Madras High Court
N. Rangarajan vs Lakshmi Krishnan And Ors. on 5 October, 1990
Equivalent citations: (1991)396MLJ1
JUDGMENT Somasundaram, J.
1. The plaintiff in O.S. No. 2374 of 1979 on the file of the 17th Assistant Judge, City Civil Court, Madras, is the appellant in the Second Appeal. The defendants 1 to 5 in the said suit are the respondents 1 to 5 in this Second Appeal. For the sake of convenience the parties are referred to by the nomenclature given to them in the suit.
2. The plaintiffs suit is for declaration that the garage in A Schedule property is the common property of the plaintiff and his co-owners of other flats and for directing the second defendant to deliver possession of the garage to the plaintiff arid other co-owners and for grant of permanent injunction restraining the first defendant from in any way dealing with the garage contrary to the covenants in the sale deeds and against the second defendant from in anyway obstructing the plaintiff from using the garage with his undivided 1/4th share in the land out of 2 grounds and 1,650 sq.ft. The case of the plaintiff is as follows:
The house and ground bearing door Number 12 (old Door No. 26), Thiruvengadam Street, described in A schedule, originally belonged to the father of the first defendant. He had transferred the same by a deed of gift dated 21.3.1972 to the first defendant under a registered document in the year 1972. The first defendant sold to the plaintiff and four others the land and flats marked A to E by separate sale deeds for the consideration recited therein and put them in possession. The plaintiff has purchased an undivided 1/4th share in the land out of 2 grounds and 1,650 sq.ft. and one self-contained flat A in the first floor described in B schedule under a registered sale deed dated 21.8.1978 for a total consideration of Rs. 60,000. Four others also purchased the other flats along with their 1/4th, 1/4th, 1/8th and 1/8th share in the land out of 2 grounds and 1,650 sq.ft. Ever since the date of purchase, the plaintiff has been in possession and enjoyment of flat 'A' along with the undivided 1/4th share in the said land out of 2 grounds and 1,650 sq.ft. with all amenities, easements, rights of way etc. in common with the other co-owners. The plaintiff and his co-owners, the purchasers of the other flats are jointly enjoying the common amenities including the garage according to their respective sale deeds. The second defendant, with the connivance of the first defendant, clandestinely and without the consent of the plaintiff, trespassed into the property and occupied the garage claiming to be the tenant in the garage under the first defendant. The first defendant has no right over the garage and therefore, the second defendant, who wrongfully, trespassed and occupied the garage on 9.2.1979, without the consent of the plaintiff is in wrongful possession of the property.
3. The defendants 4 and 2 resisted the suit contending as follows: The garage was never included in the sale deeds of the plaintiff or other vendees* of the flats B to E. The garage was never intended to be a common one and it was never in enjoyment of the plaintiff and purchasers of the other flats. It was not a common amenity. The garage was never included in any of the sale deeds and it cannot form part of the land alleged to have been sold to the plaintiff and other purchasers. The garage and other portion adjacent to it was sold to the second defendant in pursuance of an agreement and the sale deed was registered on 2.4.1979. The garage and other adjacent portion sold to the second defendant was always in the exclusive possession of the first defendant till July, 1978 when advance was taken from the second defendant and possession was handed over in pursuance of an agreement and as part-performance of the sale. The plaintiff has not impleaded the purchasers of other flats viz., B to E and such non-joinder of other four purchasers is fatal to the maintainability of the suit. The plaintiff is not entitled to the declaration and also not entitled to recover possession of the garage as well as the injunction prayed for by him.
4. During the pendency of the suit the defendants 3 to 5, who are the co-owners of the Plaint A Schedule property and owners of the other flats viz., B, D and E have been impleaded as parties to the suit. Defendants 3 to 5 filed a memo stating that they are sailing with the plaintiff.
