguity. In case of patent ambiguity, no extrinsic evidence is permissible and in case of latent ambiguity extrinsic evidence may be given.

14. Sri G. Anjappa, learned counsel appearing for the appellants seeks to place reliance on a judgment of the Oudh High Court in Abdul Ghani v. Ashiq Husain, AIR 1922 Oudh 162 whereunder it has been held thus :

'Where, in a grant of land there is a repugnancy between the terms of the grant and any plan or diagram, the general rule isthat the former will prevail. But where the plan or the boundary is a part and parcel of the description itself, the general rule ceases to apply.'

It has been further held in page 164 thus:

'Another general rule, is that, 'where in a grant the description of the parcels is made up of more than one part and one part is true and the other false, then if the part which is true describes the subject with sufficient accuracy, the untrue part will be rejected as a falsa demonstratio and will not vitiate the grant.'

That was a case where both the parties to the litigation derived their respective interests in the properties in the suit from one Khurshedi Khanam who executed a sale deed in favour of one Fida Hussain in Ex. B.1 from whom the plaintiff purchased the properties. The whole of the property was delinerated in green and pink colours in Ex. B.1. It was recited inter alia in the documents thus : 'two pucca one storied houses together with land as per boundaries given below, including the room with shop are owned and possessed by the executant, the same two houses are hereby sold to Fida Hussain.' At the foot of the deed, the specification of the boundaries of the first large house and of the second small house were given. Extrinsic evidence consisting of plan prepared by Amin and his two reports was sought to be given at the trial. That evidence was accepted by the trial Court for the purpose of elucidating what was comprised within the limits fixed by the boundaries specified in the deed. On that question of fact, it was found by the Oudh High Court that there had been a manifest discrepancy arising between the parcels as described in the body of the deed and portion defined by the boundaries at the foot of the deed and, therefore, it was a case where the language by which the property intended to be conveyed had been described in the deed itself and that there is an ambiguity in the deed in respect of the description of the property covered is perfectly clear. In the absence of the expression as per boundaries given below, the description of the property given in the document is considered, it included a pucca one storied house including kamara with the shop but the boundaries portion included only to a portion of the same house and if both are read together do not applycorrectly either to the whole house or a portion of it. The High Court was of the view that it was a case of latent ambiguity. At page 164 it was held thus :

' 'Patens is that which appeareth to be ambiguous upon the deed or instrument, latens is that which seemeth certain and without ambiguity, for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth the ambiguity.' (Bacon's Law Tracts, reg. pages 23. 99). But whether the ambiguity is patent or latent the present case seems to me to be wholly covered by the provisions of Section 97 of the Indian Evidence Act. 1872. Extrinsic evidence was, therefore, rightly admitted and used for the purposes of solving the question whether the description of the property taken as a whole the intention was to convey the larger house in its entirely or only a portion of it. 'The principle that when an instrument contains an ambiguity, evidence of user under it may be given in order to show the sense in which the parties used the language employed, applies to a modern as well as to an ancient instrument, and where the ambiguity is patent as well as where it is latent.'

(Emphasis is mine)

15. The learned counsel relies upon another judgment of the Orissa High Court in Basudev Das v. Somenath Das, : AIR1964Ori63 wherein it has been held thus :

'Where the language of a document is plain and unambiguous and correctly applies to existing facts a party will not be permitted to say that the property referred to in that document was some other property. But where the recitals in a sale certificate though plain in themselves do not fit in with the admitted facts, viz.. the survey number, the names of the tenants and the area of the plot of land sold, and a doubt arises that either the survey number or the names of the tenants and area given must be wrong, extrinsic evidence is admissible under Sections 95 and 97 of the Evidence Act.'

That was a case where the sale certificate which was the document of title for the defendants contained contradictory statement. Though the total area and the names of the judgment-debtors seemed to refer survey number 186, the survey number had been wrongly shown as 186. On behalf of the defendants it was urged that this was a misdescription and the real survey numberwas 185. Both the lower Courts held that the sale certificate actually related to Survey No. 185 and that there was a misdescription of the plot by giving the wrong Survey No. 186. A learned single Judge of the High Court had taken a different view. While reversing the judgment of the learned single Judge and upholding the finding of both the lower Courts, a Division Bench of the Orissa High Court was of the view that it was a case of misdescription contained in the document itself. In the process, it was held that while construing the sale certificate extrinsic evidence would be admissible by virtue of Section 95 read with Section 97 of the Indian Evidence Act.

