Kasturi vs Rajasekar
2023 Latest Caselaw 1903 Mad

                                                                         SA.Nos.1337 & 1338 of 2007


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 06.03.2023

                                                     CORAM

                         THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN

                                            SA.Nos.1337 & 1338 of 2007


                     [SA.No.1337 of 2007]

                     1.Kasturi

                     2.Sri Ramulu

                     3.Giri
                                                                           ... Appellants

                                                       Vs.
                     Rajasekar
                                                                           ...Respondent

[SA.No.1338 of 2007]

1.Kasturi

2.Meera

3.Sri Ramulu

4.Anusuya

5.Sujitha

https://www.mhc.tn.gov.in/judis SA.Nos.1337 & 1338 of 2007

6.Giri

7.Hemalatha

8.Damodaran ... Appellants

Vs.

G.Rajasekar ...Respondent PRAYER in SA.No.1337 of 2007 : Appeal filed under Section 100 of CPC, against the Judgement and Decree made in A.S.No.28 of 2006 on the file of the Subordinate Judge, Gudiyattam, Vellore District dated 28.02.2007 reversing the well considered decree and judgement made in O.S.No.342 of 1995 on the file of the District Munsif, Gudiyattam, Vellore District dated 11.10.2006.

For Appellant : Mr.K.A.Ravindran For Respondent : M/s. P.Veena Suresh

PRAYER in SA.No.1338 of 2007 : Appeal filed under Section 100 of CPC, against the Judgement and Decree made in A.S.No.27 of 2006 on the file of the Subordinate Judge, Gudiyattam, Vellore District dated 28.02.2007 reversing the well considered decree and judgement made in O.S.No.368 of 1995 on the file of the District Munsif, Gudiyattam, Vellore District dated 11.10.2006.

For Appellant : Mr.K.A.Ravindran For Respondent : Mrs.A.S.Manisha for Mrs.P.Veena Suresh

https://www.mhc.tn.gov.in/judis SA.Nos.1337 & 1338 of 2007

COMMON JUDGEMENT The plaintiffs in a suit OS.No.368 of 1995 on the file of the District

Munsif Court, Gudiyattam, are the appellants. The sole respondent is the

plaintiff in a suit OS.No.342 of 1995 on the file of the very same Court.

Both the suits were presented for declaration of title and for injunction. The

short narration of the facts essential for these appeals are:-

2. The property originally belonged to two brothers namely,

Dhanancheiya Naidu and Sampath Naidu. Subadrammal, the 1st defendant

in the suit OS.No.368 of 1995 was their sister. Out of natural love and

affection, the brothers settled the property in favour of the sister by way of a

registered settlement deed in Document Number 2956 of 1968 dated

30.07.1968. As per the first part of this document, the settlee/sister was

entitled to enjoy the property absolutely and the subsequent clause read that

she is entitled to hold the property during her life time and in case there are

no issues, it will go back to the legal heirs of Dhanancheiya Naidu.

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3. The said Subadrammal sold the property in favour of the

respondent/Rajasekar on 22.02.1991. It is the case of Rajasekar that the

defendants/appellants Kasturi, Sridar and Giri sought to dispossess him on

19.04.1995. Therefore, he presented the suit OS.No.342 of 1995 on the file

of the District Munsif Court, Gudiyattam. The appellants in both the appeals

pleaded that what had been settled in favour of the 1st defendant in

OS.No.368 of 1995 on the file of the District Munsif Court, Gudiyattam was

only a life estate and therefore Subadrammal is not entitled to sell the

property to Rajasekar. They further alleged that the 2nd defendant sought to

trespass into the suit property and therefore they came forward with the

aforesaid suit.

4. The parties went to trial and the plaintiff, Rajasekar examined

himself as PW.1 and one Arangammal as P.W.2. Similarly, the defendants

Giri and Muthumanickam examined themselves as D.W.1 and D.W.2. 11

documents were filed on behalf of the plaintiff/respondent and 7 documents

were filed on behalf of the defendants/appellants.

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5. To complete the narration, it is necessary to point out that during

the life time of Subadrammal, she had filed a suit OS.No.275 of 1982 on the

file of the District Munsif Court, Tirupattur for declaration of title and for

injunction. The suit had been decreed ex parte and therefore, the plaintiff in

the suit OS.No.342 of 1995 relied upon the same in order to argue that they

are entitled for declaration since their vendor’s title had already been

declared.

6. The learned Trial Judge framed a common judgement in both the

appeals. The issue that he framed for answering is “Whether the plaintiffs

are entitled for declaration and injunction as prayed for?”

7. The learned Trial Judge interpreting the document held that what

had been given to Subadrammal was only a "life estate" and that she can

alienate only that right in the property. Since Rajasekar had purchased only

the life estate, he is not entitled for declaration of title.

