Kerala High Court
Narayanan Radhakrishna Menon vs (***)
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 10TH DAY OF JANUARY 2018 / 20TH POUSHA, 1939
SA.No. 237 of 1998(C)
AGAINST THE JUDGMENT AND DECREE DATED 30.09.1997 IN AS NO.98/1990 of SUB COURT,
CHERTHALA
AGAINST THE JUDGMENT AND DECREE DATED 31.01.1990 IN OS NO. 842/1986 of .ADDITIONAL
MUNSIFF'S COURT,CHERTHALA
APPELLANT IN S.A.-APPELLANT NO.1 IN THE LOWER APPELLATE COURT-DEFENDANT NO.1 IN SUIT:
NARAYANAN RADHAKRISHNA MENON, RESIDING AT
AREEPPARAMBATHU NADUVILEVEETTIL,
THEKKUM MURI, CHERTHALA.
(APPELLANT NO.2 IN THE LOWER APPELLATE COURT DIED PENDING THE APPEAL. HIS LEGAL
REPRESENTATIVES WERE NOT IMPLEADED AS BEING NOT NECESSARY, SINCE HE WAS ACTING
ONLY AS POWER-HOLDER OF APPELLANT NO.1)
BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE)
SRI.P.B.KRISHNAN
RESPONDENTS 1 & 2 IN S.A.-RESPONDENTS 1 & 2 IN THE LOWER APPELLATE COURT-PLAINTIFFS IN
THE SUIT:
1. NARAYANAN SUKUMARA MENON, SREEGANGAYIL ALSO CALLED
AS KIZHAKKEKUNNEL FROM AREEPPARAMPATHAYA KUNNEVELIYIL,
THEKKUM MURI, CHERTHALA.
(2) NARAYANAN VASUDEVA MENON, MANIBHAVANAM, FROM KIZHAKKEKKUNNEVELIYIL
OF DO. DO. (DIED)
RESPONDENTS 3 TO 8 IN S.A.-RESPONDENTS 3 AND 5 TO 9 IN THE LOWER APPELLATE COURT -
DEFENDANTS 3 AND 5 TO 9 IN SUIT:
(*)DIED
3. NARAYANAN PADMANABHA MENON, GANAPATHIKKATTU PUTHENPURAYIL FROM
AREEPPARAMPATHU VADAKKEVEETTIL, PERUNNERMANGALAM MURI,
MARARIKULAM NORTH.
(**)DIED
4. NARAYANAN RAMAN MENON, RAMALAYATHIL AREEPPARAMPATHAYAVELIYIL,
THEKKUM MURI, CHERTHALA.
(*)DIED
5. NARAYANAN ANANTHAPADMANABHAN, ARUNAVIHARIL, AREEPPARAMPATHAYA
ASARIPARAMBIL OF DO. MURI,.
(*)DIED
6. NARAYANAN PARAMESWARA MENON, MANI BHAVANAM, PERUNNERMANGALAM MURI,
MARARIKULAM NORTH.
7. PARU AMMA PADMINI AMMA, AREEPARAMPATHAYA KUNNELVELIYI, MATTATHIL
THEKKUM MURI, DO.
SA NO.237 OF 1998 2
8. PARU AMMA KOMALAVALLI AMMA, IN DO.
(*)THE APPELLANT IS EXEMPTED FROM THE NEED OF IMPLEADING THE LRS OF DECEASED R3, R5
AND R6 AS PER ORDER DT.14/3/03 ON CMP.529/03.
(**)RESPONDENT NO.4 DIED
THE APPELLANT IS EXEMPTED FROM THE NEED OF IMPLEADING THE LRS OF THE DECEASED 4TH
RESPONDENT, AS PER ORDER DT.19/11/03 ON IA.1212/03.
RESPONDENTS 9 TO 13 IN S.A. -RESPONDENTS 10 TO 14 IN THE LOWER APPELLATE COURT - (LEGAL
REPRESENTATIVES OF DECEASED RESPONDENT NO.4 IN THE LOWER APPELLATE COURT):
(***)
9. K.K.CHELLAMA, DESAPURAM, CHERTHALA NORTH P.O. (*)DIED. RECORDED
10. MOHANDAS OF DO. IN DO.
11. BHAGAVANDAS OF DO. IN DO. DO.
12. EASWARDAS OF DO. IN DO. DO.
13. HARIDAS OF DO. IN DO. DO.
(***)R10 TO R13 ARE RECORDED AS THE LRS OF DECEASED R9 AS PER ORDER DT.7/6/07 IN MEMO
C.F.2568/07 DT.1/6/07.
