The plaintiff who was non-suited before both the Courts below have preferred the present appeal.
2. The suit was filed for declaration of title with respect to the 'A' Schedule property and for recovery of possession of the 'B' and 'C' Schedule properties which formed part of the 'A' Schedule property from the defendants.
3. The plaintiff has contended that the suit 'A' Schedule property originally belonged to Thayarammal, the grand mother of the first plaintiff. She executed a settlement deed dated 19.08.1948 creating a life estate in favour of daughter Sundarammal, the mother of the plaintiff and vesting remainder in favour of the plaintiff in respect of the suit 'A' Schedule property. The plaintiff has become the absolute owner of the suit property, after the demise of his mother Sundarammal. The first and third defendants are the elder sisters of the plaintiff. The second and fourth defendants are the sons of the first and third defendants respectively. The defendants came to occupy 'B' and 'C' Schedule properties with the leave and licence granted by the plaintiff and his mother Sundarammal. Alleging that the defendants did not positively respond to the demand made by the plaintiff to effect the 'B' and 'C' Schedule property, the plaintiff has sought for the aforesaid reliefs.
4. The written statement filed by the first defendant was adopted by the second defendant. He has contended that Thayarammal gave the suit property to her daughter Sundarammal by virtue of the deed dated 19.08.1948 as a Sridhana. The first defendant is entitled to one-third share in the Sridhana property of Sundarammal, after her demise in the year 1979. The first defendant denies the allegation that she came to occupy the suit property on the basis of leave and licence granted by the plaintiff and her mother Sundarammal. It is contended that the first defendant has been in possession and enjoyment of the suit property ever since her marriage. The first defendant is in possession of a portion of the suit property in her capacity as co-owner, having put a hut over there. She also perfected title by adverse possession of 15 cents in her possession, she claims.
5. The third defendant in her written statement has contended that the suit property was given as a Sridhana to Sundarammal by her mother. She claimed that she has been in possession and enjoyment of a portion of the suit property for some decades. She also claimed one-third share in the suit property and has contended that she had perfected title to a portion of the suit property in her possession by adverse possession.
6. The trial Court returned a finding that the disputed document Ex.A1 is only a Sridhana deed and therefore Sundarammal became the absolute owner of the suit property. The latter clause found in the said document giving absolute right to the plaintiff is found to be in direct conflict with the earlier clause and therefore the same has to be ignored. The trial Court ultimately decided that the plaintiff, D1 and D3 are each entitled to one-third share in the suit 'A' Schedule property.
7. In the appeal preferred by the plaintiff, the first appellate Court returned a finding that though the plaintiff's mother was not given absolute right under the document under Ex.A1, by virtue of the operation of Section 14 (1) of the Hindu Succession Act, the limited estate given under Ex.A1 to Sundarammal blossomed into absolute right. By and large, the Judgment of the trial Court was confirmed by the first appellate Court.
8. At the time of the admission of the second appeal the following substantial questions of law were formulated for determination:
1. Whether the dis-position of the property through Ex.A1 Sridhana Deed had conferred any pre-existing right on the mother of the plaintiff so as to attract
Section 14 (1) of the Hindu Succession Act or Ex.A1 is purely a gift deed which conferred a right on the mother of the plaintiff for the first time in order to attract
Section 14 (2) of the Hindu Succession Act.
2. Whether the construction of Ex.A1 Sridhana Deed confers any absolute right in its earlier portion since the words written in those portion were distinguished by subsequent conferment of absolute right to the plaintiff in the form of vested remainder.
3. Whether Ex.A1 confers only a limited estate to the mother of the plaintiff.
9. The plaintiff would claim that the plaintiff was given absolute right and title over the suit property by the settlor Thayarammal and only life interest in the form of Sridhana was given to Sundarammal, the daughter of Thayarammal. Per contra, the defendants would claim that the suit property was given as Sridhana to Sundarammal. Therefore, the plaintiff has got no absolute right or title over the suit property.
10. The learned counsel appearing for the plaintiff/appellant would submit that Ex.A1 appears to be a Will executed by Thayarammal giving life estate to Sundarammal and vesting the remainder on the plaintiff. He would submit that at any rate a harmonious reading of Ex.A1 would go to establish that Thayarammal the executant under Ex.A1 had given the absolute right and title over the suit property only to the plaintiff Ethirajulu. The latter clause found in Ex.A1 cannot be violently dissected from the former clause to give a different meaning to the former clause found therein. Even otherwise a right has been conferred under Ex.A1 to Sundarammal for the first time. It does not speak about the pre-existing right of Sundarammal. As the pre-existing right of Sundarammal was not dealt under Ex.A1 and it was only for the first time the right has been created under Ex.A1,
Section 14 (1) of the Hindu Succession Act will have no application, but
Section 14 (2) alone will have application to the facts and circumstances of this case. At any rate he would submit that the rival parties have contended differently as to the nature of the document Ex.A1. It is the duty of the Court to interpret the document Ex.A1 irrespective of the nomenclature assigned to the said document. Therefore, he would submit that the Courts below have completely erred and as a result of which a perverse finding have been rendered in this case by both the Courts below.
