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Freemason Lodge v. Dr. Raman

Kerala High Court

Jun 29, 2016

Judgment

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Judgment Summary: R.S.A. No. 592 of 2007 (K. Abraham Mathew J.)

Factual and Procedural Background

The transferor, Mabella Williams, owned 60 cents of land with buildings. On 31.3.1993 she executed Ext B1 sale deed in favour of the first respondent, which described two items of property; Item No.2 in that deed was described as the first floor of a building together with the proportionate undivided right in the land. Ten months later the transferor executed Ext A1 sale deed selling 5.879 cents with the building thereon to the first appellant (the second appellant being the lodge secretary). The first respondent claimed that the property sold under Ext A1 (including the building first floor) was the same property already sold to him by Ext B1. Both parties constructed staircases into the disputed property and both claimed title to the same portion (the "disputed property").

The appellants filed a suit for a perpetual injunction restraining the respondents from trespassing into the plaint-schedule property (the property described in Ext A1) and for mandatory relief to remove the staircase erected by the respondents. The respondents counter-claimed for reciprocal relief. The trial court dismissed the appellants' suit and allowed the counter-claim; the appellate court in A.S. No.56/2003 confirmed that decree. This Regular Second Appeal (R.S.A. No.592 of 2007) was finally heard and judgment delivered on 29.6.2016, in which this Court allowed the appeal and set aside the impugned decree.

Legal Issues Presented

The opinion records that the court "formulated three substantial questions of law for hearing." Those three questions are not set out in the text of the opinion provided.

Fallback: The opinion addresses a procedural matter and does not frame distinct legal issues.

Arguments of the Parties

Appellants' Arguments

The transferor, Mabella Williams, did not intend to transfer the disputed property to the first respondent.
Ext B1 sale deed does not prove transfer of the disputed property to the first respondent.
The appellants assert title under Ext A1 (and prior possession), seeking a declaration of title, injunction against trespass and removal of the respondents' staircase.

Respondents' Arguments

The first respondent claimed that the building sold to the appellants under Ext A1 (the first floor and undivided land) was the same property already sold to him earlier by Ext B1.
The respondents counter-claimed for a perpetual injunction and mandatory relief directing the appellants to demolish and remove the staircase they had constructed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chunchun Jha v. Ebadat All and another (AIR 1954 SC 345)	Where words are express and clear, effect must be given to them and extraneous enquiry into what was thought or intended is ruled out; if there is ambiguity, surrounding circumstances may be looked to to determine intention.	The Court relied on this principle to emphasize that if the operative words in Ext B1 are clear (showing transfer of 10 cents only), the court must give effect to those words rather than resort to extraneous evidence; only ambiguity would permit consideration of surrounding circumstances.
Mackenzie v. Duke of Devonshire (1896) A.C. 400	Recitals, though not operative, help in interpreting a deed when there is doubt; if recitals and operative parts are in harmony, interpretation is straightforward.	The Court examined recitals in Ext B1 and found them in harmony with the operative part, showing sale of 10 cents and building No.27/358; the recitals supported the conclusion that Ext B1 transferred only the specified 10 cents.
General Assurance Society Ltd v. Chandmull Jain and another (AIR 1966 SC 1644)	Rule of interpretation contra proferentem where a document prepared by one party should be construed against that party.	The Court applied contra proferentem because Ext B1 was prepared by the first respondent; therefore ambiguities or incorrect particulars in Ext B1 were construed against the first respondent.
United India Insurance Co. Ltd. v. Pushpalaya Printers (2004) 3 SCC 694	Cited alongside the contra proferentem principle to support construing documents prepared by one party against that party.	The Court cited this authority in support of construing Ext B1 against the first respondent (who had the deed prepared).
M/s S.K.L. Co. v. Chief Commercial Officer (AIR 2016 SC 193)	Cited in the context of the rule that a document prepared by a party should be construed against the preparer (contra proferentem).	The Court relied on this authority, together with others, to justify construing Ext B1 against the first respondent because he prepared the document.