16. The Privy Council in Ramabhadra Naidu v. Kadiriyasami Naicker, AIR 192 PC 252 held thus ;

'If there is no ambiguity in the words of the certificate of sale, the object of the certificate would be defeated if it were possible to change its plain meaning by reference back other documents on which the decree is based.'

(Emphasis is mine)

That was a case where it has been mentioned in the sale certificate as whole of the land belonged to and enjoyed by the sons of the first defendant who acquired them as legal representatives of the first defendant and all incomes, rights and privileges attached to the zamindari. Having regard to the fact that at the time when the sale certificate was issued, the whole of the land in dispute were in fact in the enjoyment of the sons of mortgagor, the Privy Council was of the view that there was no ambiguity in the words of the certificate, the object in the sale certificate would be defeated if it were possible to change its plain meaning by reference to other documents. It is obvious therefore that no extrinsic evidence shall be permitted to be adduced to construe the meaning of the document what was otherwise plain and unambiguous.

17. In Alla Basavapunna Reddy v. Kalaga Krishnayya, : AIR1966AP260 , it was held thus :

'The real intention of the parties has to be gathered not merely from what ex facie is set out in the document in question but also from extrinsic evidence of user, that is to say, the evidence as to how much was taken delivery of by the auction purchaser, how much was in his actual possession and en-joyment and how much, if any was in the possession of the original owner against whom the decree-holders sought to levy execution.'

In paras 8 and 9 it was held as hereunder :

'But it has also been ruled by the Courts that in the matter of interpretation of documents, Sections 95 and 97 of the Indian Evidence Act embody important exceptions to the general rule laid down in Section 91 of the Indian Evidence Act that when the terms of a contract have been reduced to writing, no evidence shall be given in proof of the terms of the contract except the document itself (or secondary evidence of its contents in certain case). The illustration to Section 95 shows that if A sells to B 'my house in Calcutta' and if A has no house in Calcutta but has a house in Howrah, of which B has been in possession since the execution of the deed, these facts may be proved to show that the deed related to the house in Howrah. So the illustration to Section 97 shows that if A agrees to sell to B 'my land at X in the occupation of Y' and A has land at X but not in the occupation of Y but it is not at X, evidence may be given to show which was intended to be sold. ........... That is to say, thereal intention of the parties has to be gathered not merely from what ex facie is set out in the document in question but also from extrinsic evidence of user, that is to say, the evidence as to how much was taken delivery of by the auction purchaser, how much was in his actual possession and enjoyment and how much, if any was in the possession of the original owner against whom the decree-holders sought to levy execution.

The correct view to take is that even in the case of sale certificates in the first instance the area within the boundaries must be held to prevail over the extents. But under Sections 95 and 97 of the Indian Evidence Act, the parties could lead extrinsic evidence to show that was the true state of affairs, that is to say, whether the whole land lying within the boundaries described was taken possession of and enjoyed in fact or only the extent specified was taken possession of and enjoyed.'

However, the Apex Court in Chunchun Jha v. Ebadat All, : [1955]1SCR174 held as hereunder :

'Where a document has to be construed,the intention must be gathered in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended.'

Therefore, it is not permissible to adduce extrinsic evidence so as to gather the intention of the parties to the document. However, it is permissible to look into the surrounding circumstances to determine what was the intention of the parties.

18. From the above discussion what emerges is that

(1) where the language used is on its face ambiguous or defective so as to render the meaning unintelligible or where the language though intelligible creates an obvious uncertainty of the meaning, extrinsic evidence is wholly inadmissible because it is a patent ambiguity;

(2) where the language used is quite plain and intelligible but some difficulty arises in applying them to existing facts, for example, when a description is partly correct and partly incorrect, parole evidence is admissible to identify the subject-matter;

(3) where the language used is such that part of a description applies to one subject-matter and part to another, but the whole does not apply correctly to either, parole evidence is admissible;

(4) where the language used is plain and intelligible and applies equally to two or more persons or two or more things and it is necessary to ascertain to which person or thing the words were intended to apply, parole evidence is admissible;

Categories (2), (3) and (4) pertain to latent ambiguity.

(5) in construing the document, the intention must be gathered from the document itself. However, if there is ambiguity in the language used in the document, it is permissible to look to surrounding circumstances to gather the intention, such as user or possession and enjoyment.