11. The learned counsel appearing for the respondents would submit that the theory of permissive occupation projected by the plaintiff has not been established by them. The documents produced on the side of the defendants would go to show that they have been in possession and enjoyment of the suit property right from the year 1967. No explanation was forthcoming from the plaintiff as to how the defendants got into possession of part of the property way back in the year 1967 itself. Describing Ex.A1 as a gift deed, the learned counsel appearing for the defendants would submit that the absolute right had been given to Sundarammal by Thayarammal under Ex.A1 as per the initial clause found thereunder. A contradictory disposition found in the latter clause will have to be ignored by the Court of law. Referring to the memorandum of appeal, the learned counsel appearing for the defendants would submit that the plaintiff completely forgetting the fact that the executant of Ex.A1 had not provided any clause thereunder to give effect to the document Ex.A1 after the demise of Thayarammal, projected a case that Ex.A1 is a Will. Therefore, he would submit that both the Courts below have rightly determined properly interpreting Ex.A1 that absolute right was given by Thayarammal only to Sundarammal, her daughter and not to Ethirajulu, the plaintiff herein who is her grandson.
12. Firstly, this Court will have to find whether the Courts below have correctly interpreted the document Ex.A1. Ex.A1 has been described as a Sridhana deed. Thayarammal having specifically adverted to the fact that she had no male descendant had given the suit property as Sridhana only for her life time. Even in the first clause she had not provided that Sundarammal should have absolute right and title over the suit property. Her intention to give the suit property as Sridhana for the life time of Sundarammal has been expressed in the first clause found under Ex.A1. Even at the very beginning she had been confronted with the unpleasant situation that she had no male descendant while executing Ex.A1. The latter portion of Ex.A1 would clearly show that she had given vent to the aforesaid confrontation that she encountered on account of lack of male descendant. In a very unambiguous terms she has categorically stated that she gives the absolute right and title over the property only to Ethirajulu, the plaintiff herein who happened to be the son of her daughter Sundarammal. She had infact directed him to do all the obsequies on her demise. While giving absolute right to the plaintiff after reserving life estate to her daughter Sundarammal, Thayarammal mandated her daughter Sundarammal not to encumber the suit property either by executing mortgage or by alienating the property.
13. As rightly pointed out by the learned counsel appearing for the plaintiff, a harmonious reading will have to be given to Ex.A1. A part of the deed cannot be dissected violently to give a different meaning. If we read the entire document in a harmonious manner, the only conclusion we can arrive at is that Thayarammal meant to give only life estate to her daughter Sundarammal and absolute right over the suit property to her grand son Ethirajulu, the plaintiff herein. On a careful reading of Ex.A1, I find that there is no conflicting provisions found under Ex.A1. Ex.A1 has been very carefully drafted in such a way that the possession and enjoyment of the suit property as Sridhana till the life time of Sundarammal was given to Sundarammal and the absolute right on the demise of Sundarammal was given to Ethirajulu. In the Sridhana clause found under Ex.A1 she has not stated therein that absolute right has been given to her daughter Sundarammal. She has specifically stated that Sundarammal shall enjoy the property which was given as Sridhana. While dealing with the absolute right given to her grandson, she has quite categorically stated that he should have the property absolutely for generation with all rights and title attendant to it.
14. The learned counsel appearing for the plaintiff cited the decision of the Supreme Court in Ramkishorelal and another Vs. Kamalnarayan AIR 1963 SC 890 it appears the very same decision was cited by the other side before the Courts below. It is useful to refer to paragraph 12 of the aforesaid Judgment which reads as follows:
It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g. Where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to beheld to be void.
The aforesaid ratio stresses the point that the intention of the parties to the instrument should be first ascertained by the Court. The words found in the document should be given first a natural meaning so as to ascertain the intention of the executant. It has also been stressed that the whole document should be adverted to by the Court before giving interpretation to the document. By the way it has been held that if the Court comes to a decision that there is a clear conflict between one part of the document with the other, the latter conflicting clause found in the document should be ignored.
15. On a careful perusal of Ex.A1, I have come to a decision that there is no conflicting clauses found in Ex.A1. The intention of the executant is very clear that though she was pleased to give Sridhana right to her daughter till life time, she had intended to give absolute right and title to her grandson.