Court's Reasoning and Analysis

The Court performed a textual and contextual analysis of Ext B1 (the deed executed in favour of the first respondent) and related documents, applying established rules of document interpretation and the facts shown by the recitals, operative clauses, boundaries and conduct of the parties.

The Court extracted the recitals and operative clause of Ext B1 and identified that the recitals repeatedly referred to the sale of "10 cents" and a building numbered "XXVII/358", and showed payment of Rs.1,80,000 as consideration for that 10 cents. The Court found harmony between recitals and the operative part, which expressly transferred "the aforesaid property having an extent of 10 cents".
The Court observed that the building number stated in Ext B1 for the disputed property was incorrect (Ext B1 shows a wrong building number). Because the operative description and recitals consistently relate to 10 cents and building No.27/358, the incorrectly stated building number undermined any claim that Ext B1 conveyed the disputed property.
The Court examined the boundary descriptions: item No.2 (the disputed property) in Ext B1 was shown as the southern property adjoining item No.1, and the southern boundary of item No.1 was described as the transferor's remaining portion of property. The Court treated that as an indication that item No.2 was not transferred in Ext B1 (had it been transferred, the southern boundary of item No.1 would have been described differently).
The Court applied the contra proferentem principle because Ext B1 was prepared by the first respondent (as admitted in DW3's cross-examination). The Court relied on authorities cited (including General Assurance and other Supreme Court decisions) to construe ambiguous particulars against the preparer, i.e., against the first respondent.
Synthesizing the textual analysis and contra proferentem rule, the Court concluded there was (a) no agreement for sale of the disputed property to the first respondent, (b) no intention of the transferor to sell the disputed property to him, (c) no payment of consideration for that property to the transferor, and (d) no effective transfer of that property by Ext B1.
The Court held that a subsequent rectification deed executed by the transferor after institution of suit (Ext B2, and a rectification referred to as Ext B3 in the opinion) could not confer title on the first respondent independently where no transfer had been effectively made by Ext B1; the rectification could not create title separate from the deed it purported to correct.
The Court took account of evidence of possession and taxation: the first appellant had been in possession of the plaint-schedule property (including the disputed portion) since 1978 and had its name entered in municipal assessment records (Ext A7 building tax receipt); by contrast, the first respondent paid tax for the building in the disputed property only after the execution of the rectification deed during suit. This conduct supported the conclusion that the appellants held title and possession.
On this combined factual and legal basis the Court concluded that the courts below erred in treating Ext B1 as transferring the disputed property to the first respondent; instead the appellants were entitled to the reliefs claimed in the suit.

Holding and Implications

Core Ruling: The appeal is allowed and the impugned decree is set aside.

Consequent orders and direct effects on the parties (as declared by the Court):

The first appellant's title to and possession of the plaint-schedule property (the property described in Ext A1, which includes the disputed property) is declared in favour of the appellants.
The respondents are directed to demolish and remove the foundation and the portion of the staircase constructed by them abutting the plaint-schedule property.
The respondents are perpetually prohibited from trespassing into the plaint-schedule property and from interfering with the first appellant's possession and enjoyment thereof.
The appellants are awarded costs in this Court as well as in the courts below.

Broader implications: The opinion confines itself to applying established principles of deed interpretation (effect to clear words, recitals assisting interpretation, and contra proferentem where a deed is prepared by one party) to the facts. The judgment invalidates the lower courts' findings as to transfer under Ext B1 and vindicates the appellants' title and possession; the opinion does not purport to lay down a new legal principle beyond the application of these pre-existing rules to the facts of this case.

Signed: K. ABRAHAM MATHEW, J. — Dated: 29.6.2016

Show all summary ...

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

WEDNESDAY, THE 29TH DAY OF JUNE 2016/8TH ASHADHA, 1938 RSA.No. 592 of 2007 (D)

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AGAINST THE JUDGMENT IN AS 56/2003 of I ADDITIONAL SUB COURT, THRISSUR

DATED 26-02-2007

AGAINST THE JUDGMENT IN OS 2841/1998 of PRINCIPAL MUNSIFF COURT,THRISSUR

DATED 27-03-2000 APPELLANTS/APPELLANTS/PLAINTIFFS:

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1. FREEMASON LODGE,

THRISSUR,

REPRESENTED BY ITS PRESENT MASTER.

2. THE SECRETARY,

FREEMASON LODGE, THRISSUR.

BY ADV. SRI.BECHU KURIAN THOMAS, SENIOR

RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1. DR. RAMAN, AGED 53 YEARS,

S/O MOOTHEDATH VIJAYARAGHAVAN, RESIDING AT GOSAIKUNNU,

KURIACHIRA,, THRISSUR.

2. MR.C.D.GOVINDAN,

XXVIII/360, MUSEUM ROAD, THRISSUR.

R1 BY ADVS. SRI.C.CHANDRASEKHARAN

SRI.K.C.VISWAMBHARAN

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 3-06-

2016, THE COURT ON 29.6.2016 DELIVERED THE FOLLOWING:

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K.ABRAHAM MATHEW J.

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R.S.A.No.592 of 2007

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Dated this the 29^thday of June, 2016

JUDGMENT

One Mabella Williams was owner of 60 cents of land and the buildings thereon. On 31.3.1993 by Ext B1 sale deed she sold a portion of it to the first respondent. There are two items of properties in it. Item No.2 is the first floor of a building and the undivided land on which the building is situated. Ten months later, by Ext A1 sale deed, she sold 5.879 cents with the building thereon to the first appellant of which the second appellant is the secretary. The first respondent claimed that the building in respect of which Ext A1 was executed is the one the first floor of which with the undivided right in the land which was already sold to him by Ext B1 sale deed earlier. The first respondent along with the second respondent put up a staircase in the property. The appellants also put up a staircase. The property to which both parties claim title is hereinafter called the disputed property. According to the appellants, Mabella did not intend to transfer the disputed property to the first respondent and Ext B1 sale deed does not prove transfer of it to the first respondent. The appellants filed the suit for a perpetual injunction prohibiting the respondents from trespassing into the property covered by their Ext A1 sale deed which is the plaint schedule property and for a mandatory injunction directing them to remove the staircase put up by them in the disputed

R.S.A.No.592 of 2007 2 property. The respondents made a counter claim praying for a perpetual injunction prohibiting the appellants from trespassing into the disputed property and for a mandatory injunction directing the appellants to demolish and remove the staircase put up by them. The trial court dismissed the suit and allowed the counter claim. In A.S.No.56 of 2003 the decree was confirmed.

2. The courts below held that the disputed property belongs to the first respondent as it is a subject matter of the sale evidenced by Ext B1 sale deed executed in his favour and on the transfer of title to him the transferor could not have given title to the first appellant. To enter the finding the courts below relied on the oral evidence also of the transferor, who was examined as DW3.

3. This court formulated three substantial questions of law for hearing.

4. In Ext B1 sale deed there are two items of properties. Their descriptions are extracted below:

Item No.1

"A piece and parcel of land having an extent of 10 Cents having pandaravaka rights with all the improvements, easements and other similar rights appurtenant thereto and the building numbered XXVII/358, the water and electric connections, security deposits, meters and fittings situated therein and all rights. Eight Cents of lands equivalent to Three decimal Two four Ares are comprised under Sy.No.Ninety Seven Sub Division No.Part. Total Extent of Sy.No.is 0 Acre 51 Cents. Two Cents of lands comprised under Sy.No.Ninety eight sub division

R.S.A.No.592 of 2007 3 No.Part and equivalent to Zero decimal eight one ares. Total extent of the Sy.No. is 0 Acre 65 Cents."

Item No.2

"The first floor of the building numbered XXVII/382/1 having the plinth area of 1.07 Cents (36' x 13'), the electric fittings, all the wooden and steel installations and the proportionate indivisible right of the land. The said area is equivalent to zero decimal four zero are and having pandaravaka right".

5. The properties sold to the appellant later under Ext A1 sale deed is described in it as follows:

"A piece and parcel of land having an extent of 5.879 cents having pandaravaka rights with all the improvements, easement and other similar rights appurtenant thereto and the building No.XXVII/359, with water and electric connections, security deposits, meters and fittings situated therein and all rights and compound walls."

6. At once it may be noted that the number of the building given in the description in the two documents is not the same. It is not in dispute that the number given in Ext B1 sale deed of the first respondent is not the correct number of the building in the disputed property.

7. The ordinary rule of interpretation of documents is that the intention of the parties must be discovered, if possible, from the expressions they have used in it. Thus courts below did not make any attempt to discover the intention of the

R.S.A.No.592 of 2007 4 parties from the statements in Ext B1 sale deed; instead they relied on irrelevant and immaterial facts disclosed in the evidence of the witnesses.

8. In Chunchun Jha v. Ebadat All and another (AIR 1954 SC 345) the Supreme Court held that 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.

9. In Mackenzie v. Duke of Devonshire (1896) A.C.400 Lord Halsbury stated that a preliminary statement of what the maker of the deed intended should be the effect and purpose of the whole deed when made. Though it is the operative part that really effects the transfer and the recitals are not necessary part of it and have no effect or operation, they help the court in interpreting it in case of doubt as they reveal the intention of the transferor. If the recitals and the operative part of the document are in harmony, ordinarily,

R.S.A.No.592 of 2007 5 there is no difficulty in interpreting it.

10. The recitals in a document give the brief history of the property upto its vesting in the transferor and the circumstances which lead up to the necessity of executing the document. There are two kinds of recitals. Narrative recitals and introductory recitals. The former contain the facts and circumstances which show the nature of the interest to be dealt with, and the latter the motive or intention behind the execution of the deed.

11. The relevant parts of the recitals in Ext B1 sale deed executed by the transferor (DW3) in favour of the first respondent are extracted below:

"And whereas for the purpose of disposal of the properties of 10 cents the vendor has laid a road having 16 (sixteen) lings breadth on the Eastern side of the schedule properties and North wards from the Municipal road and the vendor has assured the purchaser that the schedule properties and the lands pertaining to the said road are completely free from mortgage, charge, lien, attachment, suit, arrears of taxes and other dues, claims of workers and other persons, proceedings under the Kerala Land Reforms Act, Land Acquisition Act and other encumbrance and impediments whatsoever.......................... ....... The building in the schedule properties numbered XXVII/358 has been leased out to Mr. Thashnath

R.S.A.No.592 of 2007 6 Sarangadharan for a monthly rent of Rs.400/- and no advance or security has been collected or received by the vendor and there is no arrear of rent upto date. The vendor has assured the purchaser that the purchaser has full power to continue the lease, collect the rent or to evict the lessee.................................................... ....... In pursuance of the said agreement and in consideration of a total sum of

Rs.1,80,000/- (Rupees One lakh and Eighty thousand only) inclusive of the easement

right of the said road which has been paid to the vendor by the purchaser by way of

Cheque No.764691 dated 31.3.93".

12. The recitals extracted above make the following facts clear:

a. The transferor set apart a portion of her property for a road to facilitate sale of 10 cents.

b. The agreement between the transferor and the first respondent was for sale of 10 cents only. c. The consideration of Rs.1,80,000/- fixed by the parties was only for 10 cents.

d. The first respondent paid only Rs.1,80,000/- to the transferor.

e. Only one building existed in the property agreed to be sold, the number of which was 27/358, and the possession of which was with one Sarangadharan, who was its lessee.

R.S.A.No.592 of 2007 7 f. The assurance as to the transferor's title and the property being free from encumbrance was only in respect of 10 cents of land and the building bearing No.27/358.

13. Now the operative portion of Ext B1 sale deed may be examined. It runs thus:

".........The vendor hereby transfers, conveys, assigns and delivers possession unto the purchaser by way of absolute sale, all estate, right, title, interest claims and privileges in the aforesaid property having an extent of 10 cents more particularly described in the schedule hereunder written and the easement right of the said road (Hereinafter referred to as the said property) together with all the

improvements in the said property and all rights appurtenant thereto and together with the benefits of all covenants and indemnities to which the vendor is entitled to in respect thereof.

14. The express and plain words used in the operative part admits of any doubt that the only property which was transferred and the possession of which was delivered is 10 cents only.

15. The habendum in Ext B1 only mentions the property mentioned in the first part of the document, which is only 10 cents and the building bearing No.27/358.

16. There is no lack of clarity in the facts and

R.S.A.No.592 of 2007 8 circumstances mentioned in the recitals in Ext B1 sale deed. They are in complete harmony with the operative portion of the document.

17. The description of the boundaries of the properties in Ext B1 sale deed also throws some light on the point in dispute. Admittedly, item No.2 in Ext B1 sale deed, which is the property in dispute is the southern property adjoining item No.2 in the deed. The southern boundary of item No.1 is shown as the remaining portion of the property of the transferor. This is also an indication that the transferor did not transfer item No.2 in Ext B1 sale deed. If she had sold it, the southern boundary of item No.1 would have been mentioned as item No.2.

18. It came out in the cross-examination of the transferor, who was examined as DW3 that Ext B1 sale deed was got prepared by the first respondent-transferee. When the document the interpretation of which is required was prepared by one of the parties to the transaction, it should be interpreted against him. This rule of interpretation is called contra prefertem. This rule was applied in General Assurance Society Ltd v. Chandmull Jain and another

R.S.A.No.592 of 2007 9

(AIR 1966 SC 1644) which is a Constitution Bench decision,

United India Insurance Co. Ltd. v. Pushpalaya Printers . (2004)3 SCC 694) and M/s.S.K.L.Co. v. Chief Commercial Officer(AIR 2016 SC 193). Ext B1 should be construed against the first respondent.

19. To sum up, there was neither agreement between the first respondent and his transferor for sale of the disputed property, nor the transferor had intention to sell it, nor was there payment of consideration for it nor was there sale of it by Ext B1 sale deed. Merely because the disputed property happened to be included in the sale deed, the first respondent cannot claim title to it.

20. In Ext B1 sale deed the number of the building situated in the disputed property is shown as 27/382/1, which is admittedly wrong. After the institution of the suit the transferor executed Ext B2 rectification deed stating that the correct number of the building, the first first floor of which was sold to the first defendant was 27/359. Since there was no transfer of the said property in Ext B1 deed, the rectification deed does not serve any purpose. It cannot confer title on the first respondent independent of Ext B1 sale deed.

R.S.A.No.592 of 2007 10

21. It is seen from Ext A3 agreement for sale executed between the transferor and the first appellant that the latter had been in possession of the plaint schedule property including the disputed property since 1978. After the sale in its favour the first appellant got its name entered in the assessment register maintained by the local authority which stands proved by Ext A7 building tax receipt. On the other hand, the first respondent paid tax for the building (first floor) in the disputed property only after the execution of Ext B3 rectification deed during the pendency of the suit.

22. The courts below went wrong in holding that by Ext B1 sale deed the first respondent got title to the disputed property. The first appellant has obtained title to the property in dispute. The appellants are entitled to the reliefs prayed for in the suit. The impugned decree is liable to be set aside. In the result, this appeal is allowed. The impugned decree is set aside. The first appellant's title to and possession of the plaint schedule property is declared. The respondents are directed to demolish and remove the foundation and the portion of the staircase constructed by them abutting the plaint schedule property. They are perpetually prohibited from

R.S.A.No.592 of 2007 11 trespassing into the plaint schedule property and interfering with the first appellant's possession and enjoyment thereof. The appellants are entitled to their costs in this court as well as the courts below.

Sd/-

K.ABRAHAM MATHEW

JUDGE

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