Skip to content


Subramania Ayyar and Six ors. Vs. Raja Rajeswara Dorai Alias Muthuramalinga Sethupathi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1917)ILR40Mad1016
AppellantSubramania Ayyar and Six ors.
RespondentRaja Rajeswara Dorai Alias Muthuramalinga Sethupathi and anr.
Cases ReferredSeth Chand Mal v. Durga Dei I.L.R.
Excerpt:
.....to the deed can be legitimately looked into in construing the expression 'appurtenances' in the trust deed. where documents are obscure but where parties have long acted on the footing of a given practical construction the court in the absence of better evidence, will accept that construction as correct. another proposition seems well established, namely, that: we are satisfied that the acts of ownership exercised by the trustee and the other evidence to which we have referred show that these five items of property form part of the estate conveyed by the deed of trust. we are satisfied that the respondents are not estopped from raising their contention. the argument of the learned vakil was that the failure to object estopped the present respondents from contesting that the properties..........of ramnad in execution. the decrees were obtained in four out of these five appeals against the late raja of ramnad, and the respondents have been impleaded as legal representatives in possession of assets belonging to the deceased. in one of the appeals, after the decree was obtained in the first court, there was an appeal to the high court by the plaintiff. during the pendency of the appeal, the raja died and the respondents were brought in as his legal representatives and a decree was passed against them.2. there are two points which are common to all the appeals. we shall first deal with them. the facts may be shortly stated as follows: the late raja of ramnad having become heavily involved, executed a deed of trust (exhibit vi) on the 12th july, 1895 by which he transferred.....
Judgment:

Seshagiri Ayyar, J.

1. These appeals have been preferred against orders passed by the Subordinate Judge of Ramnad in execution. The decrees were obtained in four out of these five appeals against the late Raja of Ramnad, and the respondents have been impleaded as legal representatives in possession of assets belonging to the deceased. In one of the appeals, after the decree was obtained in the first Court, there was an appeal to the High Court by the plaintiff. During the pendency of the appeal, the Raja died and the respondents were brought in as his legal representatives and a decree was passed against them.

2. There are two points which are common to all the appeals. We shall first deal with them. The facts may be shortly stated as follows: The late Raja of Ramnad having become heavily involved, executed a deed of trust (Exhibit VI) on the 12th July, 1895 by which he transferred almost the whole of his properties to certain trustees for the benefit of his two minor sons, the present Raja of Ramnad and his brother. The late Raja died on the 23rd December 1903. The decrees in execution were all obtained subsequent to the date of the deed of trust, on debts contracted personally by the deceased. The properties attached in the course of the execution were all of them purchased by the late Raja. The principal point for decision is whether these properties were included in the deed of trust (Exhibit VI). The second point is whether certain orders passed in the course of the execution have the force of res judicata against the respondents.

3. Item No. 1 in dispute is known as the Colonel's bungalow. Item No. 2 is a plot of vacant land near the bungalow. These two items were purchased on the 22nd February 1890 (Exhibit E). Item No. 3 is known as Raja Rajeswari Vilasam alias Mangala Vilasam. It was purchased on the 15th November1 1890 (Exhibit E-3). Item No. 4 is called Niravi Palace and was purchased on the 27th July 1892 (Exhibit E-2). Item No. 5 called Latham's Bungalow was purchased on the 8th February, 1892 (Exhibit E).

4. The Subordinate Judge who heard the applications came to the conclusion that these properties formed part of the estate conveyed by the deed of trust, and that they were not liable to be proceeded against in execution. The decree-holders have appealed.

5. The learned Advocate-General raised various contentions against the order of the Subordinate Judge. His arguments were: (a) that as these properties were purchased out of the income derived by the late Raja from his estate, they were his personal properties and as such liable to be proceeded against as being the assets in the hands of the respondents; (b) that the burden of proof is upon the respondents to show that these properties were incorporated with the zamindari which was conveyed by the trust; (c) that the Subordinate Judge was in error in considering the conduct of the late Raja as evidence that these properties were included in the deed of trust and (d) that the orders passed directing the attachment of the properties operated as res judicata against the respondents.

6. On the main question, both sides relied upon the language of the deed of trust. We do not think that the language affords much assistance one way or the other. In paragraph 2 it is stated:

all that ancestral and impartible estate or zamindari descending to a single heir... described in the first schedule here under written and commonly called or known as the Ramnad Zamindari

and also certain specified properties in the towns of Madura and Madras shall vest in the trustee. After specifically describing the bungalows in Madura and Madras, a clause is added in these terms:

together with the buildings thereon and appurtenances there to respectively.

