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2006 DIGILAW 365 (KER)

Saramma Ittoop v. Kunjamma Kuruvilla

2006-06-28

K.T.SANKARAN, R.BHASKARAN

body2006
Judgment :- Sankaran, J. Defendants 2,3 and 5 is O.S.No.223 of 1990 on the file of the Court of Subordinate Judge of Moovattupuzha, challenge the preliminary judgment and decree of the trial court by which the plaintiffs were held entitled to 2/10 shares in the plaint schedule property and 2/10 shares in the rent received in respect of the buildings and defendants 2 to 5 were restrained from causing any obstruction to the plaintiffs in taking water from the plaint schedule property. It was also provided in the preliminary decree that as far as possible, partition should be effected without affecting the residence of defendants 2 to 5. 2. The plaint schedule property and the building therein belonged to Ittoop Kurian. He was a bachelor. Ittoop Kurian has three brother and five sisters, namely, Varghese, Kurivilla, Ittoop, Annamma Chacko, Sosamma Uthup, Mariamma, Aleyamma and Saramma Kuriakose. The plaintiffs are the daughter and widow of Kuruvilla. Sosamma Uthup died and her legal representative are since deceased P.U. Ittop and the 11th defendant P.U. Mathew. The legal representatives of P.U. Ittoop are defendants 2 to 5. Defendants 6 to 9 are the legal representatives of Mariamma. Defendants 12 to 15 are the tenants in the building. 3. The case of the plaintiff is as follows: After the death of Ittoop Kurian his three brother executed Exhibit A1 settlement deed dated 17-1-1957 entrusting P.U. Ittoop with the management of the plaint schedule property and making him liable to account for the income derived from the property. Even after the execution of Exhibit A1, improvements were effected in the property by Kuruvila, the father of the first plaintiff. As per the settlement deed, P.U. Ittoop was liable to meet the expenses of the parents of Ittoop was liable to meet the expenses of the parents of Ittoop Kurian. Certain other conditions are stipulated in Exhibit A1. P.U. Ittoop was only an agent of the executants of the settlement deed. On the death op P.U. Ittoop, the agency has been terminated. Defendants 2 to 5 did not derive any title to the property under Exhibit A1 settlement deed. The settlement deed not in any way affects the rights of the plaintiffs and the other legal heirs of Itoop Kurian in the plaint schedule property. On the death op P.U. Ittoop, the agency has been terminated. Defendants 2 to 5 did not derive any title to the property under Exhibit A1 settlement deed. The settlement deed not in any way affects the rights of the plaintiffs and the other legal heirs of Itoop Kurian in the plaint schedule property. Even after the death of P.U. Ittoop, defendants 2 to 5 use to take usufructs from the property and they accounted the same. Recently, they have shown disinclination to do so. Defendants 2 to 5 filed rent control petitions against the tenants claiming themselves as owners. The buildings were constructed by Kuruvilla, the father of the first plaintiff. He also installed a motor pump house and water tank. The improvement are to be reserved to their share. The plaintiffs have easement right to have access to their other property. Injunction is sought restraining defendants 2 to 5 from causing obstruction to the plaintiffs in enjoying the easement of necessity. A prayer for injunction restraining defendants 2 to 5 from effecting permanent improvements in the property was also made. 4. Defendants 6 to 9 supported the plaintiffs and claimed their share. Defendants 2 to 5 alone contested the suit. They contended that the property is not partible and that the plaintiffs or other defendants have no rights in the property. Ittoop Kurian, the maternal uncle of P.U. Ittoop, brought up the latter. The former had deep affection towards his nephew P.U. Itoop. The legal representatives of Ittoop Kurian were aware of his pius wish to settle the property in favour of P.U. Ittoop. The intention of the executants of Exhibit A1 was to give absolute rights in the property to P.U. Ittoop. All the legal representatives of Ittoop Kurian Treated the property as the Property of P.U. Ittoop. Constructions were made by P.U. Ittoop. He never acted as the agent of the executants of Exhibit A1. At the time of execution of Exhibit A1, the sisters of Ittoop Kurian had no rights in the property and therefore they did not join in the execution of the deed. It was also contended that the rights, if any, of the legal representatives of Ittoop Kurian have been lost by adverse passions and defendants 2 to 5 have perfected title. 