Andhra HC (Pre-Telangana)
Jaggavarapu Krishna Reddy And Anr. vs Jaggarvarapu Chittemma And Ors. on 22 December, 1997
Equivalent citations: 1998(2)ALD286, 1998(2)ALT95, 1998 A I H C 3834, (1998) 1 LS 305, (1998) 2 ANDHLD 286, (1998) 2 ANDH LT 95
ORDER
1. The appellants are the plaintiffs in O.S.No. 119/89 on the file of the learned Subordinate Judge, Khammam. The respondents herein are the defendants along with Defendant No. 1, Jaggavarapu Venkata Reddy. The parties are members of the same family as having been closely related. The plaintiffs are the 4th defendant are three sons of the 1st defendant. 2nd defendant is the wife of 4th defendant and 3rd defendant is son of 4th defendant. The plaintiffs and Defendants 1 and 4 were members of the joint family. The suit schedule properties and other properties belong to the joint family. They effected partition of the joint family properties under a partition deed Ex. A1 dated 29-5-1965 and the suit schedule properties fell to the share of the 1st defendant. The Defendant No. 1 alienated the suit schedule properties in favour of Defendants 2 and 3 under Ex.A2 gift deed dated 11-9-1984. The plaintiffs initially filed the suit for declaration that Ex. A2 is not binding on them as they had the right and title to the suit schedule properties in equal share by virtue of the recitals in Ex.A1 that they were to partition the same among them equally after their father's life, They sought for a declaration that Ex.A2 is not binding on them and also for possession of the suit schedule properties. Subsequently, they amended the plaint seeking partition and separate possession of their 1/3rd share in the suit schedule properties for possession, mesne profits etc. The defendants contested the suit. The 1st defendant died during the pendency of the suit. The following issues were settled:
"(1) Whether the plaintiffs are entitled to the declaration asked for ? Additional issues were framed on 8-7-1987;
(2) Whether the plaintiffs are entitled for partition and separate possession of their l/3rd share in the suit schedule property ?
(3) Whether the gift deed dated 11-9-1984 executed by D1 in favour of D2 and D3 is void and it is not binding on the plaintiffs ?
Additional Issue No.1 : Whether the plaintiffs are entitled for partition and separate possession of their 1/3rd share in the suit schedule property ?"
2. The parties went to the trial. Both oral and documentary evidence were recorded. The 2nd plaintiff examined himself as PW1 and a witness as per PW2 and Defendant No. 4 examined himself as DW1 and Defendant No. 3 as DW2 and a witness as per DW3. Ex.A1 partition deed dated 29-5-1965 and Ex.A2 settlement deed/gift deed dated 11-9-1984 (both documents are certified copies) were marked for plaintiffs and Ex.B1 Cist receipt dated 2-4-1986. Ex.B2, certified copy of Pahani for the year 1984-85 and Ex.B3 certified copy of Pahani for the year 1985-86 were marked for the defendants. After hearing both sides and with the materials, the learned Subordinate Judge accepted the case of the plaintiffs and held that they were entitled to l/3rd share each in the suit schedule properties and for partition of the said share and that the gift deed Ex. A2 is not binding on them and consequently decreed the suit without costs. The unsuccessful defendants took the matter in appeal before the learned Addl. District Judge, Khammam in AS No. 16/90 and the learned District Judge after hearing both sides and on reassesment of the entire materials disagreed with the learned Subordinate Judge in regard to the findings and on the other hand held that the plaintiffs were not entitled to 1/3rd share in the suit schedule properties, that there was a gift of such properties by defendant No.1 in favour of Defendants 2 and 3 regarding which he was entitled to gift and that the plaintiffs are not entitled to the reliefs claimed and consequently allowed the appeal and set aside the judgment and decree of the learned Subordinate Judge and consequently dismissed the suit. Aggrieved by that the plaintiffs have come up with this second appeal.
3. Mr. T. Veerabhadrayya, learned senior advocate for the appellants in addition to the grounds taken in the memorandum of appeal has raised the following questions of law for determination:
(1) Whether the interpretation of Ex.A1 by the learned District Judge is wrong leading to wrong inference and therefore his judgment is vitiated ?
(2) Whether the findings on the issues in favour of the plaintiffs recorded by the learned Subordinate Judge were interfered with by the learned District Judge without proper reasons or proper interpretation of Ex.A1 and therefore the judgment cannot be supported ?
