Narayana Kurup Saraswathy Amma v. Bhavani Rajamma — 1997 DIGILAW 197 (KER)

Judgment :- K.V. Sankaranarayanan, J. Late Padmanabha Kurup, Kesava Kurup, Narayana Kurup, Ramakrishna Kurup, Nani Amma and Janaki Amma were brothers and sisters and members of a Nair family. The family had some ancestral property. Padmanabha Kurup had acquired some properties on his own. The members of the family including the children of the female members entered into a partition evidenced by Ext. Al in the year 1956. For purposes of partition, apart from the family properties, the acquisitions of Padmanabha Kurup were also put in the hotchpots and treated as family property. Padmanabha Kurup who was a bachelor, and his brother Narayana Kurup were together allotted the 'A' Scheduled properties. Bhavani Amma, a daughter of Nani Amma and her children were together allotted the 'H' scheduled to the partition deed. B, C, D and E scheduled properties were set apart to Kesava Kurup, Ramakrishna Kurup, Nani Amma and Janaki Amma respectively. The F Scheduled property was allotted to Janardhana Kurup, one of the sons of Nani Amma and G and I schedules to Govinda Kurup and Kamalakshi Amma, two other members of the family respectively. Ext. Al is a copy of the partition deed. Clause 8 reads: 2. The A Scheduled property m the partition deed consists or 67 cents or land in Survey No. 3459 in Navayikulam Village and the buildings therein. This property is the subject matter of the suit. Plaintiffs who are the respondents in this appeal are the children of Bhavani Amma, the allottee of H Schedule in the partition deed. By the suit, they sought recovery of possession of the plaint schedule property on the basis of their title by virtue of the provisions of clause 9 in the partition deed noticed above. Padmanabha Kurup, the first party to the partition deed, died in the year 1976. Narayana Kurup, the third executant to the partition deed, died on 17.8.1979. Plaintiffs claimed that on the death of executants 1 and 3 in the partition deed, the provisions in clause 9 came into effect and they became entitled to the property. The property is in the possession of the defendants who are the legal representatives of Narayana Kurup, the third executant. They resisted the suit. Defendants 1, 3. 5, 6,9 and 10 filed a joint written statement. 4th defendant filed a separate written statement. The property is in the possession of the defendants who are the legal representatives of Narayana Kurup, the third executant. They resisted the suit. Defendants 1, 3. 5, 6,9 and 10 filed a joint written statement. 4th defendant filed a separate written statement. The defendants contended that by the provisions in clause 8 of the partition deed, the property had been set apart to executants 1 and 3 with absolute rights and so, the subsequent clause that the A Schedule property will merge with the H schedule on the death of executants 1 and 3 had no legal effect. It must be ignored as a mere pious wish of the parties. Defendants also contended that Padmanabha Kurup executed a will in favour of Narayana Kurup on 8.8.1975 and Narayana Kurup in turn executed a will in favour of the 4th respondent on 4.8.1979 before his' death on 17.8.1979. Defendants also contended that they had effected valuable improvements in the property. 3. Learned Sub Judge, after considering the evidence adduced by both sides, came to the conclusion that the provisions in the partition deed that the A schedule will vest in the H schedule was valid, and so the property has devolved on Bhavani Amma and her children and granted a decree for recovery of possession with mesne profits. The The next clause 9 reads: decision has been affirmed by this Court by a learned single judge in A.S.No. 95 of 1988. The correctness of the decision of the learned single judge is canvassed in this appeal. 4. The main contention raised by the defendants/ appellants in the trial court was that by virtue of the provisions in clause 8 of the partition deed, an absolute estate has been created in favour of executants 1 and 3, who were allotted the A schedule to the partition deed, and so, the subsequent clause that the property will vest in the H schedule after their death, has no legal or binding force and it must be ignored. It was contended that Padmanabha Kurup and Narayana Kurup, the allottees of the A schedule to the partition deed, took the property with absolute rights and subsequently, the first executant executed a Will in favour of the 3rd executant and 3rd executant in turn executed a Will in favour of the 4th defendant. The learned Sub Judge considered Ext. It was contended that Padmanabha Kurup and Narayana Kurup, the allottees of the A schedule to the partition deed, took the property with absolute rights and subsequently, the first executant executed a Will in favour of the 3rd executant and 3rd executant in turn executed a Will in favour of the 4th defendant. The learned Sub Judge considered Ext. Al document as a whole and came to the conclusion that notwithstanding the provisions in clause 8, the provision in the subsequent clause 9 was valid and binding on the parties. Learned Sub Judge noted that Padmanabha Kurup, who had redeemed his family properties and also included his own self-acquisitions and made them available for partition, had not intended to retain the A schedule property for himself. Learned Sub Judge held that the provisions in Clause 9 had the incidents of a gift in favour of the allottees of H schedule on the death of parties 1 and 3 and the Clause was valid. The learned Sub Judge also held that the two Wills set up by the defendants namely the original of Ext. B2 allegedly executed by Padmanabha Kurup and Ext. B1 alleged to be executed by Narayana Kurup had not been properly proved and that the defendants were not entitled to any relief based on those wills. 