Kerala High Court
Santha Bai vs Anusuya Bai, (Died) Legal ... on 10 October, 2024
RSA NO.1303 OF 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
RSA NO. 1303 OF 2014
AGAINST THE JUDGMENT AND DECREE DATED 24.09.2014 IN AS NO.5
OF 2014 OF SUB COURT,KOCHI ARISING OUT OF THE JUDGMENT AND DECREE
DATED 10.03.2014 IN OS NO.7 OF 2013 OF ADDITIONAL MUNSIFF
COURT,KOCHI
APPELLANTS/APPELLANTS IN A.S./PLAINTIFFS IN THE O.S:
1 SANTHA BAI
AGED 75 YEARS
W/O. KRISHNA PRABHU, RESIDING AT C.C.NO. 8/1825, TOWN
HALL ROAD, MATTANCHERRY P.O., MATTANCHERRY VILLAGE,
KOCHI TALUK, KOCHI-682002.
2 K.DINESH PRABHU
AGED 52 YEARS
S/O. KRISHNA PRABHU, RESIDING AT C.C.NO. 8/1825, TOWN
HALL ROAD, MATTANCHERRY P.O., MATTANCHERRY VILLAGE,
KOCHI TALUK, KOCHI-682002.
BY ADVS.
SRI.R.LAKSHMI NARAYAN
SMT.R.RANJANIE
RESPONDENTS/RESPONDENTS IN A.S/DEFENDANTS IN O.S:
1 ANUSUYA BAI,
AGED 71 YEARS
W/O. RANGANATHA KAMATH, C/O. R.JYOTHI SWETHADWEEP, 18/311,
AYYANKOIKKAL KAVU ROAD, ADINADU SOUTH, KATTILKADAVU,
KARUNAGAPPALLY, PIN-690542.(DIED) LEGAL REPRESENTATIVE
IMPLEADED
RSA NO.1303 OF 2014
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2 KAMALANATHA PAI
AGED 69 YEARS
S/O. NARAYANA PAI, & SARASWATHI BAI, RESIDING AT C.C.NO.
8/1825, TOWN HALL ROAD, KOOVAPADAM, MATTANCHERRY, KOCHI-
682002.
3 LALITHA BAI
AGED 67 YEARS
D/O. NARAYANA PAI & SARAWSATHI BAI, W/O. RAMANANDHA SHENOY,
RESIDING AT PUTHAN THIRUMALA THEKKENADA, ALAPPUZHA-688011.
4 RAGAVA PAI
AGED 64 YEARS
S/O. NARAYANA PAI, RESIDING AT KARAKA ROAD, NEAR GOVT.
U.P.SCHOOL, AZHEEKKAL, VYPEEN-682510.
5 JAYA BAI
AGED 59 YEARS
D/O. NARAYANA PAI & SARAWATHI BAI AND W/O. VITTALA NAIK,
RESIDING AT THIDUMAYIL MADOM, OLAVAIPU-688526.
6 GOPALAKRISHNA PAI
AGED 56 YEARS
S/O. NARAYANA PAI, SARASWATHI BAI, RESIDING AT C.C.NO.
8/1824, ALATHUKUTTY ROAD, KOOVAPADAM, MATTANCHERRY, KOCHI-
682002.(DIED)LRS IMPLEADED
7 SURESH KUMAR
AGED 53 YEARS
S/O. NARAYANA PAI & SARASWATHI BAI, RESIDING AT C.C.NO.
8/1825, TOWN HALL ROAD, KOOVAPADAM, MATTANCHERRY, KOCHI-
682002.
8 SATHEESH KUMAR
AGED 50 YEARS
S/O. NARAYANA PAI & SARASWATHI BAI, RESIDING AT MADEYIL
HOUSE, UDAYANAPURAM, VAIKOM-686143.
ADDL.R.9 JYOTHI,
D/O.LATE ANUSUYA BAI,SWETHADWEEP,18/311, AYYANKOIKKAL KAVU
ROAD,ADINADU SOUTH,KATTILKADAVU,KARUNAGAPPALLY, PIN-690542.
(LEGAL REPRESENTATIVE OF DECEASED 1ST RESPONDENT IS
IMPLEADED AS ADDITIONAL RESPONDENT NO.9 AS PER ORDER DATED
22.02.2024 IN IA.NO.2/2019 IN RSA.NO.1303/2014)
ADDL.R10 SOMALATHA PAI
W/O. LATE GOPALAKRISHNA PAI, S/O NARAYANA PAI, SARASWATHI
BAI, AGED ABOUT 56, RESIDING AT C.C. NO. 8/1824, ALATHUKUTTY
ROAD, KOOVAPADAM, MATTANCHERRY, KOCHI 682002
RSA NO.1303 OF 2014
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ADDL.R11 VEDAVYAS PAI,
S/O. LATE GOPALAKRISHNA PAI, S/O NARAYANA PAI, SARASWATHI
BAI, AGED ABOUT 36, RESIDING AT C.C. NO. 8/1824, ALATHUKUTTY
ROAD, KOOVAPADAM, MATTANCHERRY, KOCHI 682002
ADDL.R12 VISHNUVYAS PAI,
S/O. LATE GOPALAKRISHNA PAI, S/O NARAYANA PAI, SARASWATHI
BAI, AGED ABOUT 30, RESIDING AT C.C. NO. 8/1824, ALATHUKUTTY
ROAD, KOOVAPADAM, MATTANCHERRY, KOCHI 682002 (LEGAL
REPRESENTATIVES OF DECEASED 6TH RESPONDENT IS IMPLEADED AS
ADDITIONAL RESPONDENTS 10 TO 12 AS PER ORDER DATED
28.06.2024 IN IA.NO.1/2024 IN RSA.NO.1303/2014)
BY ADVS.
R1,R3, R7 &R8 BY G.KRISHNAKUMAR
A.G.ADITYA SHENOY
R4 BY BINOY DAVIS
R4 BY P.PARAMESWARAN MOOTHATH
R4, R10 & R11 BY REJI GEORGE
R4 BY UMESH.N.PAI
R10& R11 BY ANUPAMA JOHNY
R10& R11 BY SAISANKAR.S
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
08.10.2024, THE COURT ON 10.10.2024 DELIVERED THE FOLLOWING:
RSA NO.1303 OF 2014
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CR
JUDGMENT
1. Plaintiffs in a suit for mandatory injunction and damage are the appellants. Reliefs are sought with respect to plaint B schedule building. Plaint A Schedule property is 9 ½ cents of land in Sy No.1914/2 of Mattanchery village, together with a building bearing CC No. 8/1825 and Shop rooms bearing CC No. 8/1822 and 8/1823 situated therein. Plaint B Schedule property is the northern portion of the building bearing CC No. 8/1825, consisting of 10 rooms, including a kitchen.
2. The Plaintiffs are the wife and son of Krishna Prabhu, who derived the plaint schedule properties as per Ext.A1 Settlement deed of 1985 executed by his mother, Padmavathy. Padmavathy died, and Krishna Prabhu died on 23.12.2010.
3. The defendants are the children of Saraswathy Bhai, who is the sister of late Krishna Prabhu. Saraswathy Bhai died RSA NO.1303 OF 2014 5 2024:KER:74753 on 29.09.2012. Her husband, Narayana Pai, predeceased her in the year 1998.
4. Ext.A1 Settlement deed contained a clause that Saraswathy Bhai, her husband, and children who have been residing in the residential building in A schedule will have the right to live therein during the lifetime of the said persons.
5. As per the plaint allegations, the right of residence is available during the lifetime of Saraswathy Bhai and her husband only; they were occupying the plaint B schedule building consisting of 7 rooms during their lifetime in their status as licensees as per Ext.A1. Upon the death of Saraswathy Bhai and her husband, the said license became extinct, and the plaintiffs are entitled to obtain vacant possession of the plaint B schedule building. Though the defendants were demanded to vacate the premises as per Ext.A6 Lawyer Notice, they refused to comply with the demand, and hence, the plaintiffs filed the RSA NO.1303 OF 2014 6 2024:KER:74753 suit for mandatory injunction to order the defendants to surrender vacant possession of the plaint B schedule building to the plaintiffs and for damages @ Rs.5000/- per month for the illegal use and occupation of the same with interest @ 12% per annum.
