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Kasian Pillai Assanaru Pillai v. Meeran Pillai Mohammed Hanifa
Structured Summary of the Provided Opinion
Factual and Procedural Background
The plaint contained schedules of properties that originally belonged to the 3rd defendant (a Muslim woman) and her daughter Nafissa Beevi. Acting as guardian of Nafissa, the 3rd defendant conveyed certain properties to the plaintiff-appellant by document ext. P-7 in the year 1119. On the same day, Item 2 in the B schedule of the plaint was purchased in their names by ext. P-4 using part of the sale consideration; a few months later in the same year Item 1 of the B schedule was purchased by ext. P-5.
In 1124 both Items 1 and 2 of the B schedule were sold by the 3rd defendant to defendants 1 and 2 (the contesting respondents in this second appeal). Nafissa Beevi sued in O.S. 327 of 1962 for cancellation of ext. P-7 to the extent of her share and obtained a decree. Relying on an indemnity provision in ext. P-7, the plaintiff commenced the present suit seeking partition (or alternatively damages charged on the 3rd defendant's share) of the B schedule properties in the possession of defendants 1 and 2.
The trial court (Munsiff) granted the charge as prayed, but on appeal the Additional District Judge disallowed the charge. This second appeal challenges that decision.
Legal Issues Presented
- Whether the plaintiff is entitled to a charge (i.e., a security) over the properties of the 3rd defendant by virtue of the indemnity clause in ext. P-7, such that the 3rd defendant's share in the B schedule properties held by defendants 1 and 2 is liable to be enforced as a charge.
Arguments of the Parties
Plaintiff's Arguments
- The indemnity provision in ext. P-7 created a charge on all the properties of the 3rd defendant.
- Therefore the 3rd defendant's share in the B schedule properties was subject to that charge and enforceable against defendants 1 and 2.
Defendants' Arguments
- No charge arose under the indemnity clause in ext. P-7.
- The parties did not intend to create a charge by that clause.
- The properties sought to be made liable were unspecified and unascertainable; consequently any purported charge is void for uncertainty.
- The district judge principally relied on the ground of uncertainty in vacating the charge decreed by the Munsiff.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Deojit v. Pitambar, I.L.R. 1 Allahabad 275 | Held that a charge on the properties of the executants was not a valid charge (i.e., general reference to executants' properties did not create a charge). | The court relied on this case to support the view that a general indemnity referring to "properties of the executants" does not create a valid charge. |
| Bheri Dorayya v. Maddinatu Ramayya, I.L.R. 3 Madras 35 | A direction to pay out of the debtor's property indefinitely or an indefinite order to satisfy a decree out of the assets of a deceased person does not amount to a charge on specific property. | Used to reinforce the principle that indefinite directions to satisfy liabilities from a person's assets do not constitute a charge on specific property. |
| Manickam Pillai v. Audinarayana Pillai, I.L.R. 34 Madras 47 | A clause in a partition deed for owelty to be met from the properties of the sharers was construed to apply to the properties actually allotted in the schedules of the document. | Cited to show that where property is referred to in schedules or is identifiable within the same instrument, a charge or liability may be confined to those specified properties; by contrast ext. P-7 did not specify such properties. |
| Govindan Kochukunju Pillai v. Idikkula Nina, 15 T.L.J. 245 | Words of similar general import were held to be void for uncertainty. | Relied on to support the proposition that general language in an indemnity clause can be void for uncertainty and thus cannot create a charge. |
| Mohini Debi v. Purna Sashi Gupta, A.I.R. 1932 Calcutta 451 | "In order to make the property security for payment of money, there should be some expression to signify that the property is liable for such payment and for that purpose the property must be specified and not described in such general terms as in the present case." | The court invoked this statement to emphasize that some expression identifying the property (or how it can be ascertained) is necessary to create a charge; general descriptions are insufficient. |
| Vyasyaraju Venkataratnam Raju v. Damodar Sahu, A.I.R. 1957 Orissa 32 | Specific immovable property must be made security for the payment of money and must be so made in unambiguous terms. | Applied to underline the requirement that a charge on immovable property must identify the property with sufficient certainty. |
| Mittinti Narasimhamurthi v. Pandiri Satyanandam, A.I.R. 1941 Madras 794 | Bench decision holding that a charge created by a decree over all property of the judgment-debtor, both movable and immovable, is valid because the property charged by the decree could be ascertained at any moment. | The court respectfully declined to follow this decision, stating inability to agree with it and preferring the view that an intention to create a charge and ascertainability of the properties must be shown. |
Court's Reasoning and Analysis
The court examined the indemnity clause in ext. P-7 and analyzed whether the language used manifested an intention to create a charge on the executant's properties. The analysis proceeded in the following steps, based on the text of the opinion:
- Interpretation of words in local context: The court observed from its experience in the area that the words used in the indemnity clause are commonly used to denote the extent of personal liability rather than to indicate the creation of a charge on property. The court stated it could not recall an instance where such words were used to create a charge in that locality.
