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Krishnan Kumaran Vs. Mathew J. Mattom - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberA.S. No. 312 of 1955 (E)
Judge
Reported inAIR1957Ker119
ActsTransfer of Property Act, 1882 - Sections 8, 10 and 11; Code of Civil Procedure (CPC) , 1908 - Order 20, Rule 12
AppellantKrishnan Kumaran
RespondentMathew J. Mattom
Appellant Advocate T.S. Venkiteswara Iyer and; C.S. Ananthakrishna Iyer, Advs.
Respondent Advocate Mariakutty John, Adv.
DispositionAppeal dismissed
Cases ReferredMahram Das v. Ajudhia
Excerpt:
.....from the entire instrument and all its parts are to be construed with reference to each other. the cases referred to by learned counsel are without doubt, good law, but they do not apply to the facts herein. i by the court below that cheeru's brothers obtained the remainder in the property, absolutely is perfectly right and the alienation by cheeru along with raman in favour of the defendants under ext......allotted as above to cheeru, she should not deal with the property by sale or otherwise during raman's life time and that after her, the property should devolve on her four brothers particularly named. clause 13 finally wound up by saying that the various allottees under the document were to take the respective properties free of other persons' claims and absolutely with right to getpatta and enjoy for all time and further that the properties would descend as makoavazhi properties and not in the marumakkavazhi line. 6. mr. t. s. venkiteswara iyer, learned counsel for the appellant strongly urged before us that the clauses 4 and 13 read together showed that the allotment was to cheeru and cheeru alone absolutely and that clause 10 was in the circumstances merely otiose. according to.....
Judgment:

Varadaraja Iyengar, J.

1. This appeal is by the defendants in a suit for declaration of title and recovery of property with mesne profits.

2. The property scheduled to the plaint originally belonged to Unti Raman. Under Ext. I partition arrangement Of 1084 in regard to the plaint and other properties, between Raman, his brother Krishnan and their two sisters, Raman did not take any share for himself and was content with a provision for contribution of certain amount every month by two Of the allottees. But at the same time the suit property was allotted to Raman's wife Cheeru for her enjoyment for life and thereafter to be taken by her four brothers specifically named. Cheeru died in Kumbhom 1124.

But even during her life-time herself along with Raman gave away the property to the defendants, sons of Krishnan, by Ext. A deed of assignment dated 16-10-1088. The plaintiff obtained sale of the property from Cheeru's brothers and their legal representatives in 1951 under Exts. J, K and L. According to the plaintiff Ext. A assignment deed executed by Raman and Cheeru was wanting in authority and did not affect the interest of Cheeru's brothers in the property under Ext. land therefore the plaintiff's title derived from them. The suit was therefore laid On 11-2-1952 as above said for declaration of title and recovery of the property with mesne profits.

3. The defendants contested the suit mainly on the footing that Ext. I partition of 1084 had been executed merely to shield the properties from the creditors of Raman and did not come into operation and therefore Ext. A assignment deed to which Raman also was party effectively conveyed the title in the property to the defendants. Alternatively and assuming Ext. I was operative, Cheeru obtained not a mere life-interest but the absolute title in the property under and by virtue of Ext. I terms and Ext. A in which she had joined was still valid and effective. In any view, the plaintiff could not maintain the suit on title.

4. The court below, on the main contention, found that Ext. I partition arrangement was genuine and had come into effect. On question of construction, it found that Cheeru got only a life-interest in the property, the remainder vesting absolutely in her brothers. The defendants were therefore held, not entitled to retain the property as against the plaintiff, but as they had put up valuable building in the property, the plaintiff was directed to pay the improvement value before recovery. Hence this appeal by the defendants as above said.

5. The main question raised for our consideration in this appeal is whether the construction of Ext. I partition deed adopted by the court below is any way incorrect.

The relevant clauses of Ext. I are Clauses 4, 10 and 13, Clause 4 provided in the first instance for the allotment of the disputed property in favour of Raman's wife Cheeru and the reasons therefore were mentioned, as, that she was childless and besides, had exerted herself considerably in protecting the properties covered by Ext. I. Clause 10 then said that in respect of the property allotted as above to Cheeru, she should not deal with the property by sale or otherwise during Raman's life time and that after her, the property should devolve on her four brothers particularly named. Clause 13 finally wound up by saying that the various allottees under the document were to take the respective properties free of other persons' claims and absolutely with right to getpatta and enjoy for all time and further that the properties would descend as Makoavazhi properties and not in the Marumakkavazhi line.