7. It was conceded by the learned Advocate-General in the course of the argument that this clause refers to the whole of the zamindari and not simply to the specifically described bungalows in Madura and Madras. The question largely turns upon the meaning to be attributed to this clause. In Clause 4 it is stated that:

The right to reside with the members of his family in the several palaces and buildings comprised in the said lands and in the said premises described in the said first schedule is reserved for the settlor of the trust.

8. In paragraph 5 a reservation is made in favour of the settler of various devastanams, chattrams and kattalais with their appurtenances. In paragraph 20 a provision is made for the residence of the Diwan trustee in a suitable building 'forming part of the premises hereby assured.'

9. These are the clauses upon which reliance was placed in the course of the argument.

10. The learned Advocate-General contended that the properties in dispute cannot be said to be appurtenances to the zamindari. Mr. Grovindaraghava Ayyar, on the other hand, relied upon the fact, which is not disputed, that these purchased properties at one time belonged to the estate and contended that the repurchase by the deceased Raja is strong evidence that he intended to incorporate them with the zamindari. We are not prepared to lay much stress upon the fact that they originally formed part of the zamindari although it is conceivable that the purchaser might have entertained the idea that in repurchasing them he was restoring the properties to the estate.

11. Mr. Govindaraghava Ayyar also relied upon the fact that as regards items Nos. 2, 3 and 4, they were close to the ancient palace of the Raja of Ramnad, and that communications were opened from that palace to these new palaces, and argued that that fact made them appurtenances to the estate. We think this fact is also entitled to some consideration. But the main argument related to the admissibility of the evidence relating to the conduct of the late Raja in respect of these palaces. The learned Advocate-General argued that in construing the deed of trust, evidence as to events which happened subsequently should not be looked into. The point is not free from doubt, but after giving our best consideration to the question, we have come to the conclusion that the conduct of the parties to the deed can be legitimately looked into in construing the expression 'appurtenances' in the trust deed. Section 93 of the Evidence Act which was relied on by the appellant relates to what is known as 'patent ambiguity.' Sections 95, 96 and 97 refer to 'latent ambiguities.' We do not think that this is a case of 'patent ambiguity,' The illustrations to Section 93 show that the ambiguity apparent on the face of the document must be of such a nature as to make the document meaningless per se. In other words the executant should not have been sure of his meaning or intention. It cannot be said that the expressions 'buildings thereon' and 'appurtenances thereto' are ambiguous or defective in that sense. The expression 'appurtenances to an estate' is a common one. The real difficulty in such cases would be in ascertaining the properties included by that expression. We think proviso 6 to Section 92 is applicable to this case.

12. From the Indian authorities quoted before us no definite principles are deducible. But there are a few Privy Council decisions and some decisions of the English Courts which lend support to the proposition contended for by the respondents. In Tulshi Pershad Singh v. Ramnarain Singh I.L.R. (1886) Calc. 117 the Judicial Committee considered the meaning of the term 'istemrari mokurari' and their Lordships stated at page 130:

The Judges do not seem to have had in their minds that the other terms of the instrument, the circumstances under which it was made, or the subsequent conduct of the parties, might show the intention with sufficient certainty to enable the Courts to pronounce that the grant was perpetual.

13. This decision was followed by the learned Chief Justice and Coutts Trotter, J., in Venkataramanna v. Venkatapathi (1916) 28 M.L.J. 510 in construing the term 'kayam patta' in a deed. In Forbes v. Watt (1872) 2 Sc. & D. App. 214 it was held that:

where documents are obscure but where parties have long acted on the footing of a given practical construction the Court in the absence of better evidence, will accept that construction as correct.

14. Taylor in his work on Evidence, volume II, Section 1194, says:

It may be said broadly that extrinsic evidence of every material fact, which will enable the Court to ascertain the nature and qualities of an instrument, or in other words, to identify the persons to whom, and the things to which the instrument refers must of necessity be received.

15. And he quotes Bank of New Zealand v. Simpson (1900) A.C. 182 in support of that proposition. Another proposition seems well established, namely, that:

if the terms of a document be vague and general, or have diverse meanings, parol evidence will always be admissible of any extrinsic circumstances tending to show what person or persons or what things were intended by the party, or to ascertain his meaning in any other respect: see Grant v. Grant (1870) L.R. 5 C.P. 727

16. In Doe d. Pearson v. Ries (1832) 8 Bing. 178; s.c. 131 E.R. 369, Tindal, C.J., says:

Upon the general and leading principle in such cases, we are to look to the words of the instrument and to the acts of the parties to ascertain what their intention was; if the words of the instrument be ambiguous, we may call in aid acts done under it as a clue to the intention of the parties.