19. Coming to the instant case, the wholeof the three storeyed building has been in the occupation of a trust. While the plaintiff says that it is only in the year 1979 he let out the northern portion of the building to the trust on a monthly rent of Rs. 1,000/-and earlier thereto it was under the occupation of tenants for some time and for a couple of years proceeding the aforesaid lease in favour of the trust it was in his occupation, the defendants-appellants say that the property in question is the trust property having been endowed under the trust deed by the plaintiff; late Madanlal and D.W. 1 his daughter, in order to fulfil the desire of late Triveni Bai to use the premises for charitable purpose and, therefore, the whole of the building has been in the occupation of the Trust and it is the Trust that has been paying the Municipal taxes, electricity charges, water charges, etc. Except showing some income-tax return, wherein some self-serving recital have been made, no evidence in support thereof has been adduced by the plaintiff-first respondent. It is not his case that he has been paying the property tax over the property in question. It is now his case that he let out these premises to the Trust in the year 1979. There is no evidence in support thereof. Therefore, except the word of mouth of P. W. 1, there is no other evidence to support his claim that northern portion of the building has been in his possession and enjoyment. No details have been mentioned even in the plaint as to who were the tenants to whom he had let out the premises and to what quantum of rent. On the side of the defendants they produced Exs. B.7 to B. 15 to show that the Trust has preferred the appeals before the Chief Judge, City Small Causes Court, Hyderabad against the demand notices issued by the Corporation. Exs. B.7 and B.8 are the certified copies showing that stay order was granted by the Court. These documents pertain to House Nos. 5-8-216 to 219 and 5-8-110/A respectively. Exs.B.9 and B.10 are the certified copies of the judgments passed allowing the said appeals. Exs. B.11 to B.15 are the electricity consumption card, water charges receipt and receipts for electricity consumption charges respectively. Although some of the documents are in the name of the original owner Sikander Begum, there is no gainsaying that the appellants have been paying the taxes, charges, etc. In ordinary course, one would expect the plaintiff-first respondent to get the property mutated in his name in the assessment registers of the Corporation and to pay the taxes payable thereon particularly when it is his tall claim that he is the owner thereof and let out the property to the tenants and derived income therefrom. De hors the claim of lease by the plaintiff, the possession of whole of the premises bearing MC No. 5-8-110 by the trust by paying the property taxes payable thereon to the Corporation is consistent with the version of the defendants, Admittedly, a hospital has been located in the first floor of the building. It may be mentioned here that although the building was purchased under two different sale deeds mentioning northern portion and southern portion, it is one building without there being any division or partition. This evidence available on record shows obviously that the whole of the triple storeyed building, the mulgies; and the appurtenant site are in the use and occupation of the Trust as claimed by it. Therefore, the language used in Ex. B.3 trust deed that the three storeyed building, two shops and the land appurtenant to it are the properties of the Trust, accurately applies to the existing facts.

20. Assuming for a moment that there has been no such evidence of user or even if such evidence is available cannot be considered it is apposite to consider in such circumstances a passage from Sarkar on Evidence 14th Edition of 1993, at page 1312 under the heading 'Falsa demon$tratio non nocet cum de corpore constat,' as extracted hereunder :

'That apart, the maxim 'falsa demonstratio non nocet cum de corpore constat' squarely applies in the context. It means a false description does not vitiate. According to this maxim, an instrument will not necessarily fall or become inoperative because it contains an inaccurate or false description. If after rejection of the inaccurate description there is sufficient evidence to identify the person or the property, effect will be given to it. Although parol evidence of the author's declarations cannot be received, the instrument will not in consequence of the inaccuracy be regarded as inoperative, but if after rejecting so much of the description as is false, the remainder will enable the Court to ascertain with legal certainty the subject-matter to which the instrument really applies, it will be allowed totake effect. The rule in such cases is 'falsa demonstratio non nocet.' If the descriptive words contain a sufficiently certain definition of what is conveyed, inaccuracy of dimension or of plans as delineated will not vitiate or affect that which is sufficiently described.'

(Emphasis is mine)

21. In Parekh Brothers v. Kartick Chandra, AIR 1968 All 532, a Division Bench of the Calcutta High Court held thus :

'The doctrine of false demonstration which has been often described as the blue pencil theory authorises a Court in certain circumstances to strike out from a deed few repugnant and insensible words. But where the words in themselves are quite sensible and the document taken at its face value is perfectly consistent the Court cannot ignore the plain meaning of the document and strike out a few words only to make the document conform to the actual facts of the case. The Court's power is confined to correct such inconsistency and insensibleness as appears from intrinsic evidence. Thus wrong grammar or spelling may be corrected; words that are merely insensible or that are repugnant or that have been obviously left in by mistake or that have been immaterial and surplusage and even whole provisions may be rejected.'