6. The defendants 2 & 3 filed joint Written Statement.
Defendants 5 and 6 filed joint Written Statement. The 7th defendant filed a Written Statement. The defendants 1 and 8 filed joint Written Statement adopting the Written Statement filed by the 7th defendant. All of them opposed the suit prayers. In sum and substance, the contention of the defendants is that as per Ext.A1, the defendants have the right of residence in Plaint B scheduled building during their lifetime, and it would continue after the death of Saraswathy Bhai. They denied the existence of any license as per Ext.A1.
7. The Trial Court dismissed the suit as per judgment and Decree dated 10/03/2014 with costs, holding that the RSA NO.1303 OF 2014 7 2024:KER:74753 defendants have a life interest in the plaint B schedule building as per Ext.A1 as they are the children of Saraswathy Bhai and that the recitals in Ext.A1 will not amount to a license.
8. Though the plaintiffs filed an appeal before the First Appellate Court as AS No.5/2015, the same was dismissed by judgment and decree dt 24/09/2014.
9. The present appeal at the instance of the plaintiffs is admitted on four substantial questions of law as per Order dated 02.02.2015.
10. In short, the question of law No.1 is whether the interest created in Ext.A1 settlement deed in favour of Saraswathy Bhai husband and children is repugnant to the interest created in favour of Krishna Prabhu and thus whether it is hit by S.11 of Transfer of Property Act. The questions of Law No.2,3 and 4 are formulated with respect to the interpretation of the recital in Ext.A1 Settlement deed. To have clarity and brevity, I reframed the substantial RSA NO.1303 OF 2014 8 2024:KER:74753 questions of law involved in this Regular Second Appeal as per Order dated 04/10/2024 as follows:
1. Whether the benefit created in favour of Saraswathy Bhai, her husband and children in Ext.A1 settlement deed for the residence in A schedule property therein is repugnant to the interest created in favour of Krishna Prabhu and whether it is hit by S.11 of the Transfer of Property Act?
2. Whether the Trial Court and the First Appellate Court misconstrued or misunderstood the recitals in Ext.A1 settlement with respect to the life interest created therein?
11. I heard the learned Senior counsel for the appellants, Sri. R. Lakshminarayanan, instructed by Advocate Smt.R Ranjini, the learned counsel for respondents 1,3,7, and 8, RSA NO.1303 OF 2014 9 2024:KER:74753 Sri. G.Krishnakumar, the learned Counsel for respondents, 4,6,10 and 11 Sri Reji George and learned Counsel for the 5th respondent Sri Aditya Shenoy.
12. The learned Senior counsel for the appellants argued that Ext.A1 gives absolute interest over plaint A schedule property in favour of Krishna Prabhu. The recital in Ext.A1 is clear in this regard. In view of such a clear recital, the recital in the subsequent portion of Ext.A1 creating repugnant interest in favour of Saraswathy Bhai and her husband is violative of Section 11 of the Transfer of Property Act and is void. The learned Senior counsel contended that the provisions in Ext.A1 Settlement Deed have to be interpreted sitting in the armchair of the executant, who was an aged lady. She executed Ext.A1 with the sole intention of providing the plaint A scheduled property for the enjoyment of her son Krishna Prabhu during his lifetime. She never intended that the enjoyment of the property shall be deferred till the lifetime of the last RSA NO.1303 OF 2014 10 2024:KER:74753 surviving child of Saraswathy Bhai. If the said clause is given effect to, it would be destructive of the right granted in favour of Krishna Prabhu. Hence, on the basis of the relevant clause in Ext.A1, Saraswathy Bhai, her husband, and her children do not get any kind of right in A scheduled property therein. The learned Senior counsel also contended that the interpretation given by the Trial Court as well as the Appellate Court with respect to the relevant clause is not correct. At any rate, it could only be an interest created for the lifetime of Saraswathy Bhai and her husband, and since the husband of Saraswathy Bhai predeceased her, the alleged right created as per Ext.A1 was extinguished on the death of Saraswathy Bhai. The learned Senior counsel contended that since Saraswathy Bhai, her husband, and her children do not get any right as per Ext.A1, they have been residing in the plaint schedule property gratuitously. At the most, their status is that of a licensee, and hence, they are liable to be evicted RSA NO.1303 OF 2014 11 2024:KER:74753 by a mandatory injunction. The Trial Court, as well as the First Appellate Court, ought to have decreed the suit.