5. In appeal to this court, the learned single judge also came to the conclusion that executants 1 and 3 gifted their right in the A schedule property in favour of the allottees of H Schedule reserving only a right for themselves to enjoy that property till their death with the further provision that the 25 cents portion would be enjoyed by Bhavani Amma and her lineal descendants in the female line, without any right of alienation. 6. The validity of the second part of clause 9, which restricts alienation of the 25 cents portion and the building therein and reserves a right for the destitute women in the family for residence, does not arise for consideration at present. The question may arise only if allottees of H schedule transfer the properties and there is any claim from any destitute woman in the family. The question may arise only if allottees of H schedule transfer the properties and there is any claim from any destitute woman in the family. The contention of the learned counsel for the appellants before us is also that by the provision in clause 8 of the partition deed, an absolute estate has been created in favour of Padmanabha Kurup and Narayana Kurup and so the subsequent clause 9 cannot divest that right and it must be ignored as a pious wish only. Both sides have placed reliance on the decision in Ram kishore Lai v. Kamal Narain (AIR 1963 SC 890). Therein, the learned judges have observed: "The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again even where a particular word has, to a trained conveyance, a clear and definite significance and one can be sure about the sense in which such conveyance would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of convincing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the documents and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given (See Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo - AIR 1960 sc 953).it is clear however, that an attempt should always be made to read the two parts of the documents harmoniously, if possible. It is only when this is not possible, eg. 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 be held to be void". 7. According to learned counsel, there is a clear conflict between the provisions in clauses 8 & 9 and so the earlier clause vesting absolute right in executants 1 and 3 must prevail. 8. A reading of Ext. Al partition deed shows that Cl. 8, after giving the details of allotment of properties in different schedules to the different sets of executants, contains a general provision that the allottees must take the properties in the respective schedules, get mutation effected and pay tax and enjoy the property free from claims from other parties as absolute owners This is immediately followed by Clause 9 which states that the A schedule property will vest in the H Schedule on the death of executants 1 and 3, and it should be enjoyed by the H schedule allottees in the manner stated. There also, there is a direction that H schedule allottees should get mutation effected and possess and enjoy the property, and there is a restriction regarding the 25 cents portion and the building also. It is not possible to accept the argument of the learned counsel that Clause 9 does not have the necessary words of disposition and there is no bequest by the clause. The intention, that the properties must go to the allottees of H schedule on the death of executants 1 and 3 is explicit. It is not possible to accept the argument of the learned counsel that Clause 9 does not have the necessary words of disposition and there is no bequest by the clause. The intention, that the properties must go to the allottees of H schedule on the death of executants 1 and 3 is explicit. It is true that in case of a conflict, the earlier disposition of absolute title should prevail, and later directions of disposition or restrictions should be ignored. But the decision of the Supreme Court quoted above makes it clear that an attempt should always be made to read the two parts of the documents harmoniously as far as possible. That is what the trial court and the learned single judge have done in this matter. 9. In this connection, it will be useful to note some earlier decisions of this Court in similar circumstances. In Krishnan Kumaran v. Mathew J. Mattom (1957 KLT 407) a document with somewhat similar provisions came up for consideration. In that document, Clause 4 provided for allotment of the disputed property in favour of one Cheeru, wife of Raman. A subsequent clause 10 provided that Cheeru should not deal with the property by sale or otherwise during Raman's life time. and after her, the property should devolve on her four brothers particularly named. Clause 13 concluded by stating that the various allottees under the document were to take the properties free of other persons' claims and absolutely. In the decision, the learned judges have taken note of an earlier decision of the Travancore Cochin High Court in Subramanian v. Kanni Ammal (AIR 1953 T.C. 115) where it was held that when the donor under a gift deed unequivocally and unconditionally transferred his rights over certain properties to the donee with absolute powers to deal with the same, a subsequent clause in the deed to the effect that on the death of the donee, the property shall not devolve on her heirs, but will revert to the donor would be repugnant to the absolute estate created in favour of the donee, and such provision would be ineffective and void. But the learned judges did not approve the principle laid down in the above Travancore Cochin decision. But the learned judges did not approve the principle laid down in the above Travancore Cochin decision. The learned judges observed that the well settled principle has been that the meaning of any particular clause in gifts and wills is to be collected from the entire