17. In Van Die men's Land Company v. Table Cape Marine Board (1906) A.C. 92, Lord Halsbury stated, referring to the subsequent possession taken under an instrument:

Why is it not evidence and cogent evidence when the taking possession of the particular piece of land is proved, and the continuance in possession before and after the grant is proved?

18. In Halsbury's Laws of England, volume 10, page 451, the proposition is thus stated:

If after other methods have been exhausted, there remains a doubt as to the effect of the instrument, it is permissible to give evidence of the acts done under it as a guide to the intention of the parties; in particular of acts done shortly after the date of the instrument.

19. As against these authorities, we were referred to Vissanji Sons & Co. v. Shapurji Burjorji I.L.R. (1912) Bom. 387 where at page 395 this observation occurs:

Everybody is now agreed that what took place after the execution of that document can have no bearing on the construction of it.

20. We do not think that this sentence enunciates any general principle of law. It is only intended to point out that in the particular case before the Judicial Committee, it was conceded that subsequent conduct was not to be relied upon for the construction of the document. In Achuta Ramaraju v. Subbaraju I.L.R. (1902) Mad. 7 an attempt was made to explain away a clear and unambiguous statement in a document by surrounding circumstances. Such evidence was rightly rejected. Nor is Balkishen Das v. W.F. Legge I.L.R. (1900) All. 149, inconsistent with the statement of law contained in Halsbury's laws of England, volume 10, page 45.

21. It is clear that where the language used in a document is clear, no evidence should be received to explain away the language. It is equally clear that where on the face of the document, the words are so ambiguous as to be incapable of conveying any definite meaning, evidence should not be given to remove the ambiguity or to supply the defects; but where the language used in a document is capable of being applied to a number of persons or things and the question is which of these persons or things was intended to be denoted by the expression used, evidence may be given to show what was the thing meant or who was the person intended. We think that the expression 'buildings thereon and appurtenances thereto' falls under the last of these clauses, and that consequently it is open to the Courts to consider the evidence relating to the conduct of the parties in construing that clause.

22. Now we shall consider the evidence which has been adduced in the case. Exhibits V(a), V(c) and V(f) show that Latham's bungalow was purchased for the Samasthanam. This evidence is admissible in any case. Exhibit V(h) shows that the property was regarded as belonging to the Samasthanam. Exhibit V(j) shows the receipt of rent by the trustees from this bungalow. The oral evidence is uncontradicted that immediately after the execution of the trust-deed the Diwan trustee took possession of all these five items of property including Latham's bungalow, received rents from two of them, spent money for the repair of all of them, employed men to look after them and otherwise treated them as part of the property which had been conveyed under the deed of trust. The Colonel's bungalow was in the occupation of the Diwan trustee and, as we pointed out before, the provision in the deed of trust is that the Diwan trustee should be in one of the bungalows conveyed by the deed of trust. There are II and II(a) relating to repairs, II(b), relating to the sale-proceeds of coconuts and III(a) relating to establishment charges. There are also statements made by the Raja which undoubtedly show that he believed he had conveyed these properties by the deed of trust, Exhibit V(ff) and Exhibit VI. If evidence of subsequent conduct is receivable in evidence, there can be no manner of doubt that the five items of property were taken possession of by the trustee, were regarded as being part of the zamindari, and were dealt with as property in which the settlor had no manner of subsisting interest. Even apart from the evidence as to conduct, we are of opinion that there is evidence of possession from 1895, the date of the deed of trust, up to 1914, which possession was certainly not on behalf of the late Raja but on behalf of the present respondents. It was contended that this possession, even if the trust deed did not include these properties, was adverse to the Raja and that the present respondents had acquired a prescriptive title to them. There is much force in this contention. On the whole, we have come to the conclusion that these properties were conveyed by the deed of trust and were therefore not assets of the deceased Raja which could be proceeded against in execution.

23. Before concluding this part of the case we may say, we agree with the learned Advocate-General in his contention that the onus is upon the respondents to show that the properties purchased by the late Raja were incorporated with the zamindari. Parbati Kumari Debi v. Jagadis Chunder Dhabal I.L.R. (1902) Calc. 433, Janki Prasad Singh v. Dwarka Prasad Singh I.L.R. (1913) All. 391 and Murbaza Hassain Khan v. Mohammad Yassin Ali Khan (1916) 31 M.L.J. 804 establish this proposition beyond doubt. The decision in Ramanayya v. Rangappayya I.L.R. (1894) Mad. 144 related to property which had descended to an heir after purchase. It was held that the fact that it descended in the same way as the zamindari was evidence that the purchase was incorporated with the zamindari. We think that the respondents have discharged the onus which lay on them. We are satisfied that the acts of ownership exercised by the trustee and the other evidence to which we have referred show that these five items of property form part of the estate conveyed by the deed of trust.