4. Mr. E.S. Ramachandra Murthy, learned senior advocate for the respondents has contended that in view of the unambiguous recitals in Ex.A1, there was no scope for further interpretation of the document and as the learned Subordinate Judge had not properly interpreted the document, the learned District Judge had to interpret it correctly and the inferences leading to the findings against the plaintiffs in the appeal were justified and even assuming that the document has to be reinterpreted in its true and its correct perspective, there is no scope for disagreeing with the finding of the learned District Judge on these issues and that there is no merit in this appeal.
5. It need not be emphasized that the interpretation of a document is a judicial process leading to legal inferences; the correctness or otherwise would raise the substantial questions of law. The learned Subordinate Judge had interpreted the document Ex.Al in tune with the case of the plaintiffs whereas the learned District Judge did it conversely. Both the learned Judges have given sufficient reasons in support of their respective findings. Therefore as part of examining the propriety and correctness of the substantial questions of law decided by the Courts below, this Court has a task to go through Ex.Al to know whether the interpretation of the learned Judges is correct or not to take it as substantial question of law. It must be emphasized that the finding regarding Ex.A2, being the gift in favour of Defendants 2 and 3 and not being found to be genuine or not capable of transferring the rights to the properties by Defendant No. 1 to them, has not raised any question. Similarly, no other question is raised by the plaintiffs-appellants to determine except the substantial questions of law stated above and therefore there is no need to advert to them in this appeal
6. It is fundamental that in order to interpret a document, the whole document has to be read together and not the stray expressions therein. The admitted factum arising out of Ex.A1 are that the plaintiffs, defendant No.1 and 4 are members of the joint family, divided the joint family properties including the suit schedule properties into their respective shares as described in the schedule and continued as such till the date of the suit with reference to the suit schedule properties and their shares. The respective shares given to the father and the sons were also understood to be theirs after the partition. The date of Ex.A1 being 29-5-1965 and Ex.A2 being 11-9-1984, the partition document suited to their factum status from the date of Ex. A1 till the date of Ex. A2 and till the date of the suit (the date of the suit being 10-7-1989) except that the mother of the plaintiffs and defendant No.4 was dead by the time of the suit was filed.
7. Ex.A1 is rightly in Telugu. The expressions therein are generally very categoric and clear. None of the parties has alleged or established that there is any ambiguity in the language employed in the document. It is nobody's case that the parties to the document have not understood the language in the document or that they understood it in a different manner. No mistake of fact is pleaded to make it a void document under Section 20 of the Contract Act in so far as any stipulation is concerned. Both the learned senior advocates have equally given English translation of the relevant recitals in Ex-A1 which requires to be read more than once to know the true intention of the partition and to gather the rights created in them by virtue of the partition. Both the learned advocates have very fairly conceded that the whole outcome of the decision depends upon the meaning which we can attach to the recitals in Ex.A1 of which translation is given. The relevant which are short may be reproduced for the sake of convenience:
"(1) As mentioned hereunder, it is divided into four equal shares. From now onwards the sharers shall take possession of their respective shares allotted to them and shall enjoy the same with rights of proprietoryship, possession and rights of alienation, gift, exchange etc. From now onwards they shall pay taxes payable to Government relating to their respective shares.
(2) Amongst us, as Sri Jaggavarapu Venkata Reddy is the father of others, equal share is given to him as per his consent. The responsibility of maintaining the father and his wife Mahalakshmamma i.e., mother of other sharers shall be on the sons during her life time. The property that fell to the share of the said Venkata Reddy has to be divided among us in three equal shares and is to be enjoyed. The share of Venkata Reddy shall remain with him wherever he stays with others (sons) and after his death this arrangement is to be done as stated above."