R7 & R8 ADV. SRI.PIRAPPANCODE V.S.SUDHIR
R7-R13 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2017 ALONG WITH S.A.NO.239 OF
1998,THE COURT ON 10.01.2018 DELIVERED THE FOLLOWING:
"C.R."
A.HARIPRASAD, J.
--------------------------------------
S.A. Nos.237 & 239 of 1998
--------------------------------------
Dated this the 10th day of January, 2018
COMMON JUDGMENT
These second appeals emanate from the judgments and decrees in two suits; viz., O.S.Nos.538 of 1986 and 842 of 1986 filed before the Munsiff's Court, Cherthala. Appellant is the 1st plaintiff in O.S.No.538 of 1986 and the 1st defendant in O.S.No.842 of 1986. Contesting respondents are the opposite parties to the suits.
2. Brief facts are as follows: O.S.No.538 of 1986 is a suit for permanent prohibitory injunction. Plaint schedule property, with other items, originally belonged to Areepparambathu Raghava Menon. He bequeathed the plaint schedule property in favour of the plaintiffs' mother, Gouri Amma Bhavani Amma, by executing a Will dated 17.08.1122 M.E. After his death, the Will took effect and the property devolved on the legatee. There was a partition in the thavazhi of Bhavani Amma and D schedule in the deed of partition was set apart to the share of the plaintiffs. Since the 1st plaintiff was residing away, his younger brother, the 2nd plaintiff, was looking after the property. When the plaintiffs started construction of a building in the SA Nos. 237 and 239 of 1998. 2 property, the defendants obstructed. Hence the suit for prohibitory injunction.
3. In the written statement the defendants contended that the plaint schedule property never formed part of survey No.186/5A-2, having an extent of 1.53 acres. It formed part of 2.63 acres in survey No.186/5A. It is included in 63 cents, on the northern extremity of 2.63 acres of land. 63 cents mentioned above was not included in the Will. It is pertinent to note that execution of the Will by Raghava Menon was not disputed at all. Plaintiffs' mother did not get any right over 63 cents of land. Plaint schedule property was kept in common, as item No.37 of A schedule in a partition deed of the year 1100 M.E. That property had been used by the family members as a cremation ground. Thereafter, members of the family started using it for some rituals, like "paravaippu" and "thalapoli" in connection with "arattu" procession of Cherthala Devi Temple. Plaintiffs are not entitled to construct any building in the plaint schedule property.
4. The contentions raised in the plaint in O.S.No.842 of 1986 are identical to the plea in the written statement in O.S.No.538 of 1986. The contesting defendants in O.S.No.538 of 1986 are the plaintiffs herein. They reiterated their contentions and claimed an injunction decree against the defendants (plaintiffs in O.S.No.538 of 1986) from making any construction in the property.
SA Nos. 237 and 239 of 1998. 3
5. Defendants in the above suit contended that they are entitled to the property by virtue of the bequest by Raghava Menon in favour of their mother and also by subsequent partition in the family.
6. Ideally, these two suits should have been tried jointly. Instead, they were tried separately. Suit filed by the appellant and another (O.S.No.538 of 1986) was dismissed and the suit against the appellant and others (O.S.No.842 of 1986) was decreed. Hence they preferred A.S.Nos.91 of 1989 and 98 of 1990 before the Court of Subordinate Judge, Cherthala. The appeals were heard jointly and disposed by a common judgment. Pending the appeals, 2nd plaintiff in O.S.No.538 of 1986 died. The lower appellate court confirmed the judgments and decrees passed by the trial court and dismissed the appeals.
