N. S. S. Karayogam v. Ramavilasam Grandhasala — 1998 DIGILAW 611 (KER)

Judgment :- P.K. Balasubramanyan, J. The plaintiff is the appellant. The plaintiff filed a suit for declaration of title and for recovery of possession of the plaint schedule property and the building therein with mesne profits. The defendants resisted the suit. The trial court dismissed the suit and that dismissal was affirmed in appeal by the lower appellate court. The plaintiff has filed this Second Appeal questioning the dismissal and the finding that the plaintiff has no title on the substantial question of law formulated in the Memorandum of Second Appeal. This Court admitted the Second Appeal and issued notice on the substantial questions of law so formulated. 2. The plaint schedule property belonged to one Sivarama Pillai examined as PW-2. On 19.8.1114 M.E. he executed a deed of gift Ext. A1 donating the property to one Neelakantan Nair for the running of an'Yuva Samithi' (Youth Club). It was provided in the deed of gift that the property was to be used for the Yuva Samithi so long as it existed and in the event of the Yuva Samithi becoming defunct, the property would revert to Sivarama Pillai, the donor or his heirs. Subsequent to the gift, the Yuva Samithi was in possession of the property and it was functioning. According to the plaintiff, the Yuva Samithi became defunct so that the property reverted to Sivarama Pillai. Thereafter Sivarama Pillai executed Ext. A2 gift dated 3.11.1979 in favour of the plaintiff, a company registered under the Travancore Companies Regulation working for the social and cultural uplift of the people, According to the plaintiff the defendants had trespassed into the property and hence were wrongfully in possession. The plaintiff was hence entitled to recover possession of the property on the strength of its title under Ext. A2 gift. The defendants are an association called Ramavilasom Grandhasala which is situate about 300 metres away from the plaint schedule property. It is interesting to note that the land on which the Grandhasala functions also belonged to PW2 and he had donated that property to the Ramavilasom Grandhasala, According to the plaintiff Ramavilasom Grandhasala had nothing to do with the Yuva Samithi to which the plaint schedule property was earlier given under Ext. A1 and that on the midnight of 22.4.1980 the members of the Grandhasala had forcibly occupied the plaint schedule property. A1 and that on the midnight of 22.4.1980 the members of the Grandhasala had forcibly occupied the plaint schedule property. The defendants pleaded that the Yuva Samithi had not become defunct as contended, that the Yuva Samithi that was in existence at the time of Ext. A1 gift was now functioning as Ramavilasom Grandhasala and United Sports Club. Hence there was no reverting of the property to Sivarama Pillai, PW. 2 on the terms of Ext. A1 as contended by the plaintiff. Hence noquestion of Sivarama Pillai executing a further gift under Ext. A2 arose. No title could be conveyed on the plaintiffs by Sivarama Pillai. Even otherwise Ext. A1 was an outright gift in favour of the Yuva Samithi and the clause in the deed of gift that the property will revert to the donor was invalid in law being hit by S.11 of the Transfer of Property Act. There was no tresspass by the Grandhasala as averred by the plaintiff. The plaintiff was not entitled to any relief. The trial court held that since the provision in Ext. A1 deed of gift that the property will revert to the donor was repugnant to the grant, it had to be held that the absolute title to the property vested with the Yuva Samithi, the donee under Ext. Al. It held that the Yuva Samithi, the cultural association to which the plaint schedule property was gifted was in existence. Hence the plaintiff was not entitled to the decree sought for. The lower appellate court held that the provision in Ext. A1 deed of gift for reverting of the property to the donor was invalid and hence the finding that the condition was void had only to be upheld. That court took the view that the burden was on the plaintiff to prove that the Yuva Samithi had become defunct and it must be held that the plaintiff had failed to prove that the Yuva Samithi had became defunct. But the discussion of evidence by the appellate court shows that court was also not convinced that the defendants were able to prove that the Ramavilasom Grandhasala and United Sports Club was really the Yuva Samithi referred to in Ext. Al. But in its view of the burden of proof the appellate court affirmed the decree passed by the trial court. 3. The evidence of Sivarama Pillai, the donor under Ext. Al. But in its view of the burden of proof the appellate court affirmed the decree passed by the trial court. 3. The evidence of Sivarama Pillai, the donor under Ext. A1 examined as PW2 shows that he was interested and associated with the activities of both the Grandhasala and Yuva Samithi, both of which were in existence as separate entities at the time of Ext. A1 gift. His evidence also shows that Neelakantan Nair who accepted the gift in favour of the Yuva Samithi handed to him back the original deed of gift Ext. A1 and the seal of the Yuva Samithi telling him that the Yuva Samithi had became defunct and as he had become too old, he was also not able to carry on its activities. According to PW2, the Yuva Samithi thus became defunct and it was under that circumstance he thought of gifting the property to the plaintiff and he executed Ext. A2 in favour of the plaintiff and handed over the original of the prior deed Ext. A1 also to the plaintiff. A reading of the evidence of PW 2 as a whole clearly supports the case of the plaintiff that the Yuva