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2022 DIGILAW 80 (KER)

Yesudas, S/o Thomas v. Shylaja, W/o Radhakrishnan

2022-01-21

K.BABU

body2022
JUDGMENT : The defendants in O.S.No.109 of 1995 on the file of the Munsiff's Court, Cherthala, are the appellants. The legal representatives of the sole plaintiff are the respondents. 2. The plaintiff instituted the original suit for declaration of title over 5 cents of land comprised in Sy.No.102/14-A of Thuravoor South Village against the defendants. According to the plaintiff, he acquired the title over the plaint schedule property by virtue of assignment deed No.3159/1994 dated 23.12.1994 (Ext.A1). The plaintiff claims that from the date of execution of Ext.A1 assignment deed, he has been in the possession and enjoyment of the property. 3. According to the plaintiff, the defendants had purchased property on the immediate east of the plaint schedule property from the assignor of the property covered by Ext.A1. The defendants trespassed upon the plaint schedule property. The plaintiff’s peaceful possession and enjoyment of the plaint schedule property are under threat due to the illegal attempts on the part of the defendants. 4. The defendants resisted the claim of the plaintiff, contending that the plaintiff had no right over the plaint schedule property. The assignor of the property covered by Ext.A1 deed had no alienable right over the property at the time of execution of the deed. The assignor of the property, Smt.Kanchana on 17.12.1994 assigned 58 cents of property by way of Sale Deed No.3088/1994 in favour of the defendants. On the same day, Smt. Kanchana executed another sale deed in respect of 15.5 cents of land in favour of a stranger by name, Sri.Gopinathan Nair, as per Sale Deed No.3089/1994. The 58 cents of property covered by Ext.B1 is on the western extremity of the total extent of the property and the 15.5 cents of land covered by Ext.A2 is on the eastern extremity. 5. The defendants specifically contended that the assignor of the properties as on 23.12.1994, the date on which Ext.A1 was executed based on which the plaintiff claimed the title, had no right over the properties stated to have been transferred in his favour. 6. Based on the rival contentions, the parties went to trial. PWs 1 and 2 and DWs 1 and 2 were examined. Exts.A1 and A2 were marked on the side of the plaintiff, and Exts.B1 to B3 were marked on the side of the defendants. Exts.C1 and C2 series were marked as Court Exhibits. 7. 6. Based on the rival contentions, the parties went to trial. PWs 1 and 2 and DWs 1 and 2 were examined. Exts.A1 and A2 were marked on the side of the plaintiff, and Exts.B1 to B3 were marked on the side of the defendants. Exts.C1 and C2 series were marked as Court Exhibits. 7. The Trial Court dismissed the suit, holding that the assignor of the plaintiff had no alienable right, title or interest in respect of the property covered by Ext.A1. 8. The plaintiff challenged the decree and judgment passed by the Trial Court in A.S.No.99/1999 before the Subordinate Judge’s Court, Cherthala. The First Appellate Court set aside the decree and judgment of the Trial Court and decreed the suit, holding that the plaint schedule property was not covered by Ext.B1 executed in favour of the defendants and the assignor had alienable right on 23.12.1994 in respect of the plaint schedule property. The First Appellate Court declared the title of the plaintiff over the plaint schedule property and the defendants were restrained by an order of permanent prohibitory injunction from trespassing upon the plaint schedule property. 9. The defendants are in appeal, invoking Section 100 of the CPC, before this Court. 10. On 11.03.2014, this Court admitted the appeal on the following substantial questions of law:- (i) Whether the rights of the appellants as per Ext.B1 sale deed dated 17.12.1994 would in any manner be affected by Ext.A1 sale deed executed on 23.12.1994 by the very same transferor. (ii) Whether the transferor had any alienable right in the property at the time of execution of Ext.A1. (iii) Whether the First Appellate Court was justified in reversing the decree passed by the Trial Court without making any finding or opinion as to Ext.C1 and C1(a), when the Trial Court found that the same are liable to be rejected. (iv) Are the description and boundaries in Ext.A1 to be accepted, giving priority over Ext.B1, which is prior to Ext.A1? (v) Does the plaint property form part of the property covered by Ext.B1? 11. I have heard Sri.V.N.Sankarjee, the learned counsel appearing for the appellants. 