7. Heard the learned Senior Counsel appearing for the appellant and the learned counsel for the respondents.
8. Learned Senior Advocate contended that the lower appellate court erred in not considering the scope and legal effect of Exts.B1, A8 and A9 documents. Documents are referred to in the order in which they are marked in O.S.No.538 of 1986. It is further contended that the lower appellate court committed a grave mistake in proceeding on the basis that the appellant did not prove his title and possession to the suit property merely for the reason that there is a difference in survey number shown in SA Nos. 237 and 239 of 1998. 4 the plaint as well as in the documents. It is the definite contention that the court below failed to advert to the recitals in Ext.B1 and other documents, which in unmistakable terms indicate that any error in the survey number or sub division number should yield to the boundary descriptions. Ext.B1 is a "" (settlement deed). It is dated 02.04.1100 ME, which corresponds to 1925 AD. From the recitals in Ext.B1, it can be seen that executant Nos.1 to 4 and children of executant No.4, who were minors at that time, constituted the first sakha. Altogether there were eight members in the first sakha. We are only concerned with the rights conferred by Ext.B1 on the first sakha. From the recitals further down in Ext.B1, it can be seen, from paragraph 10, that following statements have been made:
"
37-)0 ."
This disposition clearly indicates that item No.37 in A schedule to Ext.B1 had been kept in common for being used as a cremation ground. It is also clear that there is a clause prohibiting alienation of the property. However, SA Nos. 237 and 239 of 1998. 5 this item is also set apart to the first sakha with other properties.
9. I have been taken through the schedule to Ext.B1. Item No.37 in Ext.B1 has the following description:
"
"
What is evident from the description is that the property takes in a cremation ground too. It is not discernible from the above description that the entire property was treated as a ground for cremating the dead. As per the boundary descriptions, on the east of item No.37, a way existed; on the south, item No.38 has been located. On the western boundary, paddy field and chira are mentioned. On the north, "Puthuparamban vaka veli", another garden land. Boundary descriptions in item No.38 would show that it is on the south of item No.37. It can be seen from the schedule that item No.38 is " o" property, excluding the northern portion set apart as a cremation ground. Descriptions of the properties, with reference to their boundaries, are clear from the document. Going by the measurement, item No.37 was having an extent of 63 cents.
10. Ext.A8 is the subsequent partition deed in the first sakha. That is dated 27.11.1107 ME, corresponding to 1932 AD. Executant Nos. 1, 2 and 4 in Ext.A8 are parties to Ext.B1. From the narrations in the document, it can be seen that C schedule item No.12 takes in both item Nos.37 and SA Nos. 237 and 239 of 1998. 6 38 in Ext.B1. As per this document, C schedule item No.12 was set apart to third sakha consisting of five persons, including the aforementioned Raghava Menon. In C schedule item No.12 the description is "
" The boundary descriptions will clearly show that item Nos.37 and 38 in Ext.B1 have been allotted together as C schedule item No.12 to third sakha in Ext.A8. It is important to note that the property was not described as a cremation ground in this document.
11. Ext.A9 is yet another partition deed in the family, dated 28.01.1116 ME, corresponding to 1941 AD. From the recitals therein, it can be seen that C schedule item No.12 in Ext.A8 had been divided among members in Ext.A9. In Ext.A9, A schedule item No.5 and B schedule item No.3 are parts of C Schedule item No.12 in Ext.A8.
12. Another relevant document is Ext.A1 Will executed by Raghava Menon. It is dated 17.08.1122 ME, corresponding to 1947 AD. It is manifest from the recitals in Ext.A1 Will that the properties set apart to the testator, Raghava Menon, as per Ext.A9 partition deed have been bequeathed in favour of the legatees. Clear recitals are made in Ext.A1 bequeathing the property in favour of Gouri Amma Bhavani Amma (mother of the appellant).
13. My attention has been drawn to certain observations in Ext.A9 to contend that a portion of the property situate in survey No.186/5A, SA Nos. 237 and 239 of 1998. 7 having an extent of 2.63 acres, has been included in the partition deed and southern portion of the said property, having an extent of 1.53 acres, was allotted to Raghava Menon. Pursuant to Ext.A1 Will, the said property devolved on Gouri Amma Bhavani Amma is the contention. It is further contented by the appellant that an inadvertent mistake had crept in Ext.A1 Will, while describing the disputed property, but its boundaries have been clearly stated. In paragraph 3 of Ext.A9 the following descriptions have been made in respect of the property:
"
...............
14. Learned Senior Counsel argued that description of the property bequeathed by Ext.A1 as "" (southern portion) can only be a mistake and actually it should have been the northern portion, viz., "". According to the learned Senior Counsel, the boundaries will clearly show that the property bequeathed to Gouri Amma Bhavani Amma is a part and parcel of item No.37 in Ext.B1 partition deed. By successive partitions in the family, Raghava Menon obtained title to the SA Nos. 237 and 239 of 1998. 8 property as per Ext.A9 and thereafter he validly created the testament. The contention that this property has been used as a cremation ground is strongly denied by the appellant.