16. The first appellate Court gained a wrong impression while interpreting the instrument of Ex.A1 that a pre-existing right was dealt by Thayarammal under Ex.A1. Firstly, it is found that Thayarammal, the mother of Sundarammal makes some Sridhana provision for the first time under Ex.A1 to her daughter. Sundarammal, being the daughter of Thayarammal cannot have pre-existing right either of maintanence or of Sridhana right. If at all the husband of Sundarammmal had given limited right to his wife Sundarammal making provision for her maintenance, such a limited right would blossom under the provision of 14 (1) of the Hindu Succession Act, into absolute right. The Sridhana right was for the first time created by mother in favour of her daughter under Ex.A1. Under such circumstances the provision under
Section 14 (1) will have no application and as rightly pointed out by the learned counsel appearing for the plaintiff
Section 14 (2) alone will have application.
Section 14 (2) is found to be an exception to
Section 14 (1) which provides scope for a limited right to blossom into absolute right. Under the gift deed Ex.A1 it is found that Sundarammal has got right to enjoy the property till her life time for the first time under Ex.A1. Such a right limited under Ex.A1 would not get blossomed into absolute right as per the exception found under
Section 14 (2). It is held that the first appellate Court was under the wrong impression that a pre-existing of Sundarammal was dealt under Ex.A1 to apply the provision under
Section 14 (1) of the Hindu Succession Act.
17. Admittedly, the first and third defendants have been in possession and enjoyment of a portion of the suit property. Plaintiff would contend that they were inducted into possession on permission given by the plaintiff and his mother about six years before filing of the suit, whereas the first and third defendants would contend that they have been in possession and enjoyment of the property right from the date of their marriage. At any rate they have produced document to show that they been in possession and enjoyment of the property atleast from the year 1967.
18. The first and third defendants claim right over the suit property only through their mother. Now it has been held that their mother Sundarammal had no absolute right over the suit property and that it is only the plaintiff who has got absolute right over the suit property. It is true that the plaintiff have not produced any convincing evidence to establish that the plaintiff and his mother let the first and third defendants into possession of a portion of the suit property on leave and licence basis. The plaintiff might not have established that the first and third defendants were inducted on a leave and licence basis. After all, the first and third defendants are not strangers to the plaintiff. The plaintiff is none other than the brother of the first and third defendants and Sundarammal is their mother. It is quite natural for the family members to continue to occupy the property of the other family members. Claiming that their mother is the absolute owner of the suit property, it appears that they continue to posses a part of the suit property.
19. At best, the first and third defendants may claim adverse possession, but in this case it is found that the first and third defendants have categorically taken up a stand that they started enjoying the suit property in their capacity as co-owner. The co-owner cannot set up a plea of adverse possession. Here is the case where the defendants set up a plea that they are entitled to one-third share in the suit property. Such being the contention, they cannot validly set up a plea for adverse possession.
20. It is found that the Courts below have completely failed to find that the executant infact intended to give the property to his daughter only for her life time and absolute right over the suit property to the plaintiff. The Courts below have failed to read the document in its entirety to know what actually was intended by the executant. The Courts below had not sat in the arm chair of the executant to pierce through her intention while executing the document Ex.A1.
21. No absolute right was created in favour of Sundarammal in the first portion of the document. The clause relating to conferment of absolute right has occurred only in the latter portion of the document Ex.A1. Therefore,
Section 11 of the Transfer of Property Act, will have no application to the facts and circumstances of this case. This Court has already held that the execption provided under
Section 14(2) of the Hindu Succession Act, would squarely apply to gift deed executed by Thayarammal under Ex.A1, inasmuch as no pre-existing right of Sundarammal was dealt by Thayarammal under Ex.A1. As far as the applicability of the provision under Section 88 of the Indian Succession Act, it is held that the aforesaid provision of law will not apply to the present case inasmuch as it has been categorically held by this Court that Ex.A1 is only a gift deed and not a Will.
22. In view of the above facts and circumstances the Judgments of the Courts below are set aside and the appeal is allowed granting a decree for declaration of title with respect to 'A' Schedule property and recovery of possession with respect of 'B' and 'C' Schedule properties to the plaintiff. The first and third defendants and their legal representatives are directed to deliver possession of 'B' and 'C' Schedule properties to the plaintiff within two months from the date of receipt of this Judgment. Considering the relationship of the parties each party is directed to bear the costs.
23.12.2009 Index : Yes Internet : Yes ps To
1. The Sub Court, Tiruvallur.
2.The District Munsif, Ponneri.
M.JEYAPAUL.J., ps S.A.No.508 of 1997 23.12.2009