13. The learned Counsel for respondents 3, 7, and 8, Sri. G Krishnakumar contended that the suit as framed is not maintainable. The defendants, who are the children of Saraswathy Bhai, have been occupying plaint B schedule building on the strength of the life interest created in their favour as per Ext.A1. Since they are remaining in the possession of Plaint B schedule building, the suit ought to have been filed for recovery of possession. The status of the defendants is not that of the licensee, as alleged in the plaint. The plaintiff ought to have sought a declaration of title with respect to the plaint schedule property since there is a cloud on the title of the plaintiff. Learned Counsel contended that the plaintiff cannot maintain a challenge against Ext.A1 for want of material averments as mandated under Order VI Rule 8 CPC. The legality of Ext.A1 is not challenged in the suit. The plaintiffs have not RSA NO.1303 OF 2014 12 2024:KER:74753 raised any challenge against Ext.A1 with reference to S.11 of the Transfer of Property Act. The Counsel contended that since Krishan Prabhu did not opt to file a suit during his lifetime, the plaintiffs, being the legal representatives, do not have a right to maintain the present suit. The learned counsel contended that if the words in a written document are clear, there is very little the Court can do about it.
14. The learned Counsel for the respondents 4, 6, 10, and 11 argued that S.11 of the Transfer of Property Act is not applicable to the case on hand. Learned Counsel contended that S.11 is applicable only if absolute interest is created in favour of a person subject to the condition that such interest can be applied and enjoyed by him in a particular manner. In the case on hand, no absolute interest is created in favour of Krishna Prabhu, and there is no stipulation as to enjoyment in a particular manner. The creation of life interest is not a stipulation with respect RSA NO.1303 OF 2014 13 2024:KER:74753 to the enjoyment by the transferee in a particular manner. Learned Counsel contended that the provision applicable is Section 24 of the Transfer of Property Act. Learned Counsel contended that it is clear from the facts and circumstances of the case that no license, as defined under S.52 of the Transfer of Property Act, is created in favour of Saraswathy Bhai, her husband, and her children.
15. The Learned Counsel for the 5 th respondent supported the contentions of other contesting respondents and further contended that 5th respondent daughter is not residing in the plaint schedule building, and hence, no mandatory injunction against her was necessary if the life interest is limited to the parent alone. But she was impleaded in the suit, knowing fully well that life interest was also given to her. The impleadment of the 5th respondent as the defendant itself amounts to an admission that the life interest as per Ext.A1 is also available to the children of Saraswathy Bhai.
RSA NO.1303 OF 2014 14 2024:KER:74753 Question of Law No.1
16. The contention of the appellants is that clause giving beneficial interest of residence in favour of Saraswathy Bhai and her husband is violative of Section 11 of the Transfer of Property Act and the transferee Krishna Prabhu is entitled to deal with his interest ignoring such beneficial interest since Ext.A1 gives absolute interest over plaint A schedule property in favour of Krishna Prabhu.
17. The above contention is resisted by the learned Counsel for respondents 3,7 & 8 in view of the pleadings in the Plaint; the contention based on Section 11 of the Transfer of Property Act is not maintainable. My attention was invited to Order VI Rule 8 CPC. Learned Counsel cited the decisions of the Hon'ble Supreme Court in Kalyanpur Limeworks Ltd. V. State of Bihar and another. [AIR 1954 SC 165] and Union of India v. Surjit Singh Atwal [AIR 1979 SC 1701] in support of this contention. In RSA NO.1303 OF 2014 15 2024:KER:74753 Kalyanpur Limeworks Ltd.(Supra), the Hon'ble Supreme Court has held that in view of Order VI Rule 8 CPC, a party denying merely the factum of contract and not alleging its enforceability in law be held bound by the pleading and be precluded from raising the legality or validity of the contract. In Surjit Singh Atwal (Supra), the Hon'ble Supreme Court held that the illegality of a contract must be specifically pleaded as much as the denial of a contract in view of Order VI Rule 8 CPC. The learned Counsel cited the decision of this Court in Sukhalal and Others v. Jacob and Anr. 2020(1) KLT 398 and contended that legal representatives are not entitled to raise a plea that was not raised by his predecessor.