5. The trial court, on a consideration of the entire evidence on record-both oral and documentary, held that the suit garage belongs in common to the plaintiff, defendants 3 to 5 and one K.R. Shantha, who are the co-owners of the Plaint A Schedule property and decreed the suit as prayed for. As against the judgment of the trial court the defendants 1 and 2 filed an appeal, A.S. No. 478 of 1984 on the file of the I Additional Judge, City Civil Court, Madras. The appellate court held that inasmuch as in the sale deeds Exs. A-1 to A-5 in favour of the plaintiff, the defendants 3 to 5 and other co-owner K.R. Shantha, the garage has not been specifically mentioned, the plaintiff and the other co-owners of the A Schedule property are not entitled to the suit garage. The appellate court further held that the suit as framed is not maintainable because all the co-owners of the Plaint A Schedule property are not impleaded as parties in "the suit. Consequently the appellate court allowed the appeal and dismissed the suit. Aggrieved by the judgment of the appellate court the plaintiff has filed this present second appeal.
6. Mr. N. Varadarajan, learned Counsel for the plaintiff would contend that by virtue of the gift deed dated 21.3.1972 the first defendant is entitled to the entire A Schedule property viz., the land measuring 2 grounds and 1,650 sq.ft. along with a building consisting of five flats; that under Exs. A-1 to A-5 the entire A Schedule property viz., the entire land with the building owned by the first defendant has been sold to the five purchasers viz., the plaintiff, defendants 3 to 5, and Mrs. K.R. Shantha by the first defendant and that she has not retained any portion of the A Schedule property with her, that in law all the interests which the first defendant had in the A Schedule property including the superstructure of the garage must be deemed to have passed to the five purchasers; that by virtue of Exs. A-1 to A-5 the plaintiff, defendants 3 to 5 and the other co-owner K.R. Shantha, became entitled to the entire A Schedule property consisting of two grounds and 1,650 sq.ft. of land along with five flats; The extent of 2 grounds and 1,650 sq.ft. of land mentioned in A Schedule includes 210 sq.ft. of land over which the suit garage is put up, after selling the entire 2 grounds and 1,650 sq.ft. of land under Exs. A-1 to A-5 to the plaintiff and the other co-sharers of the A Schedule property, the first defendant has no manner of right, title or interest in any portion of the A Schedule property and that long after Exs. A-1 to A-5 and during the pendency of the suit, the first defendant by executing Ex. A-6 in favour of the second defendant cannot convey any title over any portion of the A Schedule property in favour of the second defendant. There is force in the contention of the learned Counsel for the plaintiff. Under Ex. A-1 what was conveyed to the plaintiff has been shown in B Schedule which was comprised in A Schedule. The A Schedule in Ex. A-1 is given as follows:
All the piece and parcel of land together with building thereon situate in Door No. 12 (Old No. 26) Thiruvengadam Street, Raja Annamalaipuram, Madras 28 Corporation Division No. 98, R.S. No. 4119/4 bounded on the North by house belonging to Meenakshisundaram, South by Thiruvengadarh Street, east by C.I.D. Police Quarters and west by house belonging to Sri Ramasubban containing admeasurement 2 ground and 1,650 sq.ft.
The B Schedule in Ex. A-1 is given as follows:
All the piece and parcel of land being the undivided 1/4th share in Door No. 12, (Old No. 26), Thiruvengadam Street, Madras-28, Corporation Division No. 98 together with the superstructure marked as Flat A bounded on the north and south by open space, west by Flat B and east by open space containing by admeasurement 1140 sq.ft. of constructed portion with 1/4th share of land out of 2 grounds and 1,650 sq.ft.