22. In Venkata Subba Rao v. Krishnamurthy, AIR 1958 Andh Pra 447 a Division Bench of this Court held thus :

'The cardinal principle in construing the terms of wills and other instruments is that clear and unambiguous dispositive words should be given their full effect and should not be controlled or qualified by general expression of intention. The Court is not concerned with what the parties intended but with the meaning of the words used and if the language is clear and consistent it should receive its literal construction unless there is something in it to suggest a departure from it.'

23. In Basavapunna Reddy v. Krishnayya ( : AIR1966AP260 ) referred to supra in para 8 it has been held thus :

'Another common case is where land within certain boundaries is sold and is wrongly described as containing a certain area, the error in area is regarded as a mere misdescription and does not vitiate deed. The maxim demonstratio falsa non nocetapplies.'

24. As aforediscussed. the language used in Ex. B.3 trust deed is quite intelligible and there is absolutely no patent ambiguity and applies accurately to the existing facts. The document specifically includes the three storeyed building, two shops and the land appurtenant to it. The qualifying words further added in the document as 'fully described in the plan annexed hereto' are meant to further elucidate the property, which has been specifically mentioned in the document. Therefore, it is a case where the property intended to be conveyed has been described in the deed itself. In that view of the matter, Ex. B.2 plan attached to Ex. B.3 trust deed cannot be held to be forming part of the document itself. Had it been a case where the property has not been specifically described in the document itself, instead it is intended to be more fully described in the plan attached to the document, the plan would have become part and parcel of the document. Even in the absence of Ex. B.2 plan, having regard to the clear and unambiguous recitals contained in Ex. B.3 trust deed, one can easily identify the property covered by the said document. Therefore, the repugnancy that has arisen on account of Ex. B.2 plan cannot vitiate Ex. B.3 trust deed and can be set at naught by applying the doctrine 'falsa demonstratio non nocet.' Furthermore, having regard to the surrounding circumstances, namely, user of the building by the trust, property described in Ex.B.3 trust deed can be considered which clearly shows the whole of the three storeyed building, which in the occupation of the trust is covered by Ex. B.3 trust deed. In that view of the matter, no extrinsic evidence, indeed as sought to be endeavoured by the learned counsel for the first respondent by referring to other documents viz. Exs. A.7, A.8 and A.9 can be permitted to be adduced. In any view of the matter, it is obvious, having regard to the reasons mentioned hereinabove, that Ex. B.3 trust deed covers the property covered by Ex. A.1 sale deed.