15. Per contra, learned counsel for the respondents contended that the appellant's claim is not sustainable in view of the concurrent findings by the courts below. It is clear from Ext.B1 that item Nos.37 and 38 put together had an extent of 2.63 acres in survey No.186/5A. Trial court observed that 1.52 acres described in Ext.A1 Will should be on the southern extremity of 2.63 acres. It also observed that the appellant had no explanation as to how survey number of the property happened to be shown as 186/5A-2. For this reason, the court below found that the appellant failed to identify the property. That apart, learned counsel for the respondents now contend that Ext.A1 Will was not proved in accordance with the legal requirements. It is relevant to note that no dispute regarding the execution of Will (Ext.A1) was raised by the respondents in their pleadings, nor an issue was cast on that aspect.
16. In the lower appellate court as well, the same disputes were raised as in the trial court. Lower appellate court accepted them. Apart from that, the contention of the respondents that the plaint schedule property is a part and parcel of common property set apart in Ext.B1 partition deed as a cremation ground has also been accepted. SA Nos. 237 and 239 of 1998. 9
17. Learned Senior Counsel strongly contended that after Gouri Amma Bhavani Amma obtained 1.53 acres by a bequest through Ext.A1, she had alienated portions of the property by various documents. A portion of the above said property was sold in 1961 by Gouri Amma Bhavani Amma as per Ext.A3 sale deed in favour of the President, Thekkumuri Coir Industries Co-operative Society. Vendor's title therein was traced to Ext.A1 Will. Extent of the property is 60 cents in survey No.186/5A.
18. Another portion of the property was gifted by Gouri Amma Bhavani Amma in favour of Vanitha Sangam as per Ext.A4 document tracing the same title. It is also a portion of the same survey sub division. Ext.A5 is a sale deed executed in the year 1961 by Gouri Amma Bhavani Amma in favour of Khadhi Society in respect of a portion of the property included in Ext.A1 and comprised in the above survey number. Its extent is 40 cents. Ext.A6 is another sale deed in the year 1967 executed by Gouri Amma Bhavani Amma in favour of Khadhi Co-operative Society. Its extent is 12 cents in the same survey sub division. Appellant contended that B schedule item No.5 in Ext.A2 partition deed, executed in the year 1974, is the property remaining after the transfers effected through Exts.A3 to A6. Ext.A7 series are tax receipts produced by the appellant to show that he and his predecessor-in-interest enjoyed the property with absolute right and possession.
SA Nos. 237 and 239 of 1998. 10
19. Question of identity of the property may not assume much significance, as the parties had gone for trial fully understanding as to which was the property in dispute. Further, mere inaccuracy in describing the survey number, completely ignoring other identifying features like boundaries, extent, etc. cannot be regarded as a major point to hold that there is lack of clarity regarding identity of the property.
20. Based on the aforementioned documents, learned Senior Counsel for the appellant contended that it is evident that item No.37 in Ext.B1 partition deed had been dealt with by the parties as separate property of the allottees. They did so as per subsequent partition deeds as well. The restriction on alienation imposed by the recitals in Ext.B1 was never observed or obeyed. Various persons took assignments of various portions of the property included as item No.37 in Ext.B1 and they have constructed buildings thereon. What is remaining after the assignments is the plaint property. However, wrong description in Ext.A1, that what was bequeathed in favour of Gouri Amma Bhavani Amma was the southern portion, can explicitly be seen a mistake on perusal of the boundary descriptions in the document.
21. In the light of the aforementioned factual settings and also after hearing the learned counsel on both sides, I reframe the substantial questions of law thus:
SA Nos. 237 and 239 of 1998. 11
(i) After allotting item No.37 in Ext.B1 partition deed absolutely in favour of the first sakha, can a restriction be imposed on alienation of the property and if so, whether it will amount to a condition restraining alienation prohibited by Section 10 of the Transfer of Property Act, 1882 ("TP Act", for short) or by application of the principles thereunder?
(ii) In the absence of any sort of a denial, can Ext.A1 original Will be taken as proved under Section 90 of the Indian Evidence Act, 1872 ("Evidence Act" for short), as it was more than 30 years old on the date of production before the court and it came from a proper custody?
(iii) Whether a wrong description of property in Ext.A1 Will would make the bequest void for uncertainty?