12. (iv) Are the description and boundaries in Ext.A1 to be accepted, giving priority over Ext.B1, which is prior to Ext.A1? (v) Does the plaint property form part of the property covered by Ext.B1? 11. I have heard Sri.V.N.Sankarjee, the learned counsel appearing for the appellants. 12. The learned counsel for the appellants/ defendants contended that the entire property over which the assignor of the plaintiff had title was disposed of by way of Exts.B1 and A2 Sale Deeds on 17.12.1994 itself and she had retained no alienable right over any extent of the property after the execution of those deeds. The learned counsel contended that the descriptions of the properties in Exts.B1 and A2 would make it crystal clear that the defendants acquired 58 cents of property on the western extremity of the entire property held by the assignor and a stranger by name, Sri.Gopinathan Nair, acquired title over 15.5 cents of the property on the eastern extremity of the property by way of Ext.A2. 13. The learned counsel further contended that the alleged transaction in favour of the plaintiff by the assignor, Smt.Kanchana, by way of a subsequent dealing on 23.12.1994, cannot prejudice the rights of the transferee -defendants. 14. Plaintiff and defendants acquired the property from a common assignor/vendor. The property was originally in Sy.No.102/14-A of Thuravoor South Village. 15. On 17.12.1994, the assignor executed two sale deeds, Exts.B1 and A2. As per Ext.B1, the assignor alienated 58 cents of property on the western extremity of 78.5 cents of property, in favour of the defendants. On the same day, as per Ext.A2, the assignor sold 15.5 cents of the property lying on the eastern extremity of the property, describing it as lying on the eastern extremity of 78.5 cents of property, in favour of a stranger. On 23.12.1994, the assignor executed the sale deed in respect of the plaint schedule property in favour of the plaintiff, describing it as lying on the western extremity of 78.5 cents of property. 16. The case of the plaintiff is that he acquired right, title and interest over the plaint property as per Ext.A1. The challenge of the defendants is that the common assignor after the execution of Exts.B1 and A2 sale deeds on 17.12.1994, had retained no property. 17. In Ext.B1, the assignor had specifically described the side measurements of the property. 16. The case of the plaintiff is that he acquired right, title and interest over the plaint property as per Ext.A1. The challenge of the defendants is that the common assignor after the execution of Exts.B1 and A2 sale deeds on 17.12.1994, had retained no property. 17. In Ext.B1, the assignor had specifically described the side measurements of the property. The relevant portion of the description in Ext.B1 is as follows:- “The property having the extent Fifty Eight cents comprised in Survey No. 102/14A, Division, which is the balance extent, after deducting Fifteen and half cents stretching across the north and south boundaries on the eastern part of the property having an extent of Seventy Three and half cents with side measurements starting from the northwestern corner stone of the total property consisting of 63 cent in Survey 102/14A, Four and Three Fourth cents in 102/14B/1 and Ten and Three Fourth cents in 102/14A, as Two Hundred and Fifty links right towards north, from there towards east Two Hundred and Eighty Three links, from there towards south Two Hundred and Forty Three links, from there to the point where the measurement started Two Hundred and Fifty links in slanted measurement, with all trees and dilapidated house therein bearing No. T.P.IV 80.” (Translated from vernacular) 18. The description of the property covered by Ext.A2 executed on 17.12.1994 reads thus: “The property having the extent Fifteen and half cents consisting of Ten and Three Fourth cents in 102/14A comprised in Survey No.102/14A and Four and Three Fourth cents in 102/14B/1, which is the eastern part stretching across the north and south boundaries of 73 ½ cents Kunnathara purayidam property with side measurement starting from the northwestern corner stone of the total property consisting of 63 cents in Survey No.102/14A, 4 ¾ cents in 102/14B/1 and 10 ¾ cents in 102/14A, as 250 links right towards north, from there towards east 283 links, from there towards south 243 links, from there to the point where the measurement started 250 links in slanted measurement, and all trees therein.” (Translated from vernacular) 19. While executing Ext.A1 on 23.12.1994, the assignor described the property as follows:- “Five cents Upakari-purayidam property comprised in survey 102/14A Division situated within these boundaries with all trees therein, stretching across the north and south boundaries on the western extremity of pandaravakapattam Kunnathara purayidam property having extent 78 ½ cents lying as single plot in survey 102/14AB.” (Translated from vernacular) 20. A reading of the above extracted description of the properties covered by Exts.B1 and A2, shows that the assignor on 17.12.1994 had alienated 58 cents of property on the western extremity of the entire 78.5 cents of land in favour of the defendants and 15.5 cents of land on the eastern extremity of the property to a stranger. 21. What is evident from the examination of Exts.B1 and A2 along with Ext.A1 is that the assignor while executing Ext.A1 in favour of the plaintiff dealt with the properties alienated to the defendants and Sri.Gopinathan Nair by way of Exts.B1 and Ext.A2 respectively. The specific challenge of the defendants is that the assignor, Smt.Kanchana, had retained no property in Sy.No.102/14A and 14B after the execution of Exts.B1 and A2 on 17.12.1994. Defendant No.1 gave evidence in support of his pleadings as DW1. 22. The learned counsel for the defendants has taken me to the description of the property in Ext. A2 to contend that the assignor had title only over 73.5 cents of land. In Ext.A2 the property is described as 15.5 cents of land on the eastern extremity of the entire 73.5 cents of land. It is contended that the inference from this description is that Smt.Kanchana, the assignor had only 73.5 cents of land at the time of execution of Exts.B1 and A2 and she had not retained any part of the property covered by the title deed at the time of execution of Ext.A1 on 23.12.1994. 23. The learned counsel for the appellants/ defendants contended that, in all probability, the assignor had exhausted the entire property held by her by way of alienating properties under Exts.B1 and A2. The learned counsel relied on the recital in Ext.B1 to the effect that the assignor had handed over the prior title deed to the assignee to contend that she had exhausted the entire property and not retained any property covered by the prior title deed. 24. The learned counsel relied on the recital in Ext.B1 to the effect that the assignor had handed over the prior title deed to the assignee to contend that she had exhausted the entire property and not retained any property covered by the prior title deed. 24. Relying on Section 55 (3) of the Transfer of Property Act, the learned counsel for the defendants contended that the evidence regarding handing over of the prior title deed leads to the inference that the seller had not retained any part of the property covered by the sale deed. 25. Section 55 (3) of the Transfer of Property Act, reads thus:- “55. Rights and liablities of buyer and seller. In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold: XXX XXX XXX XXX XXX XXX (3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller's possession or power: Provided that, (a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and, (b) where the whole of such property is sold to different buyers, the buyers of the lot of greatest value is entitled to such documents. But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyer, as the case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts therefrom as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accidents.” (emphasis supplied) 26. Ext.B1 specifically mentions that the prior title deed was handed over to the defendants by the assignor at the time of execution of the deed. 27. Ext.B1 specifically mentions that the prior title deed was handed over to the defendants by the assignor at the time of execution of the deed. 27. As per the proviso to Sub-Section (3) of Section 55 of the Transfer of Property Act, the seller is entitled to retain the title deed if he retains any part of the property covered by it. In a given case, if the seller handed over the document of title to the purchaser, the presumption would be that he had not retained any part of the property covered by it. In the present case, the presumption from the conduct of the assignor handing over the prior title deed to the defendants on 17.12.1994 was that she had retained no property under the said title deed. 28. The facts of the present case are governed by the principles contained in Section 48 of the Transfer of Property Act. 29. Section 48 of the Transfer of Property Act reads thus: “48. Priority of rights created by transfer-Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously-created.” 30. The principle of Section 48 of the Transfer of Property Act, is that if there are successive transfers of the same property, the latter transfer is subject to the prior transfer. A transferor cannot prejudice the rights of the transferee by a subsequent dealing with the property. 