Kerala High Court
Vasudeva Prabhu And Ors. vs Madhava Prabhu And Ors. on 30 October, 1992
Equivalent citations: AIR 1993 KERALA 68, (1993) 1 KER LJ 113, (1993) 1 KER LT 26, (1993) 2 RENCJ 443, (1993) 3 CURCC 368
JUDGMENT P.A. Mohamed, J.
1. This Second Appeal arises from a suit for mandatory injunction. The plaintiffs 1, 2, 4 and 5 are the appellants. Fifth respondent in the appeal is third plaintiff. The respondents 1 to 4 are the defendants. The trial Court granted a decree directing the defendants "to dismantle and remove closed portions of two gates in the compound walls and restore B schedule pathway to its original position". In the appeal by the defendants, the above decree was reversed and suit was accordingly dismissed. Hence this second appeal.
2. The facts are summarised briefly thus :
One Kesava Prabhu had executed a Will (Ext.A1) in the year 1122 M.E. bequeathing his properties to his three sons and others. Ext.Al deals with the properties set apart in different schedules. The schedules B, C & D are alone relevant in this case. Item No. 1 in B schedule was allotted to Rama Prabhu, father of defendants 1 and 2. Item No. 1 in B schedule was allotted to Guna Prabhu.
Item No. 1 in D schedule was allotted to Vasudeva Prabhu (first plaintiff). Three street houses and their site measuring 18 cents are the properties allotted to these three sharers. There is a public road on the northern side of B schedule item No. 1. On the rear of three houses, there is a plot of land, 65 feet long and 1 1/2 koles wide used as a pathway leading to the road. In Ext.A1 Will, the testator had reserved this pathway for the use of all sharers as common property. This pathway was there mainly for the purpose of scavenging and for other purposes in relation to the convenient enjoyment of D schedule item No. 1. After the death of testator, the properties as per Schedules B, C and D were devolved on the sharers subject to the reservation relating to pathway. The plaintiffs had been using the pathway without any obstruction from others. The allegation of the plaintiffs was that in the first week of December, 1981 the defendants had removed two gates in the boundary walls and closed the pathway and thus they were prevented from using it for the enjoyment of their properties. It was under that situation the present suit was filed. The first item of D schedule to the Will is the plaint A schedule property. The plaint B schedule is the pathway reserved for common use.
3. The suit claim was resisted by the defendants contending that the use of the pathway was unnecessary inasmuch as plaintiffs and other sharers were having road frontage to their properties. It was further claimed that the bucket-type of latrines having been discontinued, the right reserved in Ext.A1 Will for the use of pathway had been extinguished. According to them, the pathway was meant for scavenging alone. However, the defendants did not deny the removal of gates and closure of pathway but according to them it was done not during the period as alleged by the plaintiffs.
4. The lower appellate Court agreed with the findings of the trial Court that the grant reserved in respect of plaint B schedule property was for the purpose of scavenging alone and the right so granted had not extinguished as a result of the subsequent events. The appellants had raised a plea that the plaint B schedule pathway was meant for other purposes also besides scavenging. In order to hold that the right of pathway had been extinguished the lower appellate Court placed reliance on Section 38 of the Indian Easements Act, 1882.
5. The decision in this appeal is largely centres round the interpretation of Ext.A1 Will executed by deceased Kesava Prabhu. The cardinal rule to be 'observed by Courts' while construing a Will is to ascertain the intention of the testator. It is not always an easy task to bring out the real intention of the testator by reading the deed alone. The Privy Council in Venkata Narasimha Appa Row v. Parthasarathy Appa Row, (41 IA 51), while construing a Will observed :
".......which are often summed up in somewhat picturesque figure. 'The Court is entitled to put itself into the testator's armchair'."
While discussing the law on the subject, Lord Denning M. R. said :
"True it is that you must discover his intention from the words he used : but you must put upon his words the meaning which they bore to him. If his words are capable of more than one meaning, or of a wide meaning and a narrow meaning, as they often are, then you must put upon them the meaning which he intended them to convey, and not the meaning which a philologist would put upon them. And in order to discover the meaning which he intended, you will not get much help by going to a dictionary. It is very unlikely that he used a dictionary, and even less likely that he used the same one as you. What you should do is to place yourself as far as possible in his position, taking note of the facts and circumstances known to him at time; and then say what he meant by his words."
(The Discipline of the Law, 1979 Edn. page 25) When the Court applies the above tests it can very well ascertain as to how the mind of the testator did visualise the whole problem at the time of execution of the Will. The intention has to be gathered primarily from the language employed in the document by reading it as a whole. For arriving at the true intention, the Court may be justified in considering the surrounding circumstances, the position of the testator, the family relationship, the probability that he would use the words in particular sense etc. (Gnambal Ammal v. T. Raju Ayyar, AIR 1951 SC 103). This rule is seen adopted in S. 75 of the Indian Succession Act, 1925.
6. The relevant portion dealing with the reservation of pathway contained in Ext.A1 Will, is extracted hereunder : .
(matter in vernacular, deleted-- Ed.) The reservation of pathway as common property is seen recited in the above one sentence which contains 1 to 7 clauses. The very purpose of the said recital is to reserve the pathway to enter into the public pathway as provided in clase 3. The purpose of the pathway is described in Clause 4 as (matter in vernacular, deleted-- Ed.) It indicates that the reservation of pathway is also for the convenience of the scavenging service. That means the pathway serves other purposes as well. What is provided in Clause 1 is (matter in vernacular, deleted-- Ed.) This clause may perhaps be interpreted that the only purpose of the pathway is for the use of latrines, if it is read alone. It is always the later recital in a deed which prevails over an earlier recital. In this regard I respectfully agree with the view of the Patna High Court in Harihara Prasad v. Bhagwandas; reported in AIR 1972 Patna 146. The above principle is in consonance with the maxim "Cum duo inter se pugnantia reperiunter in testamento, ultimum ratum est". Where two clauses repugnant to each other are found in a Will, the last prevails.
7. Thus the main intention of the testator is to reserve a pathway, one of the purposes being to afford convenience for scavenging service. When the intention is the reservation of pathway it necessarily implies that the same can be used for the purposes for which a pathway is ordinarily intended to serve. There may be a specified purpose but that does not mean it cannot be used for any other purpose. If the intention is that the pathway shall not be used for purposes other than the specified purpose, the testator would have definitely incorporated some provision in the Will prohibiting such use. No such provision, much less any indication is seen any where in the Will. Further Clause 5 of the recital directs that the pathway shall be preserved for ever as existed now. That necessarily means, there was an existing pathway. Therefore, the contention of the appellants that the plaint B schedule pathway was intended to be used for purposes' other than scavenging appears to be correct.
8. Lord Abinger, C. B. observed in Cowling v. Higginson, (1838) 4 MEE & W 245 :
"If a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes;"
The oral evidence given by the first appellant as P. W. 1 sufficiently enumerates the various purposes for which the said pathway was being used in addition to scavenging service. The tenor of Clause (4) of recital contained in the Will also lends support to the view that the pathway was being used for other purposes as Well. ' .
9. What is the nature of the right of enjoyment in respect of pathway reserved in the Will? This question has necessarily to be examined in order to resolve the dispute in this case. Clause 1 shows that the pathway is intended for the purpose of latrines in all the three items allotted to different sharers. Clause 6 provides that sharers of B, C and D schedules or their successors-in-interest shall not create any obstruction for enjoyment of pathway. These clauses establish that the pathway is intended for the common use by all the sharers, who have some manner of rights in the land where the pathway exists. The provisions for common use and common mandate to all sharers guarantee the existence of co-ordinate interest of all sharers in the pathway. In theory they are interested in every infinitesimal portion of the pathway. Each sharer has the right to be in possession of every part and parcel of the pathway, for, it is reserved for the common enjoyment of three street houses with latrines, separately allotted to them. Under this situation it is not possible for this Court to pronounce the nature of the right preserved for enjoyment of pathway as par Ext.A1 Will, as something other than the co-ownership right.
10. The next question that falls for consideration is whether a co-owner can claim easementary right in respect of the land enjoyed by him as co-ownership property. "Res suanemini servit". No one can have servitude over his property. Servitude includes not only profits a prendre but also easement. Both these rights can be claimed only in respect of land belonging to another. In the case of easement there may be dominant and servient heritage. It pre-supposes the existence of two owners, one dominant and the other servient. These requirements are well noticed in the definition of 'easement' under Section 4 of the Easements Act. The words 'not of his own' contained in the definition has special significance, for, no person can have under any circumstances a right of easement on his own land. The reason is that all acts done by him in respect of the property are acts done in exercise of his right as owner of the land. This reason is equally applicable in the case of co-ownership property where also the acts done by him is in exercise of his right as one of the owners of the land. The following decisions lend support to the views expressed above.
11. In Marghabhai Vallavbhai v. Motibhai Mithabhai, AIR 1932 Bom 513, it is held thus (at page 514):
"A person cannot acquire an easement unless he acts with the knowledge that it is a case of dominant and servient tenement and he is exercising a right over property which does not belong to him. If he enjoys a right under the supposition that he is an owner of property he does not acquire an easement".
In a later decision, the Full Bench of the Bombay High Court in Raychand Vanmali-das v. Maneklal Mansukhbhai, AIR 1946 Bom 266, held (at page 269):
"To prove that a right was exercised by a person as an easement it is necessary to establish that the right was exercised by him on somebody else's property and not as an incident of his ownership of that property. For that purpose his consciousness during the statutory period that he was exercising that right on the property treating it as somebody else's property is a necessary ingredient in proof of the establishment of that right as easement."
In Sumanlal Bhagwandas v. Naginlal Bhagwandas, AIR 1967 Guj 87, it was observed while dealing with a claim of easementary right as below (at page 92):
"In order to claim any such right, it must be a right claimed and acquired against some other owner of a property, and there was none in the case, as both the properties belonged to the same person viz. the father of the parties."
The Andhra Pradesh High Court in Venkateswaraswamivari Devasthanam v. Velidandla Kanakalakshmi, (1975) 2 And W Reports 396 : (AIR 1976 AP 250) held (at page 252):
"The right of easement becomes extinguished the moment the ownership in the two tenements becomes vested in one and the same person. Co-existence of an easement along with the ownership of the land itself is not allowed under the law."
12. According to me, the law has been correctly stated in the above decision. The above rule can very well be extended to the properties held in co-ownership rights. That means the easementary right cannot be claimed by a co-owner in respect of the land held by him in co-ownership with others. In this connection the following observation in Marghabhai Vallavbhai's case, AIR 1932 Bom 513, is relevant:
"There can be no question of acquiring an easement of light and air over the properties jointly owned by him with others "
Therefore my conclusion is that the provisions contained in the Easement Act are not applicable to the facts of the present case inasmuch as the right claimed in respect of pathway will not come within the meaning of 'easement' as defined in the Act.
13. It was contended by the defendants that by virtue of Ext. B1 document the right in respect of pathway had been expressly released in favour of the father of defendants 1 and 2 and at any rate such right had been extinguished in view of the provisions contained in Section 38 of the Easements Act. Ext.B1 is a letter written by the first plaintiff on 10-4-1967 to Rama Prabhu. It is stated therein that he would be constructing a septic tank latrine within a year and that he had no objection in closing the pathway thereafter. The case of the first plaintiff is that the said letter was not acted upon and it was written under coercion and threat. Whatever that be, the said document came to the picture for the first time only when the first plaintiff was examined in Court as P.W. 1. He was confronted with the said letter while he was being cross-examined. The suit was preceded by Ext. A2 notice dated 12-12-1981. Ext. A5 dated 21-12-1981 was the reply sent by the first defendant. If the said document had been acted upon the contention on the basis of Ext.B1 would have been urged in Ext. A5 reply. No such contention was urged. Even in the written statement filed by the defendants no pleading was taken on the basis of Ext. B1 letter. In re-examination the first plaintiff explained the circumstances under which he was forced to write Ext.B1 letter. He explained that he was a salesman in the textile shop of the father of the defendants 1 and 2 and that he was threatened by Rama Prabhu that in case the dispute regarding the pathway was not settled he would be thrown out of employment and a complaint would be filed against him before the police alleging theft of the articles from the shop. Let these circumstances remain as they are as this Court is not called upon to decide the truth or otherwise thereof, in this appeal in view of the admission of first plaintiff that he had written Ext.B1 letter.
14. However, it is necessary to examine the legal effect of Ext. B1 even assuming it to be true for deciding the question whether by virtue of Ext.B1 the right in respect of pathway had been released in favour of the father of defendants 1 and 2. The first plaintiff wrote Ext.B1 letter as a person who had a right over the plaint B schedule property. It is seen to have been written in his individual capacity and not as an agent of the other co-owners. The plaintiffs 2 to 5 are the other co-owners and they have not authorised the first plaintiff to act on behalf of them in any manner. The decision in Abu Shahid v. Abdul Hoque Dobhash, AIR 1940 Cal 363, is an authority for the position that a co-owner merely as a co-owner is not an agent for the other co-owners. In Kanhaiya Lal v. Skinner, AIR 1932 All 98, Mukerji, J. observed thus (at pages 106 & 107):
"I have not been able to find any authority for the argument that a co-sharer, merely as a co-sharer, holds any fiduciary position as regards the other co-sharers of the village. As a co-sharer, a person is entitled to certain privileges, and is also subject to the liability to pay the land revenue, not only for his own share, but for the share of his co-sharers, where the liability exists in a co-sharer. He is not an agent for the other co-sharers, and there is nothing in the constitution of a village which makes a co-sharer an agent for other co-sharers. Nobody has appointed a co-sharer an agent for others, and the position in the village of a co-sharer does not make him an agent for other co-sharers. The only authority that has been found in this Court is a decision of a learned single Judge of this Court, and is reported in Lala Durga Prasad v. Ganga Saran. It was held there that a co-sharer was not an agent for other co-sharers and I entirely agree with this view."
In Mitra's Co-ownership and Partition, the law has been lucidly explained thus :
"It is well settled that a co-owner, merely as a co-owner, is not an agent for the other co-owners. Similarly as between the co-sharers in a village there is ordinarily no relationship of principal and agent. But a co-owner may be an agent for the others by any authority, express or implied, to act on behalf of the latter. When a co-owner has an authority to do an act on behalf of the others, he may do every lawful thing which is necessary in order to do such act."
Thus Ext. B1 letter by itself will not in any way release the rights over plaint B schedule property in favour of the father of defendants 1 and 2 inasmuch as the said letter is not binding on the plaintiffs 2 to 5, in the absence of any authority either expressed or implied.
15. Ext.B1 letter itself is incompetent and invalid in view of the recital contained in Ext. A1. Clauses (6) and (7) thereof prohibit the sharers from doing any acts causing any obstacles for common enjoyment of pathway by all. Such acts will be void and inoperative. Clause 5 indicates that the pathway is of permanent character and therefore sharers cannot cause any act which diminishes such nature. What is contained in Ext. B1 letter is an authority given to father of defendants 1 and 2 to close down the pathway. According to the said letter he is proposing to instal a septic tank latrine within one year and therefore scavenging service may not be necessary. These stipulations are contrary to the provisions in the Will relating to the reservation of pathway. The necessity of pathway will not disappear on abolition of bucket type of latrines. No such intention of testator is discernible from Ext. A1 Will.
16. In view of my conclusion in the paragraph supra that the right claimed in respect of pathway will not come within the definition of 'easement', the extinction, suspension, revival etc. under Chapter V of the Easements Act cannot be pleaded by the parties. The extinction under Section 38 of the Act takes place when the dominant owner releases it to the servient owner either expressly or impliedly. These requirements are obviously absent as there is no easement in this case.
17. On behalf of the defendants it is contended that no decree for mandatory injunction can be granted in view of the delay in moving the Court. According to them the gate on the compound wall had been closed about five to eight years back. The case of the plaintiffs is that in the first week of December, 1981 the defendants had removed two gales on the boundary wall and also closed the pathway. The notice was issued on 12-12-1981 and the suit was filed on 28-2-1982. In Ext. A2 notice it was pointed out that a masonry wall was constructed in the place wherefrom gates were removed. The obstruction was created on different dates according to the plaintiffs. As pointed out by the lower appellate Court Ext. C1 report did not give any assistance in this regard. Therefore there was no evidence for delay in moving the Court seeking mandatory, injunction. Apart from that, if any co-owner creates, any obstruction for the convenient enjoyment of the pathway by other sharers', such acts shall be invalid automatically as per Clause (7). That means the action of defendants by way of removing two gates on the compound wall and closing of the pathway had always been invalid. Therefore the date of obstruction will not assume much importance. A decree cannot therefore be denied to the plaintiffs on this ground.
18. In the result, the appeal is allowed. The judgment and decree of the lower appellate Court are set aside and the decree passed by the trial Court is restored. In the circumstances of the case, the parties are directed to suffer their respective costs.