Question No.i
22. I have already quoted paragraph 10 from Ext.B1. The question raised by the learned Senior Counsel is that the condition imposed in paragraph 10 in Ext.B1 partition deed is a condition restraining alienation prohibited by Section 10 of the TP Act. The Section reads thus:
"Condition restraining alienation.- Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the SA Nos. 237 and 239 of 1998. 12 condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him:
Provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein."
It is indisputable that the embargo created by the Section applies only to a condition imposed at the time of transfer of property. A question may arise whether such a condition in a partition deed will attract the indignation of the Section, because a partition cannot be regarded as a transfer in general terms. I shall answer it later.
23. Section 11 of the TP Act is also relevant in this context. It reads thus:
"Restriction repugnant to interest created.- Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.
Where any such direction has been made in respect of one piece of immovable property for the SA Nos. 237 and 239 of 1998. 13 purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof."
As long as it is not established that the condition of inalienability imposed in Ext.B1, in respect of item No.37, is for the beneficial enjoyment of another piece of property set apart to the sharers in the partition deed, it is clear that the condition may not hold good. It is all the more so because the property was intended to be detained in perpetuity for the purpose of cremating the dead. In other words, imposition of the condition cannot be treated as a one for the beneficial enjoyment of any property included in the partition deed, but only for the personal need of the surviving members of the family. Therefore, second part of Section 11 of the TP Act cannot save the clause in Ext.B1.
24. Incidentally, another aspect worthy to be noticed is the non- applicability of the TP Act to the properties in Cherthala Taluk, which was part of erstwhile Travancore State. It has been clarified by the Supreme Court in Valliama Champaka Pillai v. Sivathanu Pillai and others (AIR 1979 SC 1937) that the principles of justice, equity and good conscience could be applied in such a situation. I shall quote:
SA Nos. 237 and 239 of 1998. 14
"27. In that connection, it is important to bear in mind that both at the time of making these mortgages and their redemption by one of the co- mortgagors, the Transfer of Property Act or any like statute was not in force in the State of Travancore, wherein these properties were situated. The questions posed are, therefore, to be answered in accordance with the principles of justice, equity and good conscience."
Whether Section 10 of the TP Act can be applied or whether the principles of justice, equity and good conscience can be applied make no difference in the factual settings in this case in the light of the following settled legal principles.
25. No authority need be mentioned to fortify a point that where a property is transferred subject to a condition or limitation absolutely restraining the transferee or persons claiming under him from parting with or disposing of interest in the property, the condition or limitation should be treated as void. Only exception possible is a lease, which we are not concerned in this case. Innumerable decisions are available explaining Section 10 of the TP Act. All of them firmly declare that any condition absolutely restraining the transferee or any person under him from parting with or disposing of his interest in the property should be treated as void. As this proposition is beyond any challenge, I do not intend to burden this SA Nos. 237 and 239 of 1998. 15 judgment with multitudinous precedents.
26. I shall now look into the contention of the respondents that a partition cannot be taken as a transfer falling within the sweep of Section 10 or Section 11 of the TP Act. Learned Senior Counsel relying on a passage from Sir Dinshaw Fardunji Mulla's "The Transfer of Property Act" (12th edition) contended that an agreement not to partition a property, though may be binding on the immediate parties, will not bind their successors-in-interest. The following observations in the text may be useful for our purpose:
"A right to partition is an incident of joint ownership of property. In Umrao Singh v. Baldeo Singh ((1933) ILR 14 Lah 353, 143 IC 615, AIR 1933 Lah 201), a testator left his property to his sons jointly with a direction that the property should not be partitioned till all the sons attain majority. The Lahore High Court held that this was an invalid restriction on the right of enjoyment even though it was for a limited time. An agreement not to partition, though it may be binding on the immediate parties, will not bind their successors in interest. The Bombay High Court has held that such an agreement is inconsistent with the Hindu law, and will not bind even the parties themselves; and the Allahabad High Court SA Nos. 237 and 239 of 1998. 16 has held that even an immediate party is not bound by an agreement not to partition for an indefinite time."
27. In many decisions, it has been held that though Section 10 of the TP Act may not be directly applicable to a deed of partition, absolute restraint on alienation in a deed of family settlement or partition will be invalid on general principles of law. In Nagashar Sahai v. Mata Prasad (1922 Oudh. 236) it was held so. This ratio was affirmed by the Privy Council in Mata Prasad v. Nageshar Sahai (AIR 1925 PC 272).