24. The second question argued by the learned Advocate-General related to the plea of res judicata. The order to attach was made on the 5th August 1913. The present respondents filed a petition after that order to set aside the attachment. If we understood the learned Advocate-General aright, his contention was that every stage in an execution proceeding is complete by itself, and if not objected to at the time, it would operate as res judicata at a subsequent stage of the same proceeding, in this case, it must be remembered that before the execution application was finally disposed of, the attachment was objected to by the respondents. It is against the orders dealing with those objections that these appeals have been preferred. It is true that the principle of res judicata has been extended to execution, proceedings ever since the decision in Mungul Pershad Dichit v. Girja Kant Lahiri I.L.R. (1882) Calc. 51. It was held in that case, if after notice, a decision was passed on an execution petition, it would not be open to the parties to object to that decision when a subsequent application was presented. That decision has been followed in Subbiah Naicker v. Ramanathan Chettiar I.L.R. (1914) Mad. 462 and in Rameshwar Singh v. Rateshwar Singh alias Rahim Ramanji (1913) 17 C.L.J. 125. But there is no authority for the proposition that in the course of the same application an order passed at one stage of it would be res judicata at its further stage. Reliance was placed on certain observations in Venkatagiri Iyer v. Sadagopachariar : (1904)14MLJ359 . We do not think that is an authority for the proposition now advanced. As we had occasion to remark on more than one occasion recently, the principle of constructive res judicata should be very cautiously applied to execution applications. In the first place, the legislature has not enacted specifically that the rule of res judicata applies to execution proceedings. The reason is obvious. It is open to a decree-holder to proceed piecemeal with his execution. He is not bound to proceed against all the properties comprised in the decree at once, and consequently the principle underlying the general rule of res judicata is not in terms applicable to execution proceedings. At the same time, as pointed out by the Judicial Committee, parties should not be allowed to agitate the same, question after it has been once decided; and this dictum of their Lordships has been extended to cases where the parties had an opportunity to object to the decision, but did not avail themselves of that opportunity. One principle seems to be clear, and that is, that the party who if sought to be affected by the bar of res judicata should have notice of the point which is likely to be decided against him and should have an opportunity of putting forward his contentions against such a decision. In the present case, notice went to the respondents to show cause why they should not be brought on the record as the legal representatives of the deceased judgment debtor for the purpose of execution. They had no notice that any particular property was going to be attached. When they came to know that an order was passed to attach the properties, they immediately filed a petition praying for the cancellation of that order. We are satisfied that the respondents are not estopped from raising their contention. We must therefore overrule this plea.

25. As we said before, these two points are common to all the civil miscellaneous appeals. A further point was argued by Mr. Bashyam Ayyangar in Civil Miscellaneous Appeal No. 194 and it was this: After the attachment in pursuance of the High Court decree, the late Raja died. Thereupon an application was made to bring in the respondents as his legal representatives. No objection was raised to their being brought on the record as such. The argument of the learned Vakil was that the failure to object estopped the present respondents from contesting that the properties in their hands were not liable to be proceeded against under the decree. We are wholly unable to accept this contention. When notice is served to show cause why certain persons should not be brought on the record as legal representatives, it is not their duty to put forward all the defences open to them in their individual capacity. It is only when execution is sought against them in their individual capacity that they are bound to resist the attempt by patting forward all their personal defences. We do not think Seth Chand Mal v. Durga Dei I.L.R. (1890) All. 313 is any authority for the contention now put forward. We overrule this contention.

26. In Civil Miscellaneous Appeal No. 290, the same additional contention was raised. In Civil Miscellaneous Appeal No. 103, Mr. Purushottama Ayyar raised a further point that the decree itself was obtained in the High Court after the death of the late Raja against the respondents as his legal representatives. It is true that the language of the decree is somewhat obscure, but on a previous occasion, the question whether this decree made the respondents personally liable was considered by the Subordinate Judge of Madura, and he held that they were not personally liable. No appeal was preferred against that decision, and consequently it is binding on the plaintiff, the present appellant.

27. For these reasons, we are of opinion that the order of the Subordinate Judge refusing execution against the five items of properties is right, and we dismiss these appeals.

28. The learned Advocate-General at the opening stated that a large number of documents have been printed unnecessarily, and that in case his client failed, they should not be ordered to bear the costs of this unnecessary printing. We must observe that many of the documents placed before us should not have been printed. To most of them no reference was made in the course of the argument. We therefore hold that the respondents are entitled only to one-fourth of the costs of printing the documents; but are entitled to vakil's fees in full and to the costs of the pleadings.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //