Kerala High Court
Ittiyachan vs Tomy on 9 August, 2001
Equivalent citations: AIR 2002 (NOC) 5 (KER), (2001) 2 KER LT 679, ILR(KER) 2001 (3) KER 328, (2001) 3 CIVILCOURTC 432, (2001) 2 KER LJ 587, (2001) 3 KER LT 117, (2001) 4 CURCC 268, (2001) ILR 3 KER 328
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan
JUDGMENT
P.K. Balasubramanyan, A.C.J.
1. The appellant is the petitioner in E.A. 455 of 1999 in E.P. 319 of 1996 in O.S. 385 of 1992 on the file of the Subordinate Judge's Court of North Paravur. That application was filed by him invoking O.XXXI R. 97, O. XLVII R. 1 and S. 151 of the Code of Civil Procedure. The appellant, the petitioner in E.A. 455 of 1999, is the father of the judgments debtor in O.S 385 of 1992. The decree holder in that suit was impleaded as respondent No.1 and the judgment debtor was impleaded as respondent No.2 in E.A. 455 of 1999. That application was opposed by the decree holder. The Court below, after an enquiry, dismissed that application. Hence, this appeal is filed by the appellant invoking O. XXI R. 103 of the Code of Civil Procedure read with O. XLI R. 1 thereof.
2. The appellant, hereinafter referred to as "the claimant", along with his four sons and three daughters are the heirs of his wife Mariya. Mariya died. The properties inherited from Mariya and an item of property purchased jointly by mariya and the claimant, were the subject matter of a settlement or partition, marked Ext. A4 in the proceeding. Under that settlement or partition dated 15.10.1988, the daughters of Mariya took their shares in terms of money. Item No.1 therein (we are concerned with that item here) was divided into four and each of the sons took a portion extending from east to west and one to the sought of the other. It was provided in that partition or settlement deed that the claimant would have a life interest over item No.2 to that deed. On the terms of Ext. A4, the division of item No.1 was outright division. But, it was provided therein that if during the lifetime of the father, the claimant, the allottees sons, wanted to dispose of their shares, they must do so with the consent of the father and with the junction of the father in the deed of sale. Acting against this particular terms int he settlement deed, the judgment debtor entered into an agreement for sale with the decree holder to sell the 21 cents obtained by him under Ext. A4. He did not perform his part of the contract and this led to the decree filing the suit O.S. 385 of 1992 for specific performance of the agreement for sale. The suite was filed on 15.7.1992. The judgment debtor appeared on 17.10.1992. He was thereafter set ex parte and the suit was decreed. The ex parte decree against him was set aside on his application. Thereafter he filed a written statement. Issues wee struck. The suit was included in the list for trial to 11.8.1994. The defendant did not appear. he was again set ex parte and the suit was decreed. The judgment debtor filed I.A. 4620 of 1994 to set aside the ex parte decree. After taking evidence, that application was ultimately dismissed on 28.8.1995. On 13.6.1996, the Execution Petition was filed by the decree holder. The judgment debtor appeared on 10.3.1997. Ultimately on 9.6.1998, the balance purchase price was deposited. A draft sale deed was produced thereafter. On 1.9.1998 he Court approved the draft sale deed. On 21.5.1999, the Court directed that the property be identified. The brothers of the judgment debtor obstructed. The Surveyor, who had been directed to identify the property, sought police help from Court. That was granted. On 28.5.1999, the Surveyor completed his work and on 15.6.1999 he filed a report and plan. Thereafter the Court executed the sale deed on 13.8.1999. The Court ordered delivery and the property was delivered over on 30.8.1999.
3. In view of the fact that delivery had been effected by the Court as evidenced by the report of the Amin, the claimant ought to have filed an application for re-delivery under O. XXI R. 99 of the Code of Civil Procedure. But, what he did was to make an application under O. XXI R. 97 of the Code of Civil Procedure as if he were offering obstruction to the delivery. He also invoked O. XLVII R.1 of the Code of Civil Procedure seeking a review of the order, directing delivery. Whatever it be, in the circumstances of the case, it doe snot appear to be necessary to dispose of the claim of the claimant on the ground that he has to invoked the proper provision or that he has not sought the proper remedy. learned counsel for the claimant submitted that in the light of the evidence of the Amin, examined as PW.2, it could be held that the property was not actually delivered over. But, on going through the evidence of PW.2, the Amin, we are satisfied that the presumption, arising out of the record of delivery, is not in any manner rebutted. But, on the other hand, the factum of delivery is strengthened by the evidence of PW.2. We may notice here that the Court, which executed the decree for specific performance, had taken care to identify the various portions taken by the sons from out of item No.1 of that document and it was only thereafter that the sale deed itself was executed and the delivery effected. Therefore, the challenge to the delivery cannot be upheld.
4. We may at this notice that the claimant has filed a suit. O.S. 561 of 1999 on the file of the Munsiff's Court of Aluva, for a perpetual injunction and other reliefs. It is not necessary for us to consider the maintainability or the sustainability of that suit at this stage.
5. An obstruction under O. XXI R. 97 of the Code of Civil Procedure or for re-delivery under R. 99 of O. XXI of the Code of Civil Procedure, can be maintained by a person who is not bound by the decree or who claims an independent right over the property. After the amendment of the Code in the year 1976, mere possession by the claimant would not be sufficient. The claimant has also to show right to possession independent of the judgment debtor. In that situation, it is necessary for the claimant in the present case, to show that he has got a right in the property which is not affected or which cannot be affected by the decree, in execution of which it was delivered. The claimant makes the claim based only on the recital in the settlement or partition deed under which portions of item No.1 therein were allotted to the sons of Mariya, including the judgment debtor. Party No.1 to that document is the claimant-father. Four items were involved in that document. We are concerned with item No.1 therein. Item No.1 was divided into four plots. The northern mosts 21 cents was allotted to a son, Joy. The portion immediately theraafter and to its south was allotted to another son, Babu. 21 cents to the south of that plot was allotted to the judgment debtor, son. 21 cents to the south of that plot was allotted to another son Johny. Regarding item No.2 included in that document, there was a stipulation that the father had the right to take income from that property during his life item. Regarding item No.1, the provision was that the sons, to whom portions of the same had been allotted, would have right to sell the property only after the death of the father and if the property was to be sold during the life time of the father, the junction of the father in the sale deed was also necessary. We may notice here that the father, the claimant, was not given any right over the property, even to take the income therefrom during his life time. The only stipulation was that the property could not be sold during his life time without his consent and without his joining the sale deed. But, by the prior clause in the deed, there was an absolute allotment of portions of item No.1 in favour of the sons, including the judgment debtor. The clause that the property could not be sold till the life time of the father or that the father should join the deed if a sale deed is to be executed during his life time could be said to be repugnant to the grant already made. We may notice here that the property that was the subject matter of the settlement or partition was the property left by Mariya, the wife of the claimant and the mother of the judgment debtor. It apparently also included an item of property acquired by Mariya along with her husband, the claimant. In the properties thus set apart to the sons, the claimant had not subsisting right or outstanding claim of right, on the terms of the settlement deed.
6. This is, therefore, really a case where the claimant has no title over the property that was conveyed by the decree for specific performance. He had only a right to join any voluntary alienation by his son without having any right in or over the property. Of course, the argument that the sons could have entered into an agreement for sale only with the junction of the father in terms of Ext. A1 may be correct going strictly by the terms of the said settlement deed. But, since on the scheme of O. XXI Rr. 97 and 99 of the Code of Civil Procedure the claimant could get relief only on establishing a right to possession over the property, it has to be held on a true interpretation of the settlement deed that the claimant is not entitled to maintain his claim or obstruction.
7. It was argued that the restriction imposed by the Settlement Deed was not invalid as restraint on alienation and it was valid since it was only a partial restraint permissible in law. It was also contended that the transaction was only a partition and validity of a provision like the present one in the context of S. 10 of the Transfer of Property Act came up for consideration before the Allahabad High Court in Gomti Singh v. Anari Kuar (AIR 1929 Allahabad 492). Their Lordship held:-
"But in order to determine whether the restraint was absolute or partial one must gather the intention of the transfer from the contents of the document. It seems to us that the idea underlying the execution of the tamliknama was to protect the property and retain it in the family and prevent it from passing out of the family. Although on the one had the donor transferred 2/3rds share to his wives he reserved to himself the power to refuse consent for alienation. It seems to us that for all practical purposes Basdeo Singh reserved to himself the absolute power of preventing alienation of any kind. Unless he himself was prepared to waive this condition, he gave no power to his wives to transfer the property gifted to them under any circumstances. We therefore, think that this amounted to an absolute restraint on alienation within the meaning of S. 10."
In Mohammed Raza v. Mt. Abbas Bandi Bibi (AIR 1932 Privy Council 158), the Privy Council held that where a person has been allowed to take property upon the express agreement that it shall not be alienated outside the family, those who seek to make title through a direct breach of this agreement can hardly support their claim by an appeal to the high sounding principles, such as justice, equity and good conscience. It further held that the terms of the compromise involved in that case were binding, that the restriction as to alienation was only partial and that such a partial restriction was neither repugnant to law nor to justice, equity and good conscience. The distinction no between the above two authorities can straight away be noted. Whereas in the former no alienation could be effected without the junction of the settlor, in the latter, an alienation could be effected by the allottee without reference to the transferor or the settlor and the restriction was only against alienating the property to a person who was a stranger to the family. The former was held to be an absolute restriction and hence invalid and the alter, a partial restraint and hence valid. In the case on hand, the restriction is not one restraining the allottee from selling to anyone other than his brothers or sisters, but is one by which he is precluded from selling the property at all to anyone, without the junction of the father, who himself retained or acquired not right over the allottee property. Though limited to the life time of the father, the said restraint operates as an absolute restraint in its duration.
8. We do to think that it is necessary to multiply authorities on the above question. As we have noticed, though limited in nature, the restraint operates in such a way that the allottee could not deal with the property at all unless the father chose to agree to joint him in the deed. This, in our view, operates as a restraint on alienation especially in the contest of the fact that the father has not taken any right or interest over eh property in question. The position could be different in a case where he had retained unto himself a right to take income from the property during his lifetime or had taken a life estate therein. We are, therefore, inclined to think that the restriction imposed in Ext. A1 cannot be deemed to be valid. Thus, both on the ground that the claimant has no title over the property or subsisting right therein and on the ground that the clause relied on cannot be treated as valid. We have to hold that the claim made by the appellant or the obstruction offered by the appellant is unsustainable. In that situation, we find no reason to interfere with the rejection of the claim of the appellant by the executing Court. We, therefore, confirm the decision of the executing Court and dismiss this appeal.