31. In Mulla’s Transfer of Property Act, [Thirteenth Edition, Lexis Nexis, Page No.279] on the principles embodied in Section 48 of the Transfer of Property Act, it is stated thus:- “(1) Priority The transferor cannot prejudice the rights of the transferee by any subsequent dealing with the property. This self-evident proposition is expressed in the equitable maxim qui prior est tempore potior est jure.The application of this maxim in English law is complicated by the preference given to the legal estate over the equitable interest. This complication does not occur in Indian law, but the rule in India is subject to certain exceptions which will presently be noticed. This self-evident proposition is expressed in the equitable maxim qui prior est tempore potior est jure.The application of this maxim in English law is complicated by the preference given to the legal estate over the equitable interest. This complication does not occur in Indian law, but the rule in India is subject to certain exceptions which will presently be noticed. Qui prior est tempore potior est jure The literal meaning of the maxim qui prior est tempore potior est jureis “he who is prior in time is better in law”. The one who has the advantage in time should have precedence in law as well is the basis of this rule where two successive transfers of the same property have been effected. The Section embodies the rule of priority founded on law and justice. Determination of the right of priority in case of successive transfers over the same immovable property calls for a combined operation of Section 48 of the TP Act and Sections 47 and 49 of the Registration Act.” 32. In S.Arunachalam Asari (died) and others v. Sivan Perumal Asari and another [AIR 1970 Madras 226 (V 57 C 59)], the Madras High Court held that Section 48 of the Transfer of Property Act is founded upon the equally important principle that no man can convey a better title than what he has. If a person has already effected a transfer, he cannot derogate from his grant and deal with the property free from the rights created under the earlier transaction. His prior title as absolute and free owner is curtailed or diminished by rights already created under the earlier transaction. Section 48 of the Transfer of Property Act is absolute in its terms and does not contain any protection or reservation in favour of a subsequent transferee who has no knowledge of the prior transfer. Knowledge or no knowledge, a subsequent transferee cannot claim any priority as against an earlier transferee. 33. The fact that the subsequent purchaser is a bona fidepurchaser cannot be a ground by itself for postponing the rights of the prior transferee. This view is fortified by the decision of the High Court of Punjab and Haryana in Kuldip Singh v. Balwant Kaur (deceased) represented by her L.R. [AIR 1991 Punjab and Haryana 291] 34. It is pertinent to note that the plaintiff failed to produce any prior title deeds. This view is fortified by the decision of the High Court of Punjab and Haryana in Kuldip Singh v. Balwant Kaur (deceased) represented by her L.R. [AIR 1991 Punjab and Haryana 291] 34. It is pertinent to note that the plaintiff failed to produce any prior title deeds. In Ext.A1 Sale Deed, the assignor had referred to a different prior deed. The assignor, Smt.Kanchana, had traced her title from document No.1234/1997 of Arukutty Sub Registry while executing Ext.B1 Sale Deed in favour of the defendants, whereas she traced her title from document No.1233/1997 of Cherthala Sub Registry, while executing Ext.A1 in favour of the plaintiff. This discrepancy also materially affects the plaintiff's claim. The resultant conclusion is that the plaintiff failed to establish right, title and interest over the plaint schedule property. 35. The First Appellate Court failed to appreciate the pleadings and evidence in accordance with law. The First Appellate Court has also failed to draw necessary inferences and presumptions that would apply on the facts and circumstances of this case. The impugned judgment and decree dated 29.09.2007 of the Subordinate Judge's Court, Cherthala, are therefore, liable to be set aside. In the result, the Regular Second Appeal is allowed. The judgment and decree dated 29.09.2007 in A.S.No.99 of 1999 are set aside. The judgment and decree dated 31.07.1999 in O.S. No.109 of 1995 of the Principal Munsiff's Court, Cherthala are restored. The parties are directed to bear their respective costs. Pending interlocutory applications, if any, stand closed.