Samithi had became defunct by about 1122 M.E. The other evidence in the case discloses that the Grandhasala was about 300 metres away from the plaint schedule property and had a premises of its own unconnected with the Yuva Samithi and the land that had been donated by PW. 2. The case of the defendants appears to be that the Yuva Samithi had transformed itself into Ramavilasom Grandhasala and United Sports Club, DW.1 in his evidence has stated that the Yuva Samithi functioned in the name of Yuva Samithi till 1122 M.E. Thereafter, it had merged with the Grandhasala. His evidence further shows that such merger should have been evidenced by the concerned resolution. On a scrutiny of the documents produced on behalf of the defendant, it is clear that none of those documents support the case of a formal merger of the Yuva Samithi with the Grandhasala. According to me in the nature of the pleadings in the case, the burden was on the defendants to establish that it was the Grandhasala that had got converted itself into, Ramavilasom Grandhasala and United Sports Club or that both the entries are the same. According to me in the nature of the pleadings in the case, the burden was on the defendants to establish that it was the Grandhasala that had got converted itself into, Ramavilasom Grandhasala and United Sports Club or that both the entries are the same. Having conceded that Ramavilasom Grandhasala was a distinct and different entity from the Yuva Samithi, was certainly for the defendants to establish that the Yuva Samithi had got itself converted into the United Sports Club as now claimed by the defendants. Moreover both the Yuva Samithi and the Grandhasala are voluntary associations and there ought to be resolutions which had brought about the conversion of the Yuva Samithi into the United Sports Club and its merger or association with Ramavilasom Grandhasala. On a scrutiny of the documents produced in that behalf, it can be seen that there are only stray entries which had came into existence at about the time of the suit and thereafter and none of term showed that there was any decision or resolution which brought about the merger of the Yuva Samithi in the Ramavilasom Grandhasala or which led to the conversion of the Yuva Samithi into the United Sports Club. It is also significant to note that there is no evidence of the Grandhasala or the United Sports Club of being in possession of the plaint schedule property at any time after 1122 M.E. until the date of Ext. A2 gift in the year 1979. The alleged entry in the minutes book of some thatching done at a subsequent point of time cannot lead to the inference that the Yuva Samithi had got itself converted into the United Sports Club. In my view, the trial court was in error in not properly scrutinizing the documents produced on the side of the defendants and in coming to the conclusion that the activities of the Yuva Samithi are being continued by the Ramavilasom Grandhasala and United Sports Club. The lower appellate court was in error in proceeding on the basis that the burden was on the plaintiff to prove that the Yuva Samithi had become defunct and that burden has not been discharged. In the light of the evidence of PW. 2, the production of Ext, A1 gift by the plaintiff, the execution of Ext. A2 by PW. The lower appellate court was in error in proceeding on the basis that the burden was on the plaintiff to prove that the Yuva Samithi had become defunct and that burden has not been discharged. In the light of the evidence of PW. 2, the production of Ext, A1 gift by the plaintiff, the execution of Ext. A2 by PW. 2 and the admission of D W.1 examined on the side of the defendants that the Yuva Samithi functioned in that name only till 1122 M.E. atleast clearly discharged the initial burden cast on the plaintiff to establish the fact that the Yuva Samithi had become defunct. Both the Yuva Samithi and the first defendant being voluntary associations, there ought to be clear records showing the amalgamation, merger or take over of the Yuva Samithi with or by the Grandhasala. None of those documents have been produced. A reading of the evidence of D W1 would suggest that there are no such resolutions or decisions which had brought about a proper amalgamation of the two associations or the conversion of the Yuva Samithi into the United Sports Club. I am therefore, satisfied that the plaintiff had established that the Yuva Samithi had become defunct by about 1122 M.E. The evidence of PW. 2 is clearly acceptable in the circumstances of the case. 4. Then the question is whether the provision in the deed of gif text. A1 to the effect that the property will revert to the donor on the Yuva Samithi becoming defunct can be held to be invalid as being repugnant to the grant. It is settled in this court right from the time of Krishnan Kumar an v. Mathew J. Mattom (1957 KLT 407) that 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 transfer was to make an absolute transfer or only a restrictive transfer. The view was reiterated in Mathew Thommen v. Paily Ulahannan (1957 KLT 1119). The courts below have referred to the decision in Nangeli Amma v. Krishnan Nambeesan (195 8 KLT 516) to find that the clause in Ext. A1 gift providing that on the cessation of the Yuva Samithi the property will revert to the donor as being invalid on the ground of repugnancy. The courts below have referred to the decision in Nangeli Amma v. Krishnan Nambeesan (195 8 KLT 516) to find that the clause in Ext. A1 gift providing that on the cessation of the Yuva Samithi the property will revert to the donor as being invalid on the ground of repugnancy. As I see it, the said decision also lays down no principle different