5. It was also contended that the rights, if any, of the legal representatives of Ittoop Kurian have been lost by adverse passions and defendants 2 to 5 have perfected title. 5. The plaintiffs have filed Memorandum of Cross Objection contending that they are entitled to a decree for reserving the constructions and installations in their favour. 6. The points arising for consideration are: (1) whether Exhibit A1 created absolute rights in the predecessor in interest of defendants 2 to 5? (2) whether the rights, if any, of the legal representatives of lttoop Kurian have been lost by adverse possession and limitation? And (3) Whether the Memorandum of Cross Objection is liable to be allowed? 7. Point No.1: The nomenclature of Exhibit A1 is “dhananischayam”, meaning thereby a settlement. The intention of creating Exhibit A1 is stated to be the necessity of making certain stipulations. Exhibit A1 does not state that it is executed in favour of any particular person. The recitals in Exhibit A1 provide, inter alia, the following conditions and stipulations: (a) all the rights of Annam, the widow of late lttoop Kurian are retained; (b) Aliyamma, the sister of the executants would have rights to reside during her life time; (c) P.U. lttoop and his wife and children shall have right to reside in the property; (d) Till the death of the mother, P.U. lttoop and Aliyamma shall reside there obeying the instructions of the mother; (e) P.U. lttoop shall account the rents to the mother. He shall meet the expenses for the “andu shradham” of lttoop Kurian. The tax and building tax shall be paid by P.U. lttoop; (f) After the death of the mother, accounts of the incomes shall be kept by P.U. lttoop. He shall meet the expenses and the balance shall be utilized for the repair of the buildings and for making necessary new constructions. If any of the brothers or sisters fall ill, they shall be brought home and all the expenses shall be met. The “shradha” of the parents shall be performed. (g) After the death of the mother, her sister shall be treated as the mother. If any of the sisters or their children go to the house, they shall be treated in the same manner as the mother Annam treated them. (h) The name of the house and property shall not be changed. (i). (g) After the death of the mother, her sister shall be treated as the mother. If any of the sisters or their children go to the house, they shall be treated in the same manner as the mother Annam treated them. (h) The name of the house and property shall not be changed. (i). It is not necessary to effect mutation. 8. The recitals in Exhibit A1 would unmistakably indicate that the P.U. lttoop has been given only a right of residence with his wife and children. No absolute right is created in his favour. The rights of the executants of Exhibit A1 have not been divested. The rights of the other legal representatives of lttoop Kurian are also not affected by Exhibit A1. The sisters of lttoop Kurian have rights in the property. They have not jointed in the execution of Exhibit A1. Exhibit A1 only makes stipulations for the proper management of the property and for the residence of P.U. lttoop and his family. The right of management was given to P.U. lttoop. His right is only that of an agent. After the death of P.U. lttoop, his legal representatives have no such right of management. The agency or right of management comes to an end by the death of P.U. lttoop. The specific recital in Exhibit A1 that it is not necessary to effect “pokkurvaravu” (mutation) is a clear indication that no rights are created in favour of P.U. lttoop by Exhibit A1. No intention to transfer rights within the meaning of Section 5 of the Transfer of Property Act is manifested in Exhibit A1. The incidents of a transfer by way of gift are absent in Exhibit A1. The co-ownership rights of the executants of Exhibit A1 and those of their sisters were not intended to be transferred to P.U. lttoop. There is no recital in Exhibit A1, which is capable of being construed as a demise in praesenti vesting absolute title in P.U. lttoop. 9. It is well settled that in the matter of construction of a document, the recitals in the documents and the terms of the documents, are of primary importance. If the intention is to be gathered for construction of the terms of a document, it must be gathered from the document itself. 