8. Mr. T. Veerabhadrayya, learned senior advocate for the appellants has pointed out from such recitals the parties clearly intended that the joint family properties were divided into four shares, each of them was given respective share mentioned in the schedule to the document, the share of Defendant No.1, was to be divided among the plaintiffs and Defendant No.4 in equal shares after the death of Defendant No.l and till then, the suit schedule properties viz., the share of the Defendant No.1 should be with him with the liability for the sons to maintain the parents during their life time and that the understanding or agreement to divide the suit schedule properties into three shares among the plaintiffs and Defendant No.4 should take effect only after the death of Defendant No. 1. Therefore, he contends that only a life estate was created in favour of Defendant No.l to enjoy the suit schedule properties only during his life time and to allow the sons to divide the properties equally which had already been divided under the document He must be understood to contend that the right of the sons to get l/3rd share each in the suit schedule properties allotted to the Defendant No.1 was already settled in the document which was postponed only till the death of Defendant No.1 and therefore a proper construing of the stipulations supra in the document will definitely bring out the intentions of the parties that only life estate was given to defendant No. 1 in the share left with Defendant No. 1 for the sake of his enjoyment during his life time. From the extraneous evidence also he says that all the residential houses of the parlies being in the same compound or area, Defendant No.1 and his wife staying with one or the other son whenever they liked, did not decide the matter and any fact regarding looking after the parents or attending them during illness is not relevant although there are some recitals in Ex.A2 as to who looked after the parents and therefore in the absence of extrinsic evidence that there was violation on the part of the sons of Ihe Defendant No. 1 to fulfil any condition in Ex.Al to result in Ex.A2 without reservation of any right in defendant No. 1, it cannot be understood lhat Defendant No. 1 had retained any right in him in the suit schedule properties to alienate in favour of the Defendants 2 and 3 under Ex.A2. Mr. E.S. Ramachandramurthy, learned advocate for the respondents contended that if we read the relevant first recitals in Ex.A1 as above, it is certain that the partition was complete, the fourth share was given exclusively to Defendant No. 1, father for his absolute enjoyment including the right to alienate and for some purpose, the father had consented for the sons to divide the properties into three equal shares after his death provided the property remained intact during the life time of the father. It is also pointed out by him from the extraneous evidence and also from the recitals of Ex.A2 that Defendant No. having enjoyed the share exclusively for himself in all respects for a long time (19 years) after Ex A1, and having found that he had more attachment and confidence in Defendants 2 and 3, settled the properties by way of gift in favour of them under Ex.A2 and that itself discloses that he retained right of alienation and not merely a life interest in the suit schedule properties.
9. On going through the evidence in the case and also the judgment of the Courts below, this Court finds no extraneous evidence beyond Ex.A1 to know the conduct of the parties as to how Ex.A2 came into existence beyond the scope of Ex.A1, if what the plaintiffs are contending is true that Ex.A2 was repugnant to Ex. Al.
10. This Court having been assisted by both the learned senior advocates to know the implications of Ex.A1 and to interpret it is considering whether in such a situation, the parties to Ex.A1 had agreed to leave only life estate or contingent right to Defendant No. 1 in regard to the suit schedule properties. The vested and contingent rights have been explained as follows:
Vested and Contingent rights :-- A right vests when all the facts have occurred which must by law occur in or for the person in question to have the right. A right is contingent when some, but not all of the vestitive facts, as they are termed, have occurred. A grant of land to 'A' in fee simple will give 'A' a vested right of ownership. A grant to 'A' for life and then to 'B' in fee simple if he survives 'A', gives 'B' a contingent right. It is contingent because some of the vestitive facts have not yet taken place and indeed may never do so : 'B' may not survive 'A'. If he does, his formerly contingent right now becomes vested. A contingent right then is a right that is incomplete."
Thus the test stone or touchstone of the recitals in Ex.A1 and the conduct of the parties undoubtedly show that the partition was complete. No remainders were left. The family properties in four equal shares as described in the schedule to Ex.A1 are allotted to the respective persons including the plaintiffs, Defendant No.1 and Defendant No.4, the father and the three sons, they came into possession of their respective shares, even the mutation is changed and separate assessment was also paid. The respective shares remained with respective sharers. In other words, the suit schedule properties remained with Defendant No. 1 ever since the date of Ex.A1 till the date of Ex.A2. It is nobody's case that Ex.A2 was not acted upon. In other words, Defendants 2 and 3 should be taken to have come into control of the suit schedule properties subsequent to Ex.A2. Therefore, no contingency or understanding was reserved to be expected or performed by the four persons under Ex.A1 possibly except the death of Defendant No.1. The first portion of the recitals not only has declared that the sharers shall take possession of their respective shares allotted to them but also enjoy the same with rights of proprietoryship, possession and rights of alienation, gift, exchange etc., and they shall pay taxes payable to Government relating to their respective shares. The declaration of rights has been followed with the declaration of the limitations also. The limitations are totally absent and the rights have been absolutely declared. The liabilities are totally absent but the rights are declared. There is a positive declaration that the sharers will have a right of proprietoryship, possession and rights of alienation like gift exchange etc. and Ex,A2 should cover such an expression. At no time the parties complained about such a declaration of right nor such a declaration of right is challenged to be vitiated for any reason including the fraud, mistake of fact, undue influence etc. Therefore, such declaration of right includes positive right to alienate the suit schedule properties by Defendant No. 1 as contained itself in Ex.A1 and continued till the date of Ex. A2 with him. If that is the only recital, then there is no scope at all for the plaintiffs to challenge Ex.A2.
