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Rajagopala Pandurathar Vs. K. Thirupathia Pillai and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in72Ind.Cas.258
AppellantRajagopala Pandurathar
RespondentK. Thirupathia Pillai and anr.
Cases ReferredIn Asghar Reza Khan v. Mahomed Mehdi Hossein Khan
Excerpt:
construction of document - mortgage-deed--mortgage of village--residential house, inclusion of. - - 1098 it was clearly laid down that the doctrine that the sale of a zemindari included also buildings situated within the zemindari is applicable only in the absence of evidence indicating an intention to exclude them from the sale. and even apart from this he has not satisfied us that at this stage we can interfere with the portion of the order relating to the terms of the proclamation......was held that in the absence of proof that a building belonging to the zemindar was excluded from sale, the sale of his 'rights and interests' in the village passed such building to the auction-purchaser. similarly in banke lal v. jagat narain 9 ind. dec. 1143 it was held that a kothi or other building situate within a zemindari area would be included in and pass with the zemindari unless the contrary is shown by evidence of the circumstances from which it may. properly be inferred that the building is not an appurtenance of the zemindari. in asghar rexa khan v. mahomad mehdi hossein khan 30 c. 556 : 30 i.a. 71 : 7 c.w.n. 482 : 8 sar. p.c.j. 439 (p.c.) their lordships of the judicial committee held that the deed which contained no words of exception or reservation and was ample in point.....
Judgment:

Venkatasubba Rao, J.

1. The dispute turns upon the construction of the mortgage-deed on which the suit was based. It has been conceded before us that the decree directs the sale of the property described in the mortgage-deed. The first defendant contends that his residence or the buildings constituting the palace are not included in the description contained in the decree, and cannot, therefore, be sold under it. On the other hand, the plaintiff argues that these buildings should not be excluded from the sale. To deal with the respective contentions it is necessary to have an accurate rendering of certain portions of the document which is in Tamil.

2. In the body of the document there is the following passage:--'We have mortgaged to you for Rs. 15,000 the village of Kovillur which is included in the four boundaries given below and which is attached to our zemindari and which ancestrally belongs to us and is in our enjoyment...and which is capable of yielding an annual Melwaram kist of Rs. 3,000.' So far the description is general and no portion of the zemindari is excluded.

3. At the foot of the document is given a complete description of the mortgaged property. I give below a translation of what occurs at the close of the document:

Description of property

The four boundaries of the village of Kovilur attached to Ghandharvakota

West of....

North of....

East of....

South of....

The village of Kovilur situate within these four boundaries is inclusive of poramboke, Nanja 52 Velis 5 Mahs and 33 Kulis Ptmja 204 Velis 2 Mahs and 98 Kulis. The total of Nanja and Punja is 256 Velis 8 Mahs and 30 Kulis.

4. Excluding the lands sold by auction up to date in respect of the maintenance of my mother, the remaining lands and all the rights and privileges I possess in the waste lands, poramboke and other lands attached thereto, all kinds of trees, topes, wells, ponds, tank bunds, fruit trees, wood trees, foot paths, elevated and low portions etc., be they a little more or a little less have been given as security.

5. It is admitted that the palace buildings are in the village of Kovilur and are within the four boundaries mentioned above. But the general words in the body of the document are qualified by the description given at the foot of it. There is a clear enumeration of what the village of Kovilur within the aforesaid four boundaries consists of. There is no mention of the palace buildings. Although no doubt the village of Kovilur was stated in the document to be the subject of the mortgage, the parties went further and described what according to them was the village of Kovilur which was intended to be mortgaged and it seems to me that the words in the body of the document must be read subject to the more precise description given, which must be taken as controlling the general words occurring in the earlier portion.

6. I may state that it has not been argued on behalf of the plaintiff that the building is comprised within the total area mentioned of the nanjah and punjdh lands, namely, 256 Velies 8 Mahs and 30 Kulies. But the only argument advanced is that the palace buildings must be regarded as included in the expression the remaining lands or 'poramboke and other lands' or the words 'etc'. I find it impossible to hold that the words 'the remaining lands' or 'poramboke and other lands attached thereto (remaining lands)' can be regarded as including the residential building of the zemindar.

7. Turning to the words 'etc' they follow an enumeration of specific things beginning with 'all kinds of trees' having some common characteristic, and the words should be restricted to things of the same nature as those which have been already mentioned. In such a case the role of ejusdem generis will apply and the residential building cannot be said to be ejusdem generis with the things already enumerated.