9. It is well settled that in the matter of construction of a document, the recitals in the documents and the terms of the documents, are of primary importance. If the intention is to be gathered for construction of the terms of a document, it must be gathered from the document itself. In Chunshun Jha V. Ebadat Ali, A.I.R. 1954 S.C. 345, the Supreme Court held: “If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended.” In Gilbert V. Vivekanandan: 1988 (1) K.L.T. 50, this court relied on A.I.R. 1954 S.C. 345: Chunshun Jha v. Ebadat Ali and Moideen Haji v. Mohammadali: 1987 (2) K.L.T. 994 and held thus: “These decisions show that even when the parties, uninstructed in law, used language, the legal effect of which they did not intend or foresee, the nature of the transaction which they concluded must be determined with reference to the legal effect of the words used by them. It is not open to the court to ignore the legal effect of words, which are express and clear, whatever to consequences and whatever be the disadvantage or hardship that it might ultimately cause to one or more of the parties. The question is not what the parties had intended or meant, but what is the legal effect of the words which they used, which means, what a reasonable man reading the document would understand them to mean. It is only in the case of ambiguity in the language used by them is it permissible for the court to look at the surrounding circumstances to determine what the patties actually intended.” In Moideenkutty Haji v. Mohammedali 1987 (2) K.L.T. 994, it was held that “it is a general principle that the intention which the framer of a document had in his mind when he brings it into existence is not the material factor but what is incorporated in the document.” In Subbegowds (Dead ) by L.r. Appellant vs. Thimmegowds (Dead) by Lrs. Respondents: A.I.R. 2004 S.C. 2428, the Supreme Court considered the terms of a settlement deed executed by the owner in favour of his brother’s son who was adopted by the owner. There was a clause for cancellation of the deed in case the stipulations contained therein were not fulfilled. Laying down the principles of construction, the Supreme Court held thus: “Though called a Settlement Deed, what was the intention of the executant behind executing the deed? The question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then by looking into the extent permissible the prevailing circumstances, which persuaded the author of the document to execute it. If the executants intended to transfer property the Court would lean in favour of holding the transferee having been vested with interest in the property. Where an intention to transfer property within the meaning of Section 5 of Transfer of Property Act, 1882 cannot be spelled out, the document will be given effect to as it reads and as is explicit from what is set out in the deed itself.” In Subbegowda’s case, the Supreme Court also considered the question of conditional transfer or a settlement and held: “A conditional transfer or a settlement accompanied by conditions is not unknown to the law of real property. It is permissible in law to annex or encumber any grant or alienation with condition or limitation which will operate and the Court will give effect to it unless there is some provision of law which annuls or invalidates such conditions, restraint or limitation.” 10. It is permissible in law to annex or encumber any grant or alienation with condition or limitation which will operate and the Court will give effect to it unless there is some provision of law which annuls or invalidates such conditions, restraint or limitation.” 10. Section 2(q) of the Kerala Stamp Act defines ‘settlement’ as follows: “Settlement means any non-testamentary disposition in writing, of movable or immovable property made- (i) in consideration of marriage, (ii) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or (iii) for any religious or charitable purpose; And includes an agreement in writing, to make such a disposition (and, where any such disposition has not been made in writing, any instrument recording, whether by way of declaration, of trust or otherwise, the terms of any such disposition).” The executants of Exhibit A1 had no absolute rights in the property. Their sisters had co-ownership rights and they are not parties to Exhibit A1. There is no ‘distribution of the property of the settler’ or conferment of rights on the predecessor in interest of defendants 2 to 5 so as to make it a settlement. From the recitals