18. The learned Counsel for the respondents 4, 6, 10, and 11 resisted the above contention, arguing that S.11 of the Transfer of Property Act is not applicable to the case on hand. Learned Counsel contended that S.11 is applicable only if absolute interest is created in favour of a person RSA NO.1303 OF 2014 16 2024:KER:74753 subject to the condition that such interest can be applied and enjoyed by him in a particular manner. In the case on hand, no absolute interest is created in favour of Krishna Prabhu, and there is no stipulation as to enjoyment in a particular manner. The creation of life interest is not a stipulation with respect to the enjoyment by the transferee in a particular manner. The learned Counsel cited the decision of this Court in Joseph T.T. & Anr. v. Valsamma Varghese & Ors. [2022 (3) KHC 443] and contended that even recital in the Settlement Deed to the effect that the settlor had retained the right of alienation with respect to a part of the property would not create a restriction repugnant to the interest created in favour of the settlee as provided under Section 11 with respect to the larger extent of property covered by the Deed. The learned Counsel cited the decision of this Court in Kunhammad C.V. C.H.Ahamad Haji [AIR 2001 Ker. 101] and contended that the elements that are to be taken into RSA NO.1303 OF 2014 17 2024:KER:74753 consideration for seeking a mandatory injunction under Section 39 of the Specific Relief Act are absent in this case. The first element is that there should be a breach of obligation, and the second element is that it should be capable of enforcement by the court.
19. The learned Counsels for the respondents cited the decision in Anathula Sudhakar v. P.Buchi Reddy (dead) by LRs and others 2008(4) SCC 594 to substantiate the point that when the plaintiff's title is under doubt, and he does not have possession, his remedy is to file a suit for declaration and possession, with or without the consequential injunction.
20. In reply, the learned Senior Counsel for the appellant cited the decision of the Hon'ble Supreme Court in Sant Lal Jain v. Avtar Singh [AIR 1985 SC 857] to substantiate the point that relief can be granted in a suit for a mandatory injunction even if a suit for recovery of possession would have been more appropriate, taking into RSA NO.1303 OF 2014 18 2024:KER:74753 account of the fact that the suit is in effect one for possession. The learned Senior Counsel also cited the judgment of this Court dated 14.06.2022 in R.P.No.458 of 2022 arising from the said R.S.A. NO.644/2021 and pointed out that in similar circumstances, this Court found that suit for mandatory injunction is maintainable. The learned Senior Counsel cited the decision of the Hon'ble Supreme Court in Kedar Lal Seal and Anr. v. Hari Lal C [AIR 1952 SC 47] in which it is held that technicality shall not stand in the matter of pleading when substance of the thing is there and no prejudice is caused to the other side and that it is always open to a Court to give the plaintiff such general or other relief as it deems just to the same extent as it had been asked for provided that occasions no prejudice to the other side beyond what can be compensated for in costs.
21. On going through the Plaint, it is seen that the plaintiffs do not have a plea that any of the clauses in Ext.A1 is invalid RSA NO.1303 OF 2014 19 2024:KER:74753 or illegal. No prayer is made challenging any of the clauses in Ext.A1. The specific case of the plaintiffs is that the status of Sarawathy Bhai and her husband is that of a licensee, and the same became extinct on their death. In other words, whatever benefits are available to them as per Ext.A1 are not available to the children of Sarawathy Bhai, who are the defendants. Going by the pleadings in the plaint, the plaintiffs acknowledge and accept that the right is available to Sarawathy Bhai and her husband as per Ext.A1, though the nature of the right is stated as a license. The plaintiffs did not raise any contention based on Section 11 of the Transfer of Property Act, either before the Trail Court or before the First Appellate Court. The contention raised by the plaintiffs in this Second appeal with reference to Section 11 of the Transfer of Property Act is beyond pleadings and is clearly impermissible. The suit, as framed, does not take in any contention as to the illegality of any of the Clauses of RSA NO.1303 OF 2014 20 2024:KER:74753 Ext.A1. Even a mere plea of illegality is not sufficient. In view of Order 6 Rule 8 CPC, if the plaintiffs intend to charge illegality on the relevant clause of Ext.A1, they must have stated the material facts for the purpose of showing how it is illegal. The decisions cited by the learned Senior Counsel are clearly distinguishable on facts, as even the substance of the plea of illegality is not pleaded.