25. POINT NO. 2 :

While the plaintiff claims that he is the owner of the suit premises having purchased the same under Ex. A. 1 sale deed and that Madanlal was his adoptive father, the defendants claim that the entire premises bearing MC No. 5-8-110 including the openland was purchased by late Triveni Bai with her own funds under two separate sale deeds of even date one in her name and the other in the name of the plaintiff as benami; and that the plaintiff who was minor by then had no capacity to purchase the suit property. The oral evidence on the point is that of P.W. 1, the plaintiff himself, and D.Ws. 1 and 2 who are the daughter of late Madanlal and Triveni Bai and the grandson claiming himself to be the adoptive son of Madanlal respectively. Admittedly, P.W. 1 was a minor at the time when the property covered by Ex. A. 1 was purchased. The endorsement made on the overleaf of second page of Ex. A. 1 and marked as Ex. A. 1 (a) clearly shows that the amount was paid by Madanlal before the Registrar at the time of registration. The plaintiff claims that his adoptive father Madanlal, his natural father Ghissaram, his paternal uncles Kishanlal and Chaganlal each gifted Rs. 5,000/- in the month of February, 1971; and that he was having by then an amount of Rs. 7,900/- and thus a sum total of Rs. 27,900/- he was having by then, out of which the consideration of Rs. 22,000/- was passed under Ex. A.1. In support his case, the plaintiff seeks to place reliance upon Exs. X. 1 to X. 5 and Exs. A. 13 to A. 16 certified extracts of the bank accounts. As against this evidence, apart from the oral account of D.Ws. 1 and 2, the defendants seek to place reliance upon Exs. B.4 to B.6 pass books and Exs. B.7 to B. 10 orders passed by the Municipal Commissioner about the property tax payable on the suit premises and Exs. B. 11 to B. 15 receipts under which the taxes are said to have been paid. Ex. X. 1 to X.5, having been summoned through the Court and produced pursuant thereto under a letter dated 3-3-1984 from the office of the Income-tax Officer, G-Ward, Circle-I, Hyderabad, authenticity of the same documents cannot, therefore, be doubted. Ex. X. 1 is the document containing the details of the investments and sources of funds. These details have been furnished for a period of more than one and a half decade ranging from 1961 till 2-3-1978. This document does not contain any signature or verification. At any rate, these details have been furnished obviously by P.W. 1 himself for the purpose of assessment for the assessment year 1979-80. The enclosures thereof are the certificates, Exs. X.2 to X.5, dated 14-10-1980 said to have been issued byChaganlal, Kishanlal, Ghissaram and Madanlal. Each one of them confirmed in these documents that he had given an amount of Rs. 5,000/- as gift to the plain-tiff-Mahaveer Pershad in the month of February, 1971. To confirm these amounts, Exs. A. 13 to A. 16 certified extracts of the bank accounts have been filed. It is not known as to why the plaintiff filed the return containing the details of investments and sources of funds starting from 1961 onwards for the first time in the assessment year 1979-80. It is said that by 1961 the funds were available with the real mother of the plaintiff and at the time of giving adoption to his uncle in the year 1961 they were in an amount of Rs. 7,900/-. Obviously, the details contained in Ex. X. 1 are the self-serving details having been furnished by the plaintiff himself. As can be seen from Exs. X. 2 to X. 5 and Exs. A. 13 to A. 16, the plaintiff was having these amounts having been gifted by four persons as aforesaid. There is no supporting evidence to show that he was having by then an amount of Rs. 7,900/- except the self-serving entry in Ex. X.1. The accounts supposed to have been maintained by him have not been produced. Even assuming for a moment that the plaintiff was having all these amounts, still it must be shown further that the consideration under Ex..A.1 was passed from out of these funds.

26. Coming to Exs. B.4 to B.6 pass books, one stands in the name of Madanlal, the other in the name of D.W. 1 and the last one in the joint names of the plaintiff and Madanlal. The capacity of the Madanlal is beyond doubt. Some of the entries in Ex. B.6 pass book show the deposit and withdrawal of the amounts in the month of February, 1971. In ordinary course one would expect the amounts covered by Exs. X.2 to X.5 to have reflected in Ex. B.6 pass book. The entries in Ex. B.6 have not been and cannot be in my considered view correlated to Exs. X. 2 to X. 5 amounts. Absence of any such entries in Ex. B.6 would negate the claim of the plaintiff. Obviously, by then the plaintiff was minor and that is the reason why the account was opened in the joint names of the plaintiff and Madanlal. In the absence of any supporting evidence, it cannot legitimately be concluded by looking at these entries covered either by Exs. A. 13 to A. 16 and Exs. B.4 and B.6 that the amounts covered by Exs. X. 2 to X. 5 have been showninto these amounts and that from out of these amounts ultimately the consideration was paid under Ex. A. 1 document. Neither P.W. 1 nor D.Ws. 1 and 2 can authoritatively speak about it, having regard to the fact that the plaintiff was minor by then and all these three witnesses had no personal knowledge about these entries. As aforediscussed, reliance cannot be placed on Ex. X. 1 since it contained the self-serving statement of P.W. 1 without the supporting evidence in the form of accounts maintained in regular course of business and a legitimate doubt arises having regard to the fact that what led the plaintiff to furnish these details ranging from 1961 to 1978 for the first time in the assessment year 1979-80 notwithstanding the fact that the assessment order was passed basing on the said return. This documentary evidence adduced on either side cannot help in proving the plaintiffs case about the source of consideration passed under Ex. A.1. The fact remains that late Madanlal paid the amount at the time of registration of the sale transaction under Ex. A. 1 and that by then the plaintiff was a minor.