- Intention to create a charge: The court emphasized that an intention to create a charge is generally made manifest by the use of apt words or expressions. It concluded that the words in the indemnity clause of ext. P-7 do not point to an intention on the parties' part to create a charge on any property.
- Specification and ascertainability of property: The court held that the properties alleged to be subject to the indemnity were not specified. A statement that loss "may be recouped from all the properties, movable and immovable of both the executants" does not identify particular property. While a charge on immovable property need not identify boundaries or survey numbers, there must be some expression signifying what the property is or how it can be ascertained. A general description of "properties movable and immovable of the executants" would require a roving enquiry to ascertain and therefore is insufficient; such a charge would be void for uncertainty.
- Reliance on precedent: The court cited multiple decisions (summarized in the table above) that support the conclusion that general language referring to a person's assets does not create a charge where the charged property is not specified or ascertainable. The court used these authorities to bolster its view that the indemnity clause does not create a valid charge.
- Rejection of contrary authority: The court considered the bench decision in Mittinti Narasimhamurthi (A.I.R. 1941 Madras 794), which held that a decree creating a charge over all the judgment debtor's property was valid. The court respectfully declined to follow that view, stating its preference for the requirement that an intention to create a security and definiteness as to the properties charged must be shown under Section 100 of the Transfer of Property Act.
- Temporal and factual considerations: The court noted factual timing: Item 2 of the B schedule was purchased on the same day a schedule property was sold, but Item 1 was purchased only a few months later. The court held that it could not have been the 3rd defendant's intention to create a charge on Item 1 by ext. P-7, and that even Item 2 was not specifically charged by ext. P-7.
Holding and Implications
SECOND APPEAL DISMISSED WITH COSTS.
Holding: The court held that the plaintiff's claim to a charge under the indemnity clause in ext. P-7 fails. The indemnity clause did not create a charge on the 3rd defendant's properties because (a) the language used was interpreted as creating personal liability, not a property charge, (b) there was no manifest intention by apt words to create a security on property, and (c) the properties alleged to be subject to the charge were unspecified and unascertainable rendering any purported charge void for uncertainty.
Immediate consequence: The plaintiff's request to enforce a charge over the 3rd defendant's share in the B schedule properties against defendants 1 and 2 is denied; the decree of the Munsiff granting a charge was set aside by the Additional District Judge and this court dismissed the plaintiff's second appeal, awarding costs against the appellant.
The opinion does not purport to lay down a new, broad precedent beyond the application of existing authorities and principles summarized above; it resolves the present dispute by applying those principles to the facts before the court.
1. The properties in a schedule of the plaint belonged to the 3rd defendant, A muslim woman, And to her daughter nafissa beevi. The 3rd defendant, Acting also as the guardian of the latter, Conveyed the properties to the plaintiff - appellant: by ext. P - 7, In the year 1119. On the same day, Item 2 in b schedule of the plaint was purchased in their names by ext. P - 4 with part of the sale consideration, And a few; months later in the same year, Item 1 of b schedule also was purchased similarly by ext. P - 5. In the year 1124, Both items 1 and 2 of b schedule were sold by the 3rd defendant to defendants 1 and 2, Who are the contesting respondents in this second appeal. Nafissa beevi sued in o. S. 327 of 1962 for cancellation of ext. P - 7 to the extent of her share and succeeded in obtaining a decree. Relying on the provision for indemnity in ext. P7, The plaintiff commenced this suit for partition of the share of the 3rd defendant in b schedule properties in the possession of defendants 1 and 2, And in the alternative for damages charged on such share. The first court gave him a charge as prayed for, But on appeal the additional district judge disallowed the charge.