6. Mr. T. S. Venkiteswara Iyer, learned Counsel for the appellant strongly urged before us that the Clauses 4 and 13 read together showed that the allotment was to Cheeru and Cheeru alone absolutely and that Clause 10 was in the circumstances merely otiose. According to him the allottee under Clause 4 was Cheeru by herself and not Cheeru and her brothers, so that when Clause 13 provided for absolute rights in the allottee, It must have reference only to Cheeru. Clause 10 would not then stand in her way for, its first portion restrained her disposition of property only for the life time of Raman, leaving her absolute rights thereafter and that, even otherwise, the restraint on alienation must be disregarded as repugnant to the absolute interest already created in her. The subsequent provision in the clause for devolution in favour of her brothers would amount to prescribing a course of succession for her estate not warranted by law. And reference was made by learned counsel to Suresh Chandra v. Lalit Mohan, 31 Ind Cas 405, corresponding to AIR 1910 Cal 775 (A), where it was held semble.

'if an estate is given in terms which confer an absolute estate to a named dor.ee, and, then, further, interests are given merely after or on the termination of that donee's interest, and not in defeasance of it, his absolute interest is not cut down and the further interests fail'.

and also to Kathiru Kunju Seyiumbakunju v. Md. Kunju, AIR 1955 NUC (Trav-C) 1249 (B), which was a case from this court where the same principle of repugnancy was laid down. Further reference was made to Subramanlan v. Kanni Ammal, AIR 1953 Trav-Co. 115 (C), that

'where under a gift-deed the donor unequivocally and unconditionally transfers all his rights over certain property to the donee with absolute powers to deal with the same from the date of gift, a subsequent clause in the deed to the effect that on the death of the donee the property shall not devolve on any of her heirs but will revert to the donor will be repugnant to the absolute estate created in favour of the donee and to the legal incidents of such estate and as such the provision will be ineffective and wholly void.'

7. It seems to us, however, that the interpretation contended for by learned counsel cannot sustain. The principle has been well settled that the meaning of any particular clause in gifts or wills is to be collected from the entire instrument and all its parts are to be construed with reference to each other. And before a provision is disregarded on the ground of repugnancy to the main provision, every attempt must be made to reconcile if possible, the two provisions to see whether the main object of the transferor was to make an absolute transfer or only a restricted transfer. As observed by Mahmood, J., in Mahram Das v. Ajudhia, ILR 8 All 452 (D).

'There are two ways of dealing with a question of this kind. The first is to regard it as a question of construction and to ask what the parties mean by first saying that ownership is to be transferred, and then saying that what is transferred is not ownership in the proper sense. Of course, in such a case every attempt to reconcile those statements should be made, but where no reconciliation is possible, the Courts say that, under those circumstances, the main object of the parties must be kept in view, and that provisions inconsistent therewith must be treated as void.'

Construing Clauses 4, 6 and 13 together, it is clear that the interest intended to be conveyed, in favour of Cheeru was in the nature of a mere life-interest and not an estate of inheritance. That is to say, this is not a case where an absolute interest has been in the first instance created and later clauses are merely repugnant to the absolute estate. It is a case, on the other hand, where the dispositive words creating in the first instance an estate of inheritance are displaced in effect by the subsequent restrictive clauses.

To our mind Clause 13, when it referred to the absolute, interest of the allottee, meant not Cheeru alone as referred to in Clause 4 but Cheeru and her brothers who together represented the life-interest and remainder under Clause 10. And again the restraint on alienation provided in Clause 10, was with reference to Cheeru's life interest for, Raman wanted to see that she was not left unprovided while he was alive. The cases referred to by learned counsel are without doubt, good law, but they do not apply to the facts herein. It follows therefore that the construction placed upon Ext. I by the court below that Cheeru's brothers obtained the remainder in the property, absolutely is perfectly right and the alienation by Cheeru along with Raman in favour of the defendants under Ext. A was invalid and inoperative against the plaintiff's interest.

8. The only other question raised was in respect of the mesne profits allowed by the court below in favour of the plaintiff. According to learned counsel, so long as the court had itself found that improvement value was due to the defendants, there was no warrant for granting mesne profits until the same had been paid to the defendants. But if should not be forgotten that the defendant's possession was that of a trespasser so far as the plaintiffs interest in the property apart from the building, was concerned and there was no reason why the defendants should not be held liable for mesne profits to that extent and that is all that the court below has awarded when it granted the plaintiff mesne profits at particular rate till deposit of the value of the buildings and thereafter at enhanced rate based oft the income accruing from the building.

9. The appeal fails in the result and is therefore dismissed with costs.


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