27. The plaintiff claims to be the adopted son of late Madanlal. No issue has been framed in the suit in this regard. However, the parties have knowledge that in substance the said plea is being tried. Both the parties have had an opportunity to lead evidence and in fact have led the evidence on the factum of adoption. Therefore the formal requirement of an issue being framed can be relaxed. Vide, Bhagawati v. Chandra. : [1966]2SCR286 . It is also not advisable at the same time to shut one's eyes to the clear documentary evidence coming forth in this case. Ex. A. 1 itself recites that Madanlal was the natural guardian and father of the minor Mahaveer Pershad. Under the original of Ex. A.4, notice was got issued by the plaintiff to late Madanlal, the President of Triveni Bhavan Trust. He claimed himself in the said notice as the son of Madanlal. There has been no gainsaying about the same in the reply given in Ex. A.5 pursuant to Ex. A.4 notice. Ex. A. 17 is the certified copy of the affidavit of late Madanlal given in support of the petition in LA. No. 1429 of 1977 in O.S: No. 3008 of 1977 on the file of the VIIth Assistant Judge, City Civil Court, Hyderabad. That was a suit filed by SardarJagjeet Singh against Madanlal, the plaintiff herein, and the second defendant-Laxmi Devi daughter of Madanlal. In the said affidavit, late Madanlal had sworn to the effect that the respondents 2 and 3 therein who are the plaintiff and the second defendant herein were his adopted son and daughter respectively. Ex. C.1 is yet another document which is the certified copy of the affidavit of late Madanlal filed in support of the petition in I.A. No. 97 of 1981 in A.S. No. 364 of 1981. That appeal as well as the interlocutory application are said to have been filed by Madanlal, Mahaveer Pershad and Laxmi Devi as appellants. In this affidavit again Madanlal has sworn to the fact that Mahaveer Pershad is his son and Laxmi Devi is his daughter. These documents contain an unequivocal admission on the part of Madanlal to the effect that the plaintiff was his son. Obviously, the plaintiff is the natural son of late Gheesaram, the younger brother of Madanlal. It is noteworthy that under Ex. A.9 sale deed Gheesaram, the natural father of the plaintiff purchased a part of the premises bearing MC No. 5-8-110, on the same day on which the property covered by Ex. A. 1 sale deed was purchased in the name of the plaintiff, the property covered by the original of Ex. A.8 sale deed was purchased by late Triveni Bai; and the property covered under the original of Ex. A.7 sale deed was purchased by late Madanlal. When Gheesaram was alive and had purchased a part of the premises in question along with the other purchasers namely Madanlal and Triveni Bai on one and the same date, the fact that the plaintiff had been described as son of Madanlal in Ex. A. 1 sale deed gains significance and could not be ignored in the context in which it came to be articulated. That apart, in Ex. B.3 trust deed again the plaintiff had been described as son of Madanlal and Triveni Bai. D.W. 1 who is a signatory to this document cannot now validly contend that the plaintiff is not the adopted son of late Madanlal and Triveni Bai. It has been specifically recited in Ex. B.3 that Triveni Bai was the wife of author of Trustee No. 1 and mother of author of Trustee Nos. 2 and 3. Trustees 2 and 3 mentioned therein are P.W, 1 and D.W. 1. These admissions made by late Madanlal and D.W. 1 clearly show that the plaintiff was the adopted son of lateMadanlal and Triveni Bai. Furthermore, late Madanlal and Triveni Bai had no son at all except the daughter who is D.W. 1 herein. This highly probabilies the case of the plaintiff. Thus, there has been overwhelming evidence on record to show that the plaintiff is the adopted son of late Madanlal and Triveni Bai.

28. The facts emanating from the record clearly show that the plaintiff was a minor by the date of Ex. A.1 sale transaction. He further and natural guardian late Madanlal paid actually the consideration at the time of the registration of the transaction. The plaintiff, late Madanlal and Triveni Bai and the second defendant herein, belonged to one family by then and constituted the members of a joint family. No plea of joint family and kartha of the joint family having purchased the properties in the name of the minor has been taken in this suit, which is a natural event. However, it is the specific plea of the defendants in their written statement inter alia that late Triveni Bai purchased the property in the name of the minor plaintiff as benami. The oral evidence sought to be adduced on the side of the defendants that Madanlal had the necessary funds and that the consideration passed from out of the funds of Madanlal is quite inconsistent with the plea taken by them that late Triveni Bai purchased the property benami in the name of the minor plaintiff. Rightly, therefore, the learned counsel appearing for the respondent placed reliance upon a judgment of the Apex Court in Vinod Kumar v. Surjit Kaur, : [1987]3SCR552 . The Apex Court held as follows :

'The pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case.'

In view of the specific plea taken in the written statement by the defendants and since there is no plea that the Madanlal paid the consideration on behalf of Triveni Bai, the oral evidence sought to be adduced on the side of the defendants cannot, therefore be considered.