in Exhibit A1, it cannot be held that there so any non testamentary disposition of immovable property. We are of the view that Exhibit A1 does not have the characteristics of a settlement deed coming under Section 2(q) of the Kerala Stamp Act. A co-owner could transfer his rights either by sale or by gift or if the transferee is another co-owner, by relinquishment or release as well. A gift under Section 122 of the Transfer of Property Act must be a transfer of interest in prasenti. Gift is made with the full intention that the subject of the gift shall not return to the donor and with the intention on the part of the donee to retain it entirely as his own. No such transfer of interest is made under Exhibit A1. No title is conveyed under Exhibit A1 and therefore, defendants 2 to 5 could not deny the rights of the legal representatives of the owner of the property. No such transfer of interest is made under Exhibit A1. No title is conveyed under Exhibit A1 and therefore, defendants 2 to 5 could not deny the rights of the legal representatives of the owner of the property. The proprietary title of the legal representatives of the owner of the property is not divested under Exhibit A1, nor their right to get partition affected. Exhibit A1 is neither a gift deed coming within the purview of Section 122 of the Transfer of Property Act nor a settlement deed under Section 2(q) of the Kerala Stamp Act. 11. The distinction between a ‘settlement’ and ‘gift’, is thin. Settlement can be revoked if the conditions stipulated therein are not fulfilled. A ‘gift’ can be suspended or revoked by the donor only if there is such an agreement between the donor and donee that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked. A gift, which the parties agree shall be revocable wholly or in part at the mere will of the donor, is void wholly or in part, as the case may be, as provided in Section 126 of the Transfer of Property Act. Under Article 31 of the Schedule to the Kerala Stamp Act, ‘gift’ is an instrument, “not being a settlement or will or transfer”. Article 51 therein provides for stamp duty for the recovation of settlement. In Deputy Collector v. Shahul Hameed and another: 1991 (1) K.L.J. 530 the distinction between a ‘gift’ and ‘settlement’ is stated thus” “In other words, many settlement deeds may be gift deed; but all gifts need not necessarily be settlements. Some documents may satisfy the requirements of both gift and settlement.” Going by any test, Exhibit A1 does not satisfy the requirement of a ‘settlement’ or a ‘gift’. 12. The recitals in Exhibit A1 are clear and unambiguous. Therefore, it is not necessary to gather the intention of the executants of Exhibit A1, with the aid of other evidence. Exhibit A4 shows that the “thandapper” stands in the name of Ittoop Kurian. Exhibits A6 to A13 would show that the predecessor in interest of the plaintiffs paid electricity charges and tax in respect of the property. Therefore, it is not necessary to gather the intention of the executants of Exhibit A1, with the aid of other evidence. Exhibit A4 shows that the “thandapper” stands in the name of Ittoop Kurian. Exhibits A6 to A13 would show that the predecessor in interest of the plaintiffs paid electricity charges and tax in respect of the property. The court below considered the evidence of D.Ws.1 and 2 and held that their evidence is not helpful in ascertaining the intention of the executants of Exhibit A1 in executing the document. On a re-appraisal of the evidence, we concur with the view taken by the court below. On the principles mentioned above and on the evidence on record, we have no hesitation to hold that the plaintiffs have partible interest in the suit property. 13. Point No.2: The court below considered the oral and documentary evidence in the case and held that most of the construction in the suit property were made by Kurivilla, the predecessor in interest of the plaintiff and not by P.U. Ittoop, the predecessor in interest of defendants 2 to 5. Exhibit A2 account book was heavily relied upon by the court below which would show that Kuruvilla spent amounts for constructions. The oral evidence of P.Ws.2, 4 and 5 was also relied on to arrive at this conclusion. The evidence of D.W.3 and D.W.4, who were examined to prove that P.U. Ittoop constructed the buildings, was disbelieved. On a careful consideration of the oral and documentary evidence, we find no ground to interfere with these findings. 