11. Now coming to the second part of the recitals supra, as rightly pointed out by Mr. T. Veerabhadrayya, learned senior advocate for the appellants, the parties have agreed that the responsibility of maintaining parents was rested with the sons, that the share of Defendant No.1 was to be divided among the sons in three equal shares and to be enjoyed but the shares shall remain with Defendant No. 1 wherever he stays and after his death, the above said arrangement should take effect (to mean that the properly should be divided among the three sons). Mr, Veerabhadrayya has pointed out that when a separate share was allotted to defendant No. 1 in the joint family properties, there was no obligation in law for his sons to maintain him or the mother in Hindu law and secondly since the sons were to succeed to the estate of the father by virtue of Schedule I of the Hindu Succession Act, it was not necessary to be specifically stated as to what will happen in future after the death of the father except to divide the properties and the very statement that they shall be entitled to divide the properties would mean that their rights to such properties for equal shares had been decided only to be postponed till the death of Defendant No. 1. This Court feels little difficulty in accepting such a circumstance in favour of thinking of life estate to the 1st defendant. There appears to be some wrong or inept drafting in regard to the recitals in item 2 in the translation given. In the first place, somehow it stated that the share was given to Defendant No.l as per his consent with liability to maintain the parents and that the property to be divided by the sons after the death of Defendant No.l, although the first portion supra clearly stated that the Defendant No. 1 or any other sharer had a right of alienation including the gift, exchange etc. When there is repugnancy between two portions of the document, they must be read together to bring harmony in the meaning and the result into legal effect. A vested right created absolutely can be divested to make it contingent right by positive declaration and not with any doubtful recitals. When the positive facts had already taken I place by virtue of totality of the recitals in the document that the respective shares absolutely vested in the respective sharers, the second portion mentioning some stipulations giving any second meaning in the situation cannot be taken to differ or divest the right which was already created by virtue of the recitals in the first portion. When there is positive declaration that the Defendant No.l had the right of alienation in his share and in the absence of positive declaration that he had no right to alienate or propriety to alienate, the latter clause or item 2 cannot be read to cancel the effect of the first portion as to the right of the person to alienate the property. It is well known that some limes certain documents will have certain recitals either not very relevant or only to record the emotions of the parties. Notwithstanding the father and the sons dividing the family properties, their emotional attachment cannot be expected to severe merely on bringing into existence of such a document. It is also well known that more than not there will be physical disruption of the family status but not mental one and that is how there may be many recitals which may some times may not give true or full meaning or that they appear on record at the instance of the parties only to satisfy their emotions. In the considered opinion of this Court, the second portion in Ex.A1 may be one such an illustration. It is possible that although the share of the suit schedule properties was exclusively allotted to the father, the parents were never against the sons getting the suit schedule properties after their death. However, that was to take place subsequent to Ex.A1. Therefore, the expressions in item 2 as above, in the considered opinion of this Court, may not improve the expression in item 1 as above creating absolute and vested right of the 1st defendant to the suit schedule properties, to divest it merely on his death. It is not a case of reversion. It is a case of divesting. Such a contingency has not been disclosed in Ex.A1.
12. It was also examined whether Ex.A2 had been managed to be got up by Defendants 2 and 3 by undue influence since there is an indication in the pleadings. But the finding is against as there is no material in support of it. It was also examined whether the 1st defendant was dissatisfied with the sons viz., plaintiffs in regard to their maintaining the parents and therefore Ex. A2 was executed. Although there are some positive statements in Ex.A2 appreciating the services of Defendants 2 and 3 that they looked after him and his wife during her illness, there is nothing to indicate that either the 1 st defendant dislocated the plaintiffs or that even the Defendants 2 and 3 taken up the responsibility. Even the recitals in Ex.A2 also may not give correct meaning if it is properly read as rightly pointed out by Mr. T. Veerabhadrayya as Defendants 2 and 3 could not have depended on Defendant No.1 for any purpose in the absence of materials on record. Therefore, with the materials on record and the recitals in Ex.A1 and Ex.A2 and on proper appreciation of the recitals, this Court finds that Defendant No. 1 having known that he had absolute right to the suit schedule properties with right of alienation parted with them in favour of Defendants 2 and 3 who are none other than his grand son and daughter-in-law and who are members of the same family due to certain reasons which were known to him and which are not disclosed before the Court. Mr. T. Veerabhadrayya is right in submitting that the latter part of the document should be read to understand the earlier part of the document to know the true implications and that has been decided. This Court finds no reason to disagree with the learned District Judge in regard to the interpretation of Ex.A1 and is totally convinced that all the probabilities are in favour of creating absolute and vested right in Defendant No. 1 to alienate the property between Defendants 2 and 3. Although serious question of law has been raised, there is no error in deciding the same. The appeal is dismissed. In the peculiar circumstances of the case, there shall be no order as to costs through out.