29. Notwithstanding the fact that there has been no specific plea that late Madanlal paid the consideration under Ex. A.1 on behalf of his wife late Triveni Bai and the evidence that has been adduced by the de-fendants in that regard having not been consistent with the plea cannot be considered as discussed hereinabove, certain circumstances emanating from record and the probabilities of the case cannot be ignored, prejudicially going by the absence of the plea and the inconsistent evidence sought to be , adduced by the defendants. It is noteworthy that the written statement has been filed by late Madanlal and by the time of defendants evidence he was not alive. Obviously, it is not possible to claim that it is property of late Madanlal having been purchased by him by his own funds in the name of his minor adopted son-plaintiff herein and indeed he did not claim so in the written statement filed by him. Therefore, late Madanlal must have paid the consideration under Ex. A. 1 either on behalf of the minor plaintiff or on behalf of his wife Triveni Bai. If it were be the case that late Madanlal paid the consideration on behalf of his wife as claimed by the defendants, there must be evidence to show that the consideration was flown under Ex. A. 1 from fate Triveni Bai. It is no doubt true that here capacity to purchase is beyond doubt inasmuch as she purchased a portion of the building on the same date on which day the other portion of the building was purchased under Ex. A. 1. In fact, it is the plea of the defendants that late Triveni Bai purchased a three storeyed building under two different sale deeds on the same date the southern portion in her name and the northern portion in the name of the minor plaintiff as benami.

30. Obviously the minor plaintiff is the ostensible owner. The plea of benami having been taken by the defendants the burden squarely lies on them. The inconsistent oral evidence sought to be adduced on their side cannot, for the reasons mentioned herein above, be considered. The Court below rejected this plea on the premise that the provisions of Benami Transactions (Prohibition) Act (for short 'the Act') would apply and, therefore, that defence was not open to be taken up by the defendants. The Court below has fallen into a glaring error by refusing to consider the plea of benami having been of the view that the Act prohibits such defence to be taken up by the defendants, oblivious of the specific provisions of Sub-section (3) of Section 4 of the Act, which carves out an exception to the prohibitionengrafted in Sub-sections (1) and (2) thereof in cases where the person in whose name the property is held is a co-parcener in Hindu undivided family and the property is held for the benefit of the co-parceners in the family or that person is a trustee or other person standing in a fiduciary capacity. Having regard to the fact that it is the case of the plaintiff that he is the adopted son of Madanlal and Trivent Bai, he becomes the co-parcener of undivided family of Madanlal and Triveni Bai. Therefore, the prohibition contained in Sub-sections (1) and (2) of Section 4 of the Act will not apply in view of that plea. True, the law by then prevailing supports the view that the Act had retrospective effect. But in R. Rajagopa Reddy v. Padmini Chandra Sekharan there has been change in the legal position. The provisions of Benami Transactions (Prohibition) Act would operate prospectively. Therefore the provisions of the Act do not operate in respect of the transaction covered by Ex. A. 1 since the Act was passed in the year 1978 whereas the transaction was in the year 1971. At any rate, the burden is upon the defendants to prove the transaction covered by Ex. A. 1 as benami transaction. As aforediscussed, on the same day under Ex. A. 1 and under the originals of Exs. A.7 and A.8 and under Ex. A.9 properties have been purchased from the vendor Sikender Begum. The property purchased by late Madanlal was subsequently transferred in the name of late Triveni Bai, to give effect to the avowed intention of late Triveni Bai of running a charitable institution. However, the property covered under Ex. A.1 has not been transferred in favour of Triveni Bai. It becomes a piquant question as to why the property purchased by Madanlal when transferred again in the name of Triveni Bai, the property covered by Ex. A. 1 was not transferred. It may be mentioned here that the property covered by Ex. A. 1 and the property covered under the original of-Ex. A.8 pertain to the three storeyed building, while the property purchased by Madanlal under the original of Ex. A.7 is the vacant site appurtenant to that building. Perhaps, they might have thought it not necessary to get another conveyance deed executed in the name of Triveni Bai transferring the property covered by Ex. A. 1. It may be also on account of the fact that it stood in the name of the minor having been purchased by late Triveni Bai her-self, it was felt not necessary to get it transferred unlike the property purchased by Madanlal. There has been a specific recital in Ex. B.3 trust deed, which may be extracted herein below thus :

'Whereas Triveni wife of author of Trustee No. 1 and mother of author of Trustees Nos. 2 and 3 had purchased the premises bearing Municipal No. 5-8-110 situated at Nampally, Hyderabad, consisting of three storeyed building, two shops, and the land appurtenant to it fully described in the plan annexed thereto. The said premises was purchased by Triveni Bai for using it for charitable and religious purposes.'