8. Feeling aggrieved by the decree, the sole respondent to this appeal,

filed A.S.Nos.27 and 28 of 2006 on the file of the Subordinate Judge,

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Gudiyattam. The lower Appellate Court had framed the following issues:-

1. Whether the settlement deed dated 30.07.1968 in

favour of Subadrammal creates only a life estate or full

right to her in the suit property?

2. Whether the sale in favour of the Appellant by

Subadrammal dated 22.02.1991 is valid and the appellant

is entitled to declaration and permanent injunction?

3. Whether the respondents are entitled to

declaration and permanent injunction in respect of the suit

property?

9. The lower Appellate Court took a view that the word “rh;t

Rje;jpukha;” in the settlement deed grants Subadrammal the absolute right and therefore, she is entitled to the property. Consequently, the sale in

favour of Rajasekar is valid. Hence, OS.No.342 of 1995 was decreed as

prayed for and the suit OS.No.368 of 1995 was dismissed. Against this

reversing judgment, the present Second Appeals are presented.

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10. At the time of admission, the following Substantial Questions of

law were framed for consideration :-

1. Whether the certified copy of the sale deed has

been proved under the provisions of Section 65 of the

Evidence Act?

2. Whether the certified copy could prove the

execution of the Sale when the secondary evidence is

admissible under Section 57(5) of the Registration Act to

prove the contents of the document alone?

3. Whether the lower appellate Court is right in

granting the relief to the respondent herein when the

intention of the settlers is to give life estate to the Settlee?

11. The issue that falls for consideration in the appeal is “Whether the

document conveys absolute title or should be restricted as a life estate in

favour of Subadrammal”. The relevant portion of the document is extracted

as follows:-

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“,d;W cd; bgaUf;F brl;oy;bkz;l; bra;J gl;lh Kjypaita[k;

bra;J tpl;nlhk;/ ,d;W Kjy; ePh; rh;t Rje;jpuj;Jld; Mz;L

mDgtpj;Jf; bfhs;s ntz;oaJ/ ePh; brhj;ij ahbjhU tpy;y';fl;Fk;

cl;gLj;jhky; mjpy; tUk; kfNy; ePh; ,Uf;fpw tiuapy; mDgtpj;Jf;

bfhz;L tuntz;oaJ. cdf;F re;jjp ,y;yhtpl;lhy; cdf;F

gpw;ghyj;jpy; nkw;go brhj;J v';fSf;nf ghj;jpag;gl;lnjbahHpa ntW

ahUf;Fk; rk;ge;jg;ll; jy;y”/

12. The very first line conveys that on the date of the settlement deed,

the settlors namely, the brothers Dhanancheiya Naidu and Sampath Naidu

have settled the property in favour of Subadrammal absolutely. The next line

also states that she is entitled to enjoy the property as the absolute owner.

Curiously enough, the subsequent clause speaks about restricting the right

given in favour of Subadrammal. It is this clause and the subsequent clause

which has emboldened the appellants to argue that what has been settled in

favour of Subadrammal as absolute property was “ un-settled” and

converted into a life estate.

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13. I am not willing to read the documents the way the appellant

wants me to read it. The law relating to deeds and documents is well settled.

I would refer to three judgments to substantiate my conclusion:-

i) Ramkishorelal and Another Vs.Kamal Narayan – AIR 1963 SC

890 : 1963 Supp (2) SCR 417.

ii) Kailvelikkal Ambunhi (dead) by Lrs and Ors. Vs. H.Ganesh

Bhandary – AIR 1995 (SC) 2491.

3. Uma Devi Nambiar and others Vs. T.C.Sidhan (dead) – (2004) 2

SCC 321.

14. A perusal of the Judgement of the Constitutional Bench reported

in AIR 1963 SC 890 reveals:-

“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

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Deo Dhabal Deo). 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 is in clear

and unambiguous terms and the later provisions trench on

the same, that the later provisions have to be held to be

void.”

15. Similarly, in Kailvelikkal Ambunhi case, the Supreme Court was

pleased to distinguish between a Will, a settlement deed and a sale deed. In

so far as a Will is concerned, where there is an inconsistency between the

earlier part and the subsequent part, the subsequent part is to prevail. This is

very simple and not far to see because in case of a Will, it is the last wish of

the testator which would prevail. In so far as a sale deed, gift deed,

settlement deed, or a mortgage deed, the previous clause should always

prevail over the later clause because the previous clause vests the title with

the person and it is transfer in praesenti. What has been given under the

document cannot be taken away by the very same document subsequently. If

any attempt was made to incorporate such a clause in a later portion of the

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document, the later clause should be held to be void. Similarly, in the case of

Uma Devi Nambiar and others Vs. T.C.Sidhan (dead), following the

previous judgments, the Court held in Para. No.12 as follows:-

“This rule of interpretation can be invoked if

different clauses cannot be reconciled. (See Rameshwar

Bakhsh Singh v. Balraj Kaur). It is to be noted that rules of

interpretation of Will are different from rules which govern

interpretation of other documents like sale deed, or a gift

deed, or a mortgage deed or, for that matter, any other

instrument by which interest in immovable property is

created. While in these documents, if there is any

inconsistency between the earlier or the subsequent part or

specific clauses, inter se contained therein, the earlier part

will prevail over the latter as against the rule of

interpretation applicable to a Will under which the

subsequent part, clause or portion prevails over the earlier

part on the principle that in the matter of Will the testator

can always change his mind and create another interest in

place of the bequest already made in the earlier part or on

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an earlier occasion. Undoubtedly, it is the last Will which

prevails.”