22. The pleading of the plaintiffs is that the right given to Sarawathy Bhai and her husband, as per Ext.A1 Settlement Deed, is only a license. On a bare reading of the relevant clause in Ext.A1, it is clear that the right given is a life interest, not a license. The Trial Court, as well as the First Appellate Court, rightly found that the nature of the right is life interest and not license. Life interest created in favour of a person is having an interest during his lifetime. I place reliance on the decision of the Hon'ble Supreme Court in Smt. Rukhamanibai v. Shivaram and RSA NO.1303 OF 2014 21 2024:KER:74753 others AIR 1981 SC 1881 cited by the learned Counsel for the respondents 4,6,10 & 11 in which it is held that life interest is a vested interest, and the interest created in favour of the transferee is only a contingent interest. As rightly contended by the learned Counsel for respondents 4,6,10 & 11, the ownership over immovable property carries a bundle of rights, and in order to attract Section 19 of the Transfer of Property Act, only a creation of an interest in the immovable property alone is sufficient, then it would amount to a vested interest as defined under Section 19. It is not necessary that the entire bundle of rights should be transferred to make it a vested interest. Life interest could not be termed as a license since the latter does not create any interest in the land, as revealed by Section 52 of the Easement Act. The learned Counsel for respondents 4,6,10 & 11 cited the decision in Associated Hotels of India Ltd. v. R.N. Kapoor [AIR 1959 SC 1262] and ICICI v. State of Maharashtra & Ors. RSA NO.1303 OF 2014 22 2024:KER:74753 [(1999) 5 SCC 708], which affirms the point that in the case of a license, no interest is created, and only in the case of a lease is interest created.
23. In order to attract Section 11 of the Transfer of Property Act, restriction repugnant to the absolute interest should be in the matter of enjoyment of the property. If there is a specification with respect to the manner of enjoyment of the interest, the transferee is entitled to absolutely enjoy the property as if there is no such direction. In the case on hand, there is no direction with respect to the manner of enjoyment of the property by Krishna Prabhu. The life interest created in favour of another person does not in any way affect the right of the transferee to enjoy the property on the extinction of the life interest. Section 11 of the Transfer of Property Act is not applicable when life interest is created on a transfer of property. So even if it is assumed that the plea-based Section 11 of the Transfer of Property Act is available to the plaintiffs, such a plea RSA NO.1303 OF 2014 23 2024:KER:74753 would not succeed. The question of Law No.1 is answered in the negative and against the appellants. Question of Law No.2
24. The contention of the learned Senior counsel for the appellant is that the interpretation given by the Trial Court as well as the Appellate Court with respect to the relevant clause is not correct. The interest is created only for the lifetime of Saraswathy Bhai and her husband, and the same is not available to the children. Learned Senior Counsel relied on the decision of the Hon'ble Supreme Court in Sahebzada Mohammad Kamgarh Shah v. Jagdish Chandra Deo Dhabal Deb and others AIR 1960 SC 953 and Ramkishorelal and another v. Kamalnarayan AIR 1963 SC 890 with respect to the interpretation of documents.
25. In Sahebzada Mohammad (Supra), the Hon'ble Supreme Court held that the intention of the parties has to be gathered by the words used by the parties themselves RSA NO.1303 OF 2014 24 2024:KER:74753 that in doing so, the parties must be presumed to have used the words in their strict grammatical sense; that if and when the parties have first expressed themselves in one way and then they go on saying something which is irreconcilable with what has gone before, the courts have evolved the principle on the theory that what once had been granted cannot next be taken away; that the clear disposition by an earlier clause will not be allowed to be cut down by a later clause; that where there is ambiguity, it is the duty of the court to look at all the parts of the document to ascertain what was really intended by the parties; and that even here the rule has to be borne in mind that the document being the grantor's document it has to be interpreted strictly against him and in favour of the grantee.