14. The contention of defendants 2 to 5 is that their predecessor interest, P.U. Ittoop, perfected title by adverse possession. He was a co-owner. Exclusive rights are claimed under Exhibit A1. There is no plea of ouster. The question is, having claimed under a colour of title, whether P.U. Ittoop and after his death his legal representatives could claim to have perfected title by adverse possession. There is no case that P.U. Ittoop shed his character under which he claimed title under Exhibit A1 and commenced possession adversely to the owners. He claimed rights under Exhibit A1 and his legal representatives claim to have continued and succeeded to that right. It is well settled that adverse possession implies that it commenced in wrong and is maintained against right. He claimed rights under Exhibit A1 and his legal representatives claim to have continued and succeeded to that right. It is well settled that adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of the possession is legal and proper, referable to a claim of title, it cannot be adverse, unless it is proved that the person concerned shed his character under that claim and commenced adverse possession. By the very claim of title under Exhibit A1, the predecessor in interest of defendants 2 to 5 shall be taken to have acknowledged the title of the executants of the deed. He claimed title under the executants. Therefore, his possession could only be referable to Exhibit A1. Such possession could not be adverse to the real owners. 15. In Achal Reddi V. Ramakrishna Reddiar : A.I.R. 1990 S.C. 553, while holding that a person claiming under an executory contact for sale cannot claim adverse possession, it was held thus: “The well settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner’s title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognized policy of law that possession is never considered adverse if it is referable to a lawful title.” In Annasaheb Bapusaheb Patil V. Balwant: 1995 (2) S.C.C. 543, it was held: “Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.” In Mool Chand Bakhru and another V. Rohan and Others: 2002 (2) S.C.C. 612, Mohan Lal V. Mirza Abdul Gaffar 1996 (1) S.C.C. 639 and Roop Singh V. Ram Singh 2000 (3) S.C.C. 708, it was held that a person in possession of the property in part performance of the agreement to sell cannot claim acquisition of title by adverse possession and that plea of adverse possession and the possession by operation of Section 53-A of the Transfer of Property Act are inconsistent with each other. 16. The predecessor in interest of defendants 2 to 5 was a co-sharer in respect of the suit property. Mere possession by him for any length of time would not entitle him to claim exclusive title unless there is proof of ouster and adverse possession. It is well settled that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of other as to constitute ouster. A secret hostile animus to possess adversely to the real owner is not sufficient. See Shambhu Prasad Singh V. Mst. Phool Kumari and others: A.I.R. 1971 S.C. 1339; Maharajadhiraj of Burdwan V. Subodh Gopal Boase and others: A.I.R. 1971 S.C. 376; Syed Shah Gulam Ghouse Mohiuddin and others V. Syed Shah Ahmad Mohiuddin Kamisul Qadri and others: A.I.R. 1971 S.C. 2184; Mohd. Zainulabudeen V. Sayed Ahmed Mohideen and others: A.I.R. 1990 S.C. 507, Darshan Singh V. Gujjar Singh: 2002 (2) S.C.C. 62 and P. Lakshmi Reddy V. L. Lakshmi Reddy: AIR 1957 S.C. 314. Ouster and adverse possession must be pleaded and proved. In this case, there is no pleading for ouster. 17. For the aforesaid reasons, we hold point No.2 against the appellants. 18. Point No.3: The court below held that though certain constructions were made by Kruruvilla, the predecessor in interest of the plaintiffs, the same cannot be reserved in their favour, as it has come out in evidence Kuruvilla was collecting rent from the tenants for quite some period. 17. For the aforesaid reasons, we hold point No.2 against the appellants. 18. Point No.3: The court below held that though certain constructions were made by Kruruvilla, the predecessor in interest of the plaintiffs, the same cannot be reserved in their favour, as it has come out in evidence Kuruvilla was collecting rent from the tenants for quite some period. We have gone through the evidence in the case and we agree with the decision of the trial court on this point. The Memorandum of Cross Objection is, therefore, liable to be dismissed. In the result, we dismiss the Appeal as well as the Memorandum of Cross Objection without costs.