2. The only question for decision is whether the plaintiff is entitled to at charge or not. It was contended on his behalf, That by the provision for indemnity in ext. P - 7, A charge was created on all the properties of the 3rd defendant and that therefore her share in b schedule properties was subject to such charge and was enforceable against defendants 1 and 2. According to defendants 1 and 2, No, Charge arose under the clause for indemnity in ext. P - 7, The parties had no intention to create a charge, And the properties sought to be made liable being unspecified and unascertainable, The charge, If any, Was void for uncertainty. It was on the last ground that the district judge relied principally, For vacating the charge decreed by the munsiff. I am of the opinion, That the plaintiff has to fail.
3. The relevant, Part of the indemnity clause in ext. P - 7 is as follows:
in my experience, However limited it may be, Of the area from which this case arises, Words like these are meant to denote the fullness and extent of personal liability, And i am not able to recall one instance in which they were meant to create a charge. Such words are so familiar in the language of conveyancers and document writers in that area, That they have almost become a term of art to denote personal liability. An intention to create a charge is generally made manifest by the use of apt words such as omv*p in that area, In other areas. I. 'am of the view, That the words in the indemnity clause in ext. P - 7 do not point to an intention of the parties to create a charge, On any property whatever.
4. The properties are also not specified. To say that the loss may be recouped from all the properties, Moveable and immovable of both the executants, Is not to say that any specified property was charged; as to what are the properties of the executants can be ascertained only after a roving enquiry, Which after all, May not yield results which are conclusive. It is true that to create a charge on immoveable property, It need not be specified by its boundaries, Or extent, Or survey number, But there must be some expression to signify what the property is or how it can be ascertained. A general description as the properties moveable and immoveable of the executants two in number, Would hardly suffice to meet this requirement, And the charge if any, On such properties is void for uncertainty.
5. There are decided cases which support this view. In deojit v. Pitambar, I. L. R. 1 allahabad 275, A charge on the properties of the executants was held not to create a charge. In bheri dorayya v. Maddinatu ramayya i. L. R. 3 madras 35 a direction to pay out of the debtor's property indefinitely or an indefinite order for the satisfaction of a decree out of the assets of a deceased person, Was held not to amount to a charge on specific property. In manickam pillai v. Audinarayana pillai i. L. R. 34 madras 47 a clause in a partition deed for owelty, To be met from the properties of the sharers, Was construed to apply to the properties allotted to them in schedules a and b of the document. In govindan kochukunju pillai v. Idikkula nina 15 t. L. J. 245 words of similar import were held to be void for uncertainty. The court observed in mohini debi v. Purna sashi gupta a. I. R. 1932 calcutta 451 that
"in order to make the property security for payment of money, There should be some expression to signify that the property is liable for such payment and for that purpose the property must be specified and not described in such general terms as in the present case."it was held in vyasyaraju venkataratnam raju v. Damodar sahu a. I. R. 1957 orissa 32 that specific immoveable property must be made security for the payment of money and must be so made in unambiguous terms.
6. As against these, Learned counsel relied on the bench decision in mittinti narasimhamurthi v. Pandiri satyanandam a. I. R. 1941 madras 794 holding that a charge created by a decree over all the property of the judgment - debtor both moveable and immoveable is valid, On the ground that the property charged by the decree could be ascertained at any moment. Speaking with respect, I cannot find my way to agree with this decision. I am of the opinion, That unless an intention is evinced by the parties concerned to create a security upon property by the use of apt words or expressions and unless the properties are themselves specified or can be ascertained with definiteness, A charge cannot be held to arise under s. 100 of the transfer of property act.
7. In any view, Though item 2 of b schedule was purchased on the same day on which a schedule property was sold, Item 1 of b schedule was purchased only a few months later and it could certainly not have been the intention of the 3rd defendant to create a charge upon that item by ext. P - 7. Even item 2 of b schedule was not specifically charged under ext. P - 7.
in the result, I dismiss this second appeal with costs.
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