The plaintiff is a signatory to the trust deed, the execution whereof has not been denied by him, It, therefore, constitutes an unequivocal admission on the part of the plaintiff. There has been no explanation by the plaintiff as to why it has come to be recited in Ex. B.3 that late Triveni Bai purchased the premises consisting of three storeyed building, two shops and the land appurtenant to it and she purchased the said premises for using it for charitable and religious purposes. Obviously, as discussed hereinabove under point No. 1 and the eventual conclusion, it shows that the property covered by Ex. A.1 sale deed is part of the property covered by Ex. B.3 trust deed. Admittedly, the property covered under Ex. A. 1 has been under the occupation of the Trust by locating a hospital therein. This subsequent conduct of the parties and the possession and enjoyment of the property would have a significant bearing on the question of benami nature of the transaction. It is only for the first time under Ex. A.4 registered notice got issued by the plaintiff on 21-12-1981 the plaintiff claimed that he had let out the property in favour of the Trust. It has been denied under Ex. A.5 reply got issued by late Madanlal. The fact that the plaintiff has been the Secretary of the Trust and one of the life time trustees and convenor of the Trust as can be seen from Ex. B.3 it looks odd that the property covered by Ex. A. 1 was let out in favour of the Trust and there has been relationship of landlord and tenant in between himself and the trust. If really, it had been intended to keep the property covered by Ex. A. 1 distant and separate from the other properties of the Trust, a document evidencing the leaseshould have been executed. There has been no iota of evidence to prove the factum of lease, except the tall claim of the plaintiff himself. In Jaydayal Poddar v. Bibi Hazra, : [1974]2SCR90 the Apex Court laid down the following indicia to be considered in determining the benami nature of transaction thus :

'Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid own, yet in weighing the probabilities and gathering the relevant indicia, the Courts are usually guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale.'

Following the said judgment in Bhim Singh v. Kan Singh, : [1980]2SCR628 the Supreme Court laid down four guidelines thus :

'(1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who had contributed the purchase money, and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of parties, the motive governing their action in bringing about the transaction and their subsequent conduct, etc.'

Applying the above indicia if the circumstances emanating from the record in the instant case are considered, it is obvious that the intention of the parties in purchasing the properties was only to use the same for charitable purposes. The said intention has been declared by late Triveni Bai soonafter the purchase and has been reflected very much in Ex. B.3 document. Pursuant to the said declaration, the property covered by Ex. A. 1 has been in the possession and enjoyment of the Trust by locating a hospital therein. The consideration under Ex, A. 1 has not been passed as discussed by me herein above from the so-called funds of the plaintiff but on the other hand the consideration was paid by late Madanlal at time of Registration. The plaintiff was a minor by the date of purchase of the property under Ex. A.1 and as discussed by me herein above, he was none else than the adopted son of late Madanlal and late Triveni Bai. The taxes payable over the property are obviously being paid by the Trust. These inherent and innate circumstances emanating from record, in my considered view, would answer sufficiently and squarely the above indicia for determining the benami nature of transaction. Therefore, for the foregoing reasons, I have no hesitation to hold that the property covered by Ex, A. 1 was purchased in the name of the plaintiff by late Triveni Bai for the purpose of running a charitable institution.

31. Point Nos. 3 and 4 :

In view of the findings on Point Nos. 1 and 2, there is no need to answer these points. Once the property is said to be the trust property, the lease set up by the plaintiff-first respondent cannot be countenanced and he is not entitled to the relief of declaration in consequence thereof. The jurisdiction of the Civil Court cannot therefore be doubted.

32. In view of the findings on point Nos. 1 and 2, the judgment and decree passed by the trial Court are liable to be set aside.

33. In the result, the appeal is allowed and the judgment and decree dated 29-7-1993 passed by the learned 1st Additional Judge, City Civil Court, Hyderabad, in O.S. No. 754 of 1983, are hereby set aside. In sequel thereto, the suit stands dismissed. The cross-objections filed by the plaintiff-first respondent are also hereby dismissed. Under the circumstances and in view of the relationship between the parties inter se, there shall be no order as to costs.


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