26. In Ramkishorelal (supra), the Hon'ble Supreme Court followed Sahebzada Mohammad (Supra) and held that the golden rule of construction is to ascertain the intention RSA NO.1303 OF 2014 25 2024:KER:74753 of the parties to the instrument after considering all the words in their ordinary and natural sense. It is held that to ascertain this intention, the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used; that sometimes it happens in the case of documents as regards disposition of properties, when there is a clear conflict between what is said in one part of the document and in another, where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion, 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; that an attempt should always be made to read the two parts of the RSA NO.1303 OF 2014 26 2024:KER:74753 document harmoniously, if possible; it is only when this is not possible, for example where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.
27. The aforesaid two decisions are not applicable to the facts and circumstances of the present case. There is no conflict between different clauses in Ext.A1. The creation of life interest provided in the latter clause does not in any way take away the absolute interest created in favour of Krishna Prabhu in the former clause. Both clauses can easily be construed harmoniously, without one clause defeating or destroying the other one. I place reliance on the decision of the Hon'ble Supreme Court in Provash Chandra Dalui and another v. Viswanath Banerjee and another 1989 Suppl. 1 SCC 487 cited by the Counsel for the respondents 3, 7 & 8 in which it is held that if the words in a written document are clear, there is very little RSA NO.1303 OF 2014 27 2024:KER:74753 the court can do about it; that in the construction of a written instrument, it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter to which it was designed and intended they should apply.
28. The learned counsel for respondents 1, 3, 7 & 8 cited the decision of the Hon'ble Supreme Court in Kale & Others v. Deputy Director of Consolidation [AIR 1976 SC 807] to convince this Court with respect to the importance of family arrangement. Learned Counsel contended that mother Padmavathi wanted to protect the interest of all the family members while executing Ext.A1 Settlement Deed and that Ext.A1 reveals a family arrangement. It is held in the said decision that family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. Even if family arrangements suffer from a legal lacuna or a formal RSA NO.1303 OF 2014 28 2024:KER:74753 defect, the rule of estoppel is pressed into service by the Courts when a party to the family arrangement seeks to unsettle a settled dispute under the family arrangement. The learned Counsel cited the decision of this Court in Sandhyavu v. Peter [2024 KLT OnLine 1540], in which the said decision was followed. I am unable to accept the contention of learned Counsel. Ext.A1 Settlement could not be termed as a family arrangement. Ext.A1 is executed by mother Padmavathi to settle her properties to her children and grandchildren during her lifetime. Of course, it is revealed from the recitals in Ext.A1 that she made adequate provisions for protecting the survival of all the family members. The intention of the Settler is of paramount consideration while interpreting Ext.A1.
29. The learned counsel for the respondents 4,6,10&11 cited the decision of this Court in Nikhil @ Kannan v. Sarojini [2014 KHC 3670] and contended that a document has to be read as a whole to gather the intention of the parties, RSA NO.1303 OF 2014 29 2024:KER:74753 the exercise should not be to probe into the intention of the writer or author as to what he had in his mind but to ascertain what a reasonable mind would conclude by reading the document.
30. In the case on hand, there could not be any doubt with respect to the life interest created as per the recitals of Ext.A1 document. On a plain reading of the relevant clause, the life interest is also available to Saraswathy Bhai's children. It does not admit two kinds of interpretations. It is specifically stated that the dispositions of the properties therein are subject to the conditions therein. The intention of Mother Padmavathy was to ensure the continuance of residence for the existing family members. As per Ext.A1, the right of residence is given to the female children of another daughter, Sulochana Bhai, only till their marriage. The right of residence is given to the children of Saraswathy Bhai for their lifetime. If mother Padmavathi had the intention to limit the right of residence RSA NO.1303 OF 2014 30 2024:KER:74753 given to the children of Saraswathy Bhai till the death of Saraswathy Bhai and her husband, it would have been clearly stated in Ext.A1. The Trial Court and the First Appellate Court correctly construed and understood Ext.A1. The findings do not require any interference. The question of Law No.2 is answered in the negative and against the appellants.
31. The Regular Second Appeal is dismissed with costs.
Sd/ M.A.ABDUL HAKHIM JUDGE jma