28. A learned Single Judge in Cheeru v. Kelu Nair (S.A.No.757 of 1980) held thus:
"Partition does not involve transfer and hence S.10 of the T.P.Act cannot apply in terms in the case of a partition. But the mere fact that partition does not involve transfer does not mean that any condition or limitation in a partition deed absolutely restraining the sharers from parting with or disposing of their rights in properties will be valid. Even though S.10 of the Act as such is not applicable to partitions, the principle underlying the section is applicable in cases of partitions also. If in a partition deed it is provided that a sharer to whom properties are absolutely allotted will not be entitled to transfer the same, that provision will be void on the principle laid down in SA Nos. 237 and 239 of 1998. 17 S.10. Whether it be under a sale deed or a gift deed or a partition deed, everything depends upon the nature of the estate obtained. If what is obtained is absolute ownership, power of alienation must go along with it. Any restraint of that power will be against public policy and will be deemed void. Otherwise it will lead to perpetuity which is opposed to public policy because property is always considered transferable. The only restriction is that one cannot transfer more than what he is having."
I am in respectful agreement with the above view.
29. While construing the terms in a settlement deed, containing clauses restricting encumbering and alienating the share allotted to one of the parties, a Division Bench in Fatima Sarohini Suresh v. Saraswathi Amma (1985 KLJ 433) held the following:
"It will not be inappropriate to proceed on the basis that Sections 10 to 14 of the T.P. Act and the corresponding provisions of the Indian Succession Act are but statutory recognition of principles even otherwise well settled. To impose a total restraint on transfer of property or to impose rules which keep it out of circulation offend public policy, irrespective of whether such conditions are imposed by a deed of transfer, a will or a simple contract. A contract opposed to public policy is SA Nos. 237 and 239 of 1998. 18 unenforceable; and in this view of the matter, the restrictive clauses in Ext.A2 have to be held as inoperative."
30. A Special Bench of the Madras High Court in T.V.Sangam Ltd. v. Shanmughasundaram (AIR 1939 Madras 769) considered a case where a partition deed among the father and sons was executed and it provided that certain houses should be held by them as tenants-in- common. The deed restrained the sons during, as well as after, the lifetime of the father, from alienating their share to strangers to the family, but allowed to sell within the family at a maximum price, which was far below the real value of the share of each son, that too without any obligation on the other to buy. In that context, the court held that the restriction on alienation amounted to an absolute restriction and therefore it was void under the principles of Section 10 of the TP Act.
31. A Division Bench of the Madhya Pradesh High Court in Kamalnarayan v. R.Kishorelal (AIR 1958 M.P. 246) held thus:
"Where under a family arrangement contained in an award, one of the members, to whom share in property is allotted in full proprietorship, binds himself not to alienate certain property, the income from which was to be used for supporting a charity under the directions in the award, the family arrangement might be binding SA Nos. 237 and 239 of 1998. 19 upon the parties to it, but the inalienability clause would not bind his successors. A restraint against alienation cannot derogate from a complete proprietary right. The inalienability clause offends Ss.10 and 11, T.P.Act."
32. On a survey of the decisions rendered by interpreting Sections 10 and 11 of the TP Act, the legal principles that can be deduced succinctly are that a clause in a partition deed restraining alienation of the properties allotted to the parties will be void, though a deed of partition cannot strictly be regarded as a document of transfer. Such a clause becomes void by applying the general principles of law that no property can be tied up in perpetuity and alienability is an integral and concomitant feature of ownership. Besides, on applying the equitable principles underlying the above provisions, an absolute restraint on alienation imposed on the allottees by the terms in a partition deed should be regarded as void and inoperative. Therefore, the parties to Ext.A1 could not have tied up the property in perpetuity. At the most, the clause must have had a binding effect on the immediate parties. It is clear from the conduct of the parties that by subsequent partition deeds, the parties have ignored the clause and started dealing with the properties as their absolute properties de hors the restrictions imposed in Ext.B1. Therefore, I am of the definite view that the condition imposing restriction on alienation in Ext.B1 partition deed can SA Nos. 237 and 239 of 1998. 20 never operate against the appellant and hence the substantial question of law is decided in favour of the appellant.
Question Nos.ii and iii
33. Learned Senior Counsel relying on Section 90 of the Evidence Act contended that in the absence of any denial of execution of Ext.A1 Will in the pleadings and evidence, the respondents shall not be allowed to raise any objection against the plaintiffs' right over the plaint schedule property. Section 90 of the Evidence Act deals with presumption as to documents 30 years old. It reads thus:
"Presumption as to documents thirty years old.-Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation.- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they SA Nos. 237 and 239 of 1998. 21 would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable."
34. On an analysis of the Section, it can be seen that its ingredients are:
(i) the document in question must be purported to be or proved to be 30 years old;
(ii) it must be produced from a custody which the court in the particular case considers proper;
(iii) if the above conditions are satisfied, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in that person's handwriting; and
(iv) in the case of a document executed or attested, the court may presume that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation to Section 90 unequivocally says that documents are said to be in proper custody, if they are in the place in which and under the care of the person with whom they would naturally be. It further says that no custody will be improper, if it is proved to have had a legitimate origin or if the circumstances of the particular case are such as to render such an SA Nos. 237 and 239 of 1998. 22 origin probable. It is clear from a reading of the Section and in particular the explanation that the presumption drawable under Section 90 of the Evidence Act has a direct bearing on the facts and circumstances in each case.
35. The phrase "may presume" has been defined in Section 4 of the Evidence Act as follows:
"May presume".- Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it."
A court, where it "may presume" a fact, has a discretion to presume it as proved or to call for confirmatory evidence of it, as the circumstances require in a given case. Of course, power of the court to call for evidence de hors the presumption cannot be doubted.
36. In this case, it is to be noticed that there is absolutely no denial of execution of Ext.A1 Will. No pleading has been raised by the respondents in that regard. No evidence has been specifically adduced challenging the execution of Ext.A1 Will. It goes without saying that a fact not pleaded cannot be proved. Both the trial court and the lower appellate court did not raise any issue or point regarding the genuineness of Ext.A1 Will. Admittedly, original Will had been produced in this case and marked on consent as Ext.A1. It was produced by the appellant, who is the son of SA Nos. 237 and 239 of 1998. 23 the legatee, and in that sense, it can only be found that Ext.A1 was produced from proper custody. Therefore, now no dispute can be raised about the genuineness of Ext.A1 Will in the light of the law enunciated in Section 90 of the Evidence Act. In the factual settings in this case there was no occasion for the court to insist on proving the Will as contemplated under Section 68 of the Evidence Act.
37. Two decisions rendered by the Supreme Court, touching upon Section 90 of the Evidence Act, are to be contextually mentioned as arguments have been advanced based on them. In Bharpur Singh v. Shamsher Singh ((2009) 3 SCC 687) the Supreme Court held that presumption regarding documents 30 years old cannot be applied to a Will. In paragraph 19, the Court observed thus:
"The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a will have no application. A will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. ....."
SA Nos. 237 and 239 of 1998. 24
A similar view was taken in M.B.Ramesh (D) by Lrs. v. K.M.Veeraje Urs (D) by Lrs. & others (2013 SAR (Civil) 574) by relying on Bharpur Singh's case (supra). Both these decisions were pronounced by a Bench of two learned Judges.
38. Learned Senior Counsel contended that the above decisions do not constitute binding precedents for the reason that a larger Bench decision of the Supreme Court, holding otherwise, was not referred to and considered in the decisions. I shall deal with this argument now.
39. Relying on Munnalal v. Kashibai (AIR 1947 PC 15) it is contended that a Will more than 30 years old and produced from proper custody should be presumed to be properly executed. Also, the testator should be presumed to be of sound mind at the time of execution. In that case, two suits for ejectment were consolidated and tried. Dissatisfied with the decree, an appeal was preferred before the High Court of Judicature at Nagpur and its decision was questioned before the Privy Council. Trial court decreed the suits, but on appeals the High Court dismissed them. Title of the plaintiffs in both the suits had been traced from one Balwant Singh, who died in the year 1907. Respondents claimed title through Bahadur Singh, the younger brother of Balwant Singh's father. In the appeal, it was not disputed that Bahadur Singh was the owner of property and had power to dispose of it by a Will. The only question was whether SA Nos. 237 and 239 of 1998. 25 he effectively made a bequest. It was contended that Bahadur Singh died on 13.04.1890, after having made a Will dated 30.03.1890 under which he bequeathed the property to his daughter Jankibai and her minor son Narain. The trial Judge held that the burden rested upon the respondents 1 and 2 to prove the Will. It was also held that though the court could presume under Section 90 of the Evidence Act that the Will had been properly executed and attested, the court could not, under that Section, presume that the testator, when he made his Will, was of sound disposing mind. Accordingly, the trial court held that the Will was not proved. In appeal, the High Court held that the presumption which could be drawn under Section 90 of the Evidence Act is extended to the testamentary capacity as well and held the Will stood proved. Noticing Sections 90 and 114 of the Evidence Act, the Privy Council held thus:
"The will of Bahadur was more than 30 years old and was produced from proper custody, and both the lower Courts rightly held that the actual execution and attestation of the will could be presumed under S.90; they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state SA Nos. 237 and 239 of 1998. 26 of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind and understood what he was about. This presumption can be justified under the express provisions of S.90, since a will cannot be said to be "duly" executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of S.114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. There was no evidence whatever that Bahadur was not in a perfectly normal state. Their Lordships feel no doubt that on this point the decision of the High Court was right, and that the will must be presumed to have been duly executed. The view taken by the learned Subordinate Judge would render it impossible, in most cases, to prove ancient wills. This disposes of the first appeal."
40. This decision of the Privy Council came up for consideration before a three Judge Bench of the Supreme Court in K.V.Subbaraju v. C.Subbaraju (AIR 1968 SC 947). The principle therein was approved in the following words:
"5. As aforesaid, the respondents did not produce the original will but produced only its SA Nos. 237 and 239 of 1998. 27 certified copy, Ex. B. 9, which they obtained from the record of Suit No. 21 of 1923 wherein Surayamma had filed the original will along with her written statement. The respondents, however, had given notice to the appellants to produce the original will alleging that it was in their possession but the appellants denied the allegation and failed to produce the will. Both the trial Court and the High Court were of the view that the said will along with other papers of Somaraju were in the appellants' custody, that they had deliberately withheld it as it was in their interest not to produce it. The trial Court therefore was in these circumstances justified in admitting the certified copy of the will as secondary evidence of the contents of the will. Since the will was executed in 1921 and the testator had died soon after its execution it was not possible to produce either its writer or the witnesses who attested it. It was undisputed that its scribe and the attesting witnesses were all dead except Daltapati Venkatapathi Raju, DW 4. But the appellants' contention as regards D. W. 4 was that he was not the same person who attested the will. The High Court appears to have relied upon Section 90 of the Evidence Act and to have drawn the presumption that the will being more than 30 years old it was duly executed and attested by the persons by whom it purported to have been executed and attested. Such SA Nos. 237 and 239 of 1998. 28 a presumption, however, under that section arises in respect of an original document. (See Munnalal v. Mt. Kashibai, AIR 1947 PC 15). Where a certified copy of a document is produced the correct position is as stated in Basant Singh v Brij Raj Saran Singh, 67 Ind App 180 = (AIR 1935 PC 132) where the Privy Council laid down that if the document produced is a copy admitted under Section 65 as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine. The production of a copy therefore does not warrant the presumption of due execution of the original document. The Privy Council repelled the argument that where a copy of a will has been admitted the Court is entitled to presume the genuineness of such will which purports to be 30 years old. Relying on the words "where any document purporting or proved to be 30 years old" in Section 90, the Privy Council held that the production which entitles the Court to draw the presumption as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcutta and Allahabad on which the argument was based were not correctly decided. This view has since then been approved of by this Court in Harihar Prasad v. Deo Narain Prasad, 1956 SCR 1 at p. 9) = (AIR 1956 SC 305 at p. 309). The SA Nos. 237 and 239 of 1998. 29 High Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the said will."
41. Striking difference between the facts in Munnalal and K.V.Subbaraju is that in the former case original Will was produced from proper custody, which was more than 30 years old, but in the latter, a certified copy of Will was produced. In that context, the Supreme Court clearly held that the presumption under Section 90 of the Evidence Act arises in respect of an original document only. The view taken by the High Court in Munnalal that the Will in question, being one more than 30 years old, was duly executed and attested by the person by whom it was purported to have been executed and attested, based on Section 90 of the Evidence Act, was affirmed by the Privy Council. Further, in Munnalal's case, it was held that such a presumption under Section 90 of the Evidence Act could arise only in respect of an original document. These legal principles were quoted with approval in K.V.Subbaraju.
42. Based on the above observations by a three Judge Bench