Exs. A-2 to A-5 are the registration copies of the sale deeds executed by the first defendant in favour of the purchasers of the other flats. Ex. A-2 is the Xerox copy of the sale deed dated 7.11.1977 executed by the first defendant in favour of the fourth defendant. The A Schedule in Ex. A-2 is the same as in Ex. A-1 and under B Schedule flat B was conveyed to the fourth defendant with 1/4th share in the undivided land. Ex. A-3 is the registration copy of the sale deed dated 8.1.1978 executed by the first defendant in favour of the third defendant. In the said sale deed also the A Schedule is shown to be the same as in Ex. A-1. The B Schedule is the property conveyed to the third defendant and it is flat D with 1/8th share in the undivided land. Ex. A-4 is the registration copy of the sale deed dated 22.6.1978 executed by the first defendant in favour of K.R. Shantha and in the B Schedule of the said document the 1/8th share in the land and flat C had been conveyed to her. Similarly Ex. A-5 is the registration copy of the sale deed dated 4.1.1979 executed by the first defendant in favour of the fifth defendant. Under the B Schedule in Ex. A-5 flat E and 1/4th undivided share in the land had been conveyed to him. Thus, under Exs. A-1 to A-5 the first defendant has conveyed her entire interests in the entire 2 grounds and 1,650 sq.ft. described in the A Schedule to the plaintiff, defendants 3 to 5 and the other co-owner K.R. Shantha. Under Exs. A-1 to A-5 the first defendant has not retained any interest for herself in the A Schedule property. When the first defendant has not retained for herself any right or-interest in the entire A Schedule property measuring 2 grounds and 1,650 sq.ft. in Exs. A-1 to A-5, she cannot convey valid title to any extent of land described in the A Schedule measuring 2 grounds and 1,650 sq.ft. under Ex. A-6 in favour of the second defendant. Ex. A-6 is the registration copy of the sale deed executed by the first defendant in favour of the second defendant. In Ex. A-6 also the A Schedule has been shown to be same as in Exs. A-1 to A-5. The B Schedule in Ex. A-6 is given as follows:
All the piece and parcel of land being the garage and varandah with separate bath and latrine in Door No. 12, Thiruvengadam Street, Raja Annamalaipuram, Madras-28, Corporation Division No. 98, together with the superstructure thereon known as garage with verandah 16 x 9' separate both and latrine on ground floor on the north-western side of plot No. 4, bounded on the east by open space, south by open space facing Thiruvengadam Street, adjoining Flat C belonging to Shantha Balasubramaniam known as C. Ramasubban and north by house belonging to Meenakshisundaram containing admeasurement about 210 sq.ft. situate in the Sub-Registration District of Mylapore and Registration District of Madras.
The father of the first defendant, who was examined as D.W. 1, has admitted in his evidence that the land measuring 210 sq.ft. over which the superstructure of the suit garage is put up and sold under Ex. A-6 forms part of the A Schedule. The total extent of the land described in the A Schedule in all the documents Exs. A-1 to A-6 as well as in the plaint is given as 2 grounds and 1,650 sq.ft. When the first defendant long prior to Ex. A-6 had parted with all her interest in the entire extent of 2 grounds and 1,650 sq.ft. in favour of the plaintiff and the other co-owners of A Schedule under Exs. A-1 to A-5, she cannot convey any title to the land measuring 210 sq.ft. in the A Schedule in favour of the second defendant under Ex. A-6. Hence it has to be concluded that the second defendant has no title to the land measuring 210 sq.ft. in the A Schedule over which the suit garage is put up and that so far as the said 210 sq.ft. concerned, her possession is only that of a trespasser.
6. The learned Counsel for the plaintiff would further contend that when the extent of 210 sq.ft. of land over which the superstructure of the garage is put up, forms part of the A Schedule property conveyed under Ex. A-1 to A-5 to the plaintiff, defendants 3 to 5 and the other co-owner K.R. Shantha, the garage, as a thing attached to earth, will also pass to the vendees under Exs. A-1 to A-5 in view of Section 8 of the Transfer of Property Act. The learned Counsel for the plaintiff also relied on the decisions reported in N.C. Macleod and another v. Kissan Vithal Singh and Anr. I.L.R. 30 Bom. 250, George v. South Indian Bank Ltd. 1950 K.L.T. 120 and Boda Narayana Murthy and Sons v. Venkata Siguna (1977) 2 An.W.R. 480 in support of his contention. In N.C. Macleod and Anr. v. Kissan Vithal Singh and Anr. I.L.R. 30 Bom. 250, after referring to Section 8 of the Transfer of Property Act it has been held as follows:
According to the second clause of the section, the Theatre which stood on the land in dispute at the date of the mortgage and was known as the "New Victoria Theatre" must as a thing attached to the earth be treated as having passed to the mortgagee "unless a different intention is expressed or necessarily implied.
In George v. South Indian Bank Ltd. 1950 K.L.T. 120, a Division Bench of the Kerala High Court has held as follows:
Under Section 8 of the Transfer of Property Act, unless a different intention is expressed or necessarily implied, a transfer of land passed to the transferee all the interest the transferor is capable of passing in the land, as well as things attached to the earth. A house being imbedded in the earth, is immovable property and when land is transferred, buildings erected upon it pass by necessary implication to the transferee.
In Boda Narayana Murthy and Sons v. Venkata Siguna (1977) 2 An.W.R. 480, a Division Bench of the Andhra Pradesh High Court has held as follows:
It is provided under Section 8 of the Transfer of Property Act that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof and such incidents include where the property is land, the easement annexed thereto, the rents and profits, thereof accruing after the transfer and all things attached to the earth etc. Sri Bapiraju, the learned Counsel for the plaintiff appellant has submitted that when the mortgage is created by deposit of Ex. A-9 title deed the Minerva Talkies was there. The mortgagor was then capable of mortgaging his share in the Minerva Talkies also. Though the Minerva Talkies was not in existence at the time the title deed, which was deposited, came into existence, still the mortgagor was capable of creating the mortgage over the Minerva Talkies also as a legal incident. In this connection some decisions were cited. A Bench of the Kerala High Court in George v. South Indian Bank Ltd. , has said a building is a thing attached to the earth. A house being imbedded in the earth is immovable property and when land is transferred by way of mortgage, buildings erected upon it pass by necessary implication to the transferee. Therefore, if the title deed deposited mentions only the land nor the building standing thereon, still, the Kerala High Court held, that the mortgage would operate both on the land and the building. To a similar effect is the decision of a Single Judge of the Madras High Court in Berumull Sowcar v. Velu Gramny (1942) 1 M.L.J. 372. There also the title deed deposited mentions only the land and not the building thereon. The Madras High Court held that the title deeds though relating only to the land would clearly cover the house and their deposit would create an equitable mortgage of the entire property consisting of the ground and the superstructure standing thereon. We are in entire agreement with the view expressed by the Bench of the Kerala High Court and the Single Judge of the Madras High Court and hold that even though the title deed deposited relates to land only, if at the time the deposit was made there were any structures on it, equitable mortgage would be created both with regard to the land as well as the structures thereon.
7. On the other hand, Mr. M.N. Padmanabhan, learned Counsel for the defendants 1 and 2 would contend that it is provided under Section 8 of the Transfer of Property Act that unless a different intention is expressed or necessarily implied, a transfer of property passed to the transferee, all the interests which the transferor is capable of passing in the property; But, in the present case Annexure 1-A attached to the sale deeds Exs. A-1 to A-5 shows that the intention of the parties is to exclude the garage and in such circumstances, the principles laid down in Section 8 of the Transfer of Property Act will not apply. A perusal of Annexure 1-A attached to the sale deed Ex. A-2 shows that the intention of the parties to the sale deed is not to include the superstructure of the garage in the sale deed Ex. A-2 and in these circumstances we cannot hold by applying the principles laid down in the above decisions based on Section 8 of the Transfer of Property Act that the superstructure of the garage is also transferred along with the land in the ASchedule, to the plaintiff, defendants 3 to 5 and the other co-owner K.R.Shantha under Exs. A-1 to A-5. An examination of the sale deed Exs. A-1 to A-5 shows that the entire extent of land measuring 2 grounds and 1,650 sq.ft. described in the A Schedule, which include an extent of 210 sq.ft. over which the garage is put up has been sold by the first defendant to the plaintiff, defendants 3 to 5 and the other co-owner K.R.Shantha. But, the superstructure of the garage alone is not conveyed by the first defendant under Exs. A-1 to A-5. This leads us to the conclusion that the first defendant cannot convey any title to the land measuring 210 sq.ft. over which the superstructure of the garage is put in A Schedule to the second defendant under Ex. A-6. But, the first defendant can convey good title only to the superstructure of the garage to the second defendant under Ex. A-6 inasmuch as the superstructure of the garage is not included in the sale deeds Exs. A-1 to A-5.-As already stated, inasmuch as the second defendant has no title to the land measuring 210 sq.ft. over which the superstructure of the garage is put up, the only right available to the second defendant is to remove the superstructure as a purchaser of the superstructure alone under Ex. A-6.
8. The appellate court took the view that inasmuch as in none of the documents viz., Exs. A-1 to A-5 it had been mentioned that the vendees under those documents are entitled to the garage which was put up on a portion of the A Schedule property, the plaintiff and other co-owners of A Schedule cannot claim the garage. This view of the appellate court may be correct as far as the superstructure of the garage is concerned, but, not with regard to 210 sq.ft. of land in A Schedule over which the superstructure of the garage is put up. I have already found that the second defendant has no title to the land measuring 210 sq.ft. in the A Schedule property over which the garage is put up and since the said 210 sq.ft. of land forms part of the A Schedule Property the plaintiff, defendants 3 to 5 and the other Co-owner K.R. Shantha 2 alone are entitled to the said land measuring 210 sq.ft. over which the garage is put up. In these circumstances, the plaintiff along with his co-owners of the A Schedule property are entitled to a decree as prayed for in the suit in respect of the suit except the superstructure of the garage. As the second defendant has title to the superstructure of the garage he is entitled to remove the superstructure of the garage, the infirmity in the judgment of the lower appellate court is that in coming to the conclusion that the plaintiff and the other co-owners of the A Schedule property are not entitled to the garage including 210 sq.ft. of land on which the superstructure of the garage is put up the lower appellate court clearly misconstrued the documents Exs. A-1 to A-5 which will clearly go to show that the plaintiff and the other co-owners of A Schedule property are entitled to the land measuring 210 sq.ft. over which the superstructure of the garage is put up. The lower appellate court also failed to consider the vital admission of D.W. 1 that the land measuring 210 sq.ft. on which the superstructure of the garage is put up forms part of the A Schedule property measuring 2 grounds and 1,650 sq.ft. sold under Exs. A-1 to A-5. On this ground the judgment of the lower appellate court is liable to be set aside.
9. Another reason given by the lower appellate Court for non-suiting the plaintiff is that one of the co-owners of the A Schedule property viz., K.R. Shantha Balasubramaniam, had not been impleaded as a party in the suit. I have already found that the first defendant cannot convey any title to the second defendant in respect of 210 sq.ft. of land in the A Schedule over which the superstructure of the garage is put up and hence the possession of the said 210 sq.ft. of land by the second defendant is not lawful and that the second defendant is in possession of the said land of 210 sq.ft. only as a trespasser. It is a well settled proposition of law that one co-owner can file a suit and recover possession of the property on behalf of the co-owners from a trespasser. In Pendekkallu Thimmayya v. Pendekkallu Siddappa (1923)75 IC. 112, a Division Bench of this Court dealing with the question whether one co-owner can file a suit for recovery of possession of property on behalf of the co-owners from a trespasser has held as follows:
One co-owner may sue to eject a trespasser without the other co-owners being made parties to the suit, provided the title of the latter is not denied.
10. In Palaniswamy Gounder v. Nachimuthu Gounder (1977) 2 M.L.J. 1310, dealing with the same question, V. Sethuraman, J., has held as follows:
It is clear that a suit could be filed by a co-owner against a trespasser and it is not necessary that in such a case all the co-owners must join together or must be impleaded.
The plaintiff in this case prays for declaration that the garage mentioned in the A Schedule property is the common property of the plaintiff and his co-owners of the other flats and for directing the second defendant to deliver possession of the garage to the plaintiff and other co-owners. The plaintiff in this case does not deny the other co-owners' right in the A Schedule property and he prays fora joint decree in favour of the plaintiff and the other co-owners. In view of the settled position of law as referred above, the lower appellate court is not justified in holding that the suit as framed is not maintainable, on the ground that one of the co-owners was not impleaded as a party in the suit.
11. The above discussion of mine obliges me to interfere with the judgment of the lower appellate court. Accordingly the second appeal is allowed, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored with the modification that liberty is given to the second defendant to remove the superstructure of the garage within six months from to-day. There will be no order as to costs.