instrument and all its parts are to be considered with reference to each other. Before a provision is disregarded on the ground of repugnancy to the main provision, every attempt should 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. In support of that view the learned judges relied on the decision of Mohammed, J. in Maharam Das v. Ajudhia (ILR 8 All. 452) that every attempt should be made to reconcile the conflicting statements and the main object of the parties must be kept in view and that the provisions inconsistent therewith must be treated as void. In that case, their Lordships came to the conclusion that the interest created in favour of Cheeru was in the nature- of mere life interest only and not an estate of inheritance. In Mathew Thommen v. Paily Ulahannan (1957 KLT 1119) in a gift deed executed in favour of a marumakkathayam woman, the first clause provided that the property should be taken by the donee and her santhanams. She was directed to attorney to the Jenmi to pay michavaram and other dues. The subsequent clause stated that she should enjoy the property for her lifetime without encumbering and the properties will devolve on her santhanams. Learned Judge noticed that the earlier clause conveying absolute interest was not sought to be qualified by use of apt words "subject to the following conditions". But the immediate following clause prescribed the incapacity of the mother during her lifetime to encumber the property to any extent and that was enough for coming to the conclusion that the mother had no right to alienate any portion of the property. The contention of the transferee from the mother based on Ss.10 and 11 of the Transfer of Property Act that the mother was entitled to deal with her fractional share independently of her children was rejected. 10. In the case on hand, when clauses 8 and 9 in Ext. The contention of the transferee from the mother based on Ss.10 and 11 of the Transfer of Property Act that the mother was entitled to deal with her fractional share independently of her children was rejected. 10. In the case on hand, when clauses 8 and 9 in Ext. Al partition deed are read together, it is clear that the estate created in executants 1 and 3 is only life interests. It is not possible to read clause 8 unqualified by clause 9 and conclude that an absolute interest is created, nor is it possible to ignore the provisions in Clause 9 as restricting the rights already vested. This is especially so as Ext. Al is a partition deed to which all are parties. In the case of a gift, when the donor relinguished his right in favour of the donee, he cannot by making subsequent provisions restrict it or withdraw it without the consent of the donee who gets right by such absolute disposition. In a partition deed, where the person who obtains the interest is also a party, there will be no such disability as in the case of a gift. It is true that clause 8 does not state that it is subject to the provisions in the document, but still the general provision in clause 8 must be read with the subsequent clauses. This is not a case where two parts of the document cannot be read together and reconciled. Only in such a case, the latter provision can be considered as void as held in the decision of the Supreme Court quoted earlier. Ext. Al partition has been entered into just before the Hindu Succession Act came into force. Padmanabha Kurup, who was apparently the eldest male member in the family has even given part of his self-acquisitions for the family members. He was a bachelor also. He must have intended that the properties must continue with his marumakkathayam family in spite of legislative changes. 11. From the above discussion, the conclusion is that the appellants cannot succeed in their case that executants 1 and 3 had absolute rights in the A schedule property to Ext. Al and that, clause 9 vesting the property on the allottees of H schedule is void or inoperative. 11. From the above discussion, the conclusion is that the appellants cannot succeed in their case that executants 1 and 3 had absolute rights in the A schedule property to Ext. Al and that, clause 9 vesting the property on the allottees of H schedule is void or inoperative. The appellants seem to have a case that, if at all, the provisions in clause 9 must be read as a testamentary disposition and if so, it has been cancelled by subsequent deeds, Ext. B2 executed by Padmanabha Kurup and Ext. B1 executed by Narayana Kurup. In fact, from the recitals in Ext. B2 it is seen that Padmanabha Kurup must have been advised that the provisions in Clause 9 in Ext. Al have the effect of a testamentary disposition. This is clear from the recitals in clause 6 of the document that he was executing the will regarding the A schedule in favour of Narayana Kurup so that Narayana Kurup will be at liberty to exercise his absolute rights during his lifetime. It contains a further statement that if Narayana Kurup does not exercise that right, the document will not bar the other provisions from coming into effect. But the trial court has held that Exts. B1 and B2 have not been properly proved. In appeal, learned single judge has observed that, that part of the decision has become final and it has not been challenged. In this appeal before us, there is no specific challenge of finding regarding the genuineness of Ext. B1 will. As already noted, the 4th defendant who is the beneficiary and propounders of Ext. B1 will has not filed any appeal against the decision of the trial court or the appellate court also. So, the appellants cannot claim any benefits on the basis of Exts. B2 and B1, the Wills allegedly executed by Padmanabha Kurup and Narayana Kurup. In the light of the above discussions, the conclusions of the trial court and the learned appellate judge are upheld and this appeal is dismissed. No order as to costs.