from the one recognised in Krishnan Kumaran v. Mathew J. Mattom (1957 KLT 407). What their Lordships have stated in Nangeli Amma's case is this: "If, after reading the document as a whole and attempting to reconcile as far as possible the apparently irreconcilable clauses, it is seen that there are two passages which are wholly irreconcilable and repugnant to each other, the subsequent clause in the instrument of transfer or gift, inconsistent with the nature of the gift or interest made by the earlier clause, has to be rejected as repugnant to the earlier clause." That every attempt must be made to reconcile all the terms of the settlement or gift i s also clear from the decision of the Supreme Court in Ramkishorelal v. Karnalnarayan (AIR 1963 SC 890) indicating that theruleof harmonious construction must be followed and only when it was impossible and where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions could be held to be void. In A. Sreenivasa Pai v. Saraswathi Ammal (AIR 1985 SC 1359) the Supreme Court applied the rule that was applied to wills. In Ramachandra Shenoy v. Mrs. Hilda Brite (AIR 1964 SC 1323) to the interpretation settlement deed as well. Their Lordships have followed the principle that to the extent that it is legally possible effect should be given to every disposition and unless the law prevents effect being given to it. A court of construction will proceed to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every intention expressed in the document. Ext. A1 in my view has to be read in the light of this principle. The object of the gift under Ext. A1 is apparently clear. It was given for the purpose of use by putting up constructions by the Yuva Samithi that had come into existence. Ext. A1 in my view has to be read in the light of this principle. The object of the gift under Ext. A1 is apparently clear. It was given for the purpose of use by putting up constructions by the Yuva Samithi that had come into existence. The donor wanted the Yuva Samithi to enjoy the property so long as the Yuva Samithi continued in existence. The donor then provided that in the event of the Yuva Samithi becoming defunct, the rights over the property would revert to the donor. It is possible to reconcile the two provisions when one bears in mind the object of the gift. Since the beneficiary is the Yuva Samithi the provision that on the Yuva Samithi becoming defunct the donor would be entitled to resume rights over the property is perfectly consistent with the intention of the donor and the object sought to be achieved by the making of the gift. It is not necessary nor is one obliged to read the later provision as repugnant to the apparent absolute gift made to the Yuva Samithi by the earlier clause. Going by the principle as indicated above, I am satisfied that the courts below were clearly in error in holding that the provision in the deed that in the event of the Yuva Samithi becoming extinct, the property will revert to the donor is invalid or unenforceable. 5. On the finding, it is clear that the Yuva Samithi had ceased to exist The defendants had failed to establish that it was the Yuva Samithi that got converted into or amalgamated with Ramavilasom Grandhasala and United Sports Club or that the Yuva Samithi converted itself into the United Sports Club. None of the relevant resolution either of the Yuva Samithi or of the Grandhasala or Sports Club are produced in support of any such merger, amalgamation or take over. Further the very fact that the original of Ext. A1 gift deed is returned to the donor, PW2 and the donor was in a position to hand over the same to the plaintiff, the donee under Ext. A2 also support the case that the Yuva Samithi had become defunct and the intention expressed in Ext. A1 of the property reverted to the donor had been given effect to. A1 gift deed is returned to the donor, PW2 and the donor was in a position to hand over the same to the plaintiff, the donee under Ext. A2 also support the case that the Yuva Samithi had become defunct and the intention expressed in Ext. A1 of the property reverted to the donor had been given effect to. In this context, I see no reason not to believe that evidence of PW2 when he stated that Neelakantan Nair, who accepted the gift in his old age and while being ill told the donor that the activities of the Yuva Samithi have ceased and could no longer be carried on and returned the document Ext. A1 and the key of the building or shed that had been put up in the property. This evidence also justifies the conclusion that Ext. A2 deed of gift has came into effect and the legal right over the property has come to vest in the plaintiff. In the context of the case there is also no difficulty in accepting the case of the plaintiff that the Grandhasala and the Sports Club had trespassed into the property just prior to the suit so as to make it appear that they were in possession of the property. I am therefore satisfied that the plaintiff is entitled to the decree sought for in this suit. I therefore, allow this Second Appeal and reversing the judgment and decrees of the courts below grant the plaintiff a decree declaring the title of the plaintiff over the plaint schedule property including the building and for recovery of possession of the property including the building from the defendants. Considering the circumstances I do not think it necessary to grant the plaintiff a decree for mesne profits till this date. But the plaintiff would be entitled to mesne profits at the rate of Rs. 30 per month from the date of this decree until recovery of possession subject to O. XX R.12 of the Code of Civil Procedure. The parties are directed to suffer their respective costs.