8. A being seized of a manor and other real estate in the county of M, mortgaged the last mentioned real estate to B., by a subsequent deed he mortgaged to C 'all the hereditaments and premises comprised in the previous mortgage, all the other lands tenements and hereditaments (if any) in the county of M' of which he was seized. It was held that the manor did not pass, Vice-Chancellor Wood observing as follows:-'I think the clear intent and purport must be held to be simply a sweeping in of other property ejusdem generis with the property which had been so conveyed, if any there should be; certainly not to include a copyhold property or manorial rights in property of a totally different character from anything attempted to be conveyed or specified throughout the deed.' Rooke v. Kensington : 2 K. & J. 753 : 69 E.R. 986 : In Abu Hasan v. Ramzan Ali 4 A. 381 : A.W.N. (1882) 73 : it was held that in the absence of proof that a building belonging to the zemindar was excluded from sale, the sale of his 'rights and interests' in the village passed such building to the auction-purchaser. Similarly in Banke Lal v. Jagat Narain 9 Ind. Dec. 1143 it was held that a kothi or other building situate within a zemindari area would be included in and pass with the zemindari unless the contrary is shown by evidence of the circumstances from which it may. properly be inferred that the building is not an appurtenance of the zemindari. In Asghar Rexa Khan v. Mahomad Mehdi Hossein Khan 30 C. 556 : 30 I.A. 71 : 7 C.W.N. 482 : 8 Sar. P.C.J. 439 (P.C.) their lordships of the Judicial Committee held that the deed which contained no words of exception or reservation and was ample in point of language to pass the land on which the Bazar was situated, did pass the same in the absence of words showing an intention to exclude it.

9. These cases are of little assistance to the plaintiff. It is no doubt true that the palace building is an appurtenance to the zemindari but the rule laid down in these cases is that there is a presumption in favour of the inclusion of such a building unless there is anything to show that it was excluded expressly or by implication. See Abu Hasan v. Ramzan Ali 4 A. 381 : A.W.N. (1882) 73 : already referred to. In Sakhawat Ali v. Muhammad Abdul Karim Khan 31 Ind. Cas. 809 : 38 A. 59 : 13 A.L.J. 1098 it was clearly laid down that the doctrine that the sale of a zemindari included also buildings situated within the zemindari is applicable only in the absence of evidence indicating an intention to exclude them from the sale.

10. The determination of the question solely depends upon the right construction of the deed of mortgage and, in my opinion, there is an indication of an intention to exclude the residence of the zemindar from the security.

11. There was a subsidiary argument advanced before us on behalf of the first defendant, which related to certain objections to the terms of the proclamation of sale. It has not been shown that* the portion to which exception has been taken is likely to cause any prejudice to the first defendant; and even apart from this he has not satisfied us that at this stage we can interfere with the portion of the order relating to the terms of the proclamation.

12. In the result we allow the appeal to the extent of permitting the proclamation to be amended by excluding the palace building of the zemindar, and in other respects the appeals fails. Each party will bear his own costs of this appeal.

Spencer, J.

13. I agree. The specification. of the mortgaged property at the f dot of the mortgage-deed obviously controls the words in the body of the deed 'the village of Kovilur which is included whithin the under mentioned boundaries, which is attached to our zemin, which belongs to us ancestrally and is, in our enjoyment, and which is made liable under Nagappa Chettiar's decree and is capable of yielding an annual melwaram kist of Rs. 3,000.

14. If what was mortgaged was expressed as all that lies within the four boundaries' given I should hold that the family, residence of the zemindar, or palace as it is called, was included; but it cannot he part of the 256 Velies 8 Mahs and 30 Kulis of wet and dry fields, and as there is a sweeping clause following the specification of cultivable lands, the other items should be taken to be ejusdem generis with those that are specified. I do not think such an important item as a family residence can have been intended to be covered by the description given in these words:--'the rest of the lands, be they a little more or a little less, together with the waste lands, poramboke and other lands, all sorts of trees, topes, wells, ponds, tanks, embankments, fruit trees, timber trees, foot paths, hills and dales, etc.' In this detailed description the omission of house sites, houses and other superstructures is conspicuous. As for the cases quoted, none of them is on all fours with this. In Abu Hasan v. Ramzan Ali A.W.N. (1882) 73 : 2 Ind. Dec. 997 it was held that the Killa or Fort was part and parcel of the zemindari rights and interests in the village of Hajipur. There was no specification of what was meant by the village of Hajipur, as there is here of the village of Kovilur. In Banke Lal v. Jagat Narain 22 A. 168 : the determination of the question whether the Kothi (or house) passed by the sale turned principally on a consideration of what was attached in the warrant of attachment. In Asghar Reza Khan v. Mahomed Mehdi Hossein Khan 30 C. 556 : 30 I.A. 71 : 'bazars' were included in the operative part of, the mortgage-deed. So the Judicial Committee held that the interests of the defendant zemindar in the Kutugunge bazar passed by the sale.

15. Ground No. 4 in the memorandum of appeal raises a question as to the terms of the sale-proclamation. On this point no appeal lies. I agree with the order proposed.


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