16. In the present case, my reading of the document shows that the

first clause vests the property absolutely with Subadrammal and the later

clause which attempted to take away the right conferred under the previous

clause is inconsistent and cannot be harmoniously read with the former.

Therefore it has to be treated as void. The property, having vested with

Subadrammal, she is entitled to alienate the property to anyone including

Rajasekar, the sole respondent to the appeal. In order to substantiate his

sale, he has filed a registered copy of the sale deed.

17. It was sought to be argued that a registration copy of a sale deed

ought not to have been relied upon. I would refer to Section 57 sub-clause 5

of the Registration Act which reads as follows:-

“All copies given under this section shall be signed

and sealed by the registering officer, and shall be

admissible for the purpose of proving the contents of the

original documents.”

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18. It is not the case of the appellants that Subadrammal did not

execute the document but that Subadrammal was incompetent to execute a

document conferring title on the respondent. In any event, the certified copy

of the sale deed marked as Ex.A.1 and the parties went to trial on that basis.

The entire case revolved on the right of Subadrammal to execute Ex.A.1 and

not whether Ex.A.1 was a true and genuine document.

19. I am not going to go into the validity of the suit OS.No.275 of

1982 on the file of the District Munsif Court, Gudiyattam. The reason being

in the year 1985 Sampath Naidu died and in the year 1989 Dhanancheiya

Naidu died and the decree was passed in 1984.

20. The learned counsel for the respondent sought to argue that she is

entitled to take assistance of Order 22 Rule 4(4) of the CPC and since the

defendants remained ex parte, she is entitled to the benefit of that Section. It

is no doubt true that under Order 22 Rule 4(4) the Court is empowered to

dispense with notice or the necessity to bring legal heirs on record of the

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deceased defendants/respondents in appeal. This is a power vested in the

Court and not at the discretion left with the parties. No steps had been taken

to file an application under order 22 rule 4(4) and therefore the argument on

the validity of the decree by virtue of order 22 rule 4(4) cannot be

countenanced.

21. Be that as it may, a decree for declaration does not create a right

in a person but merely declares the right possessed by the party on the date

of presentation of the plaint. To put it in other words, a declaratory decree

by the Court does not create a right in a person but all that the Court does

while granting a decree is recognizing the right of the person. The validity or

otherwise of OS.No.275 of 1982 on the file of the District Munsif Court,

Gudiyattam does not make a difference to the present case. It is a side act

which can be ignored. As already stated, Dhanancheiya Naidu and Sampath

Naidu, the owners of the property, had settled the same in favour of

Subadrammal on 30.06.1968. By virtue of the document, she had become

the owner of the property. I do not find any error or perversity in the

judgement of the lower Appellate Court. On the contrary, I concur with the

views taken by it that a later clause will not take away the right already

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conferred by the previous clause in matters of interpretation of settlement

deed. I would add that interpretation applies to a sale deed, mortgage deed

or gift deed. The law relating to interpretation of the aforesaid documents

cannot be applied to Wills.

22. In fine, the substantial questions of law are answered against the

appellants and in favour of the respondent. The judgement and decree of the

Subordinate Court Judge, Gudiyattam in AS.No.28 of 2006 and A.S.No.27

of 2006 dated 28.02.2007 stand confirmed. The suit in OS.No.342 of 1995

on the file of the District Munsif Court at Gudiyattam shall stand decreed

and the suit in OS.No.368 of 1995 on the file of the District Munsif,

Gudiyattam shall stand dismissed. Though, I was inclined to impose cost as

Subadrammal had died on 25.12.1995 and since Rajasekar has been in

possession of the property from 22.02.1991 till date, and since there was a

confusion. On the interpretation of the document, I am not imposing any

cost. Consequently, the above Second Appeals stand dismissed, with no

order as to costs.

06.03.2023 Index : Yes/No

https://www.mhc.tn.gov.in/judis SA.Nos.1337 & 1338 of 2007

Internet: Yes/No Neutral Citation: Yes/No shr

To

1. The Subordinate Judge, Gudiyattam, Vellore District.

2. The District Munsif, Gudiyattam, Vellore District.

https://www.mhc.tn.gov.in/judis SA.Nos.1337 & 1338 of 2007

V.LAKSHMINARAYANAN, J,

shr

SA.Nos.1337 & 1338 of 2007

06.03.2023

https://www.mhc.tn.gov.in/judis SA.Nos.1337 & 1338 of 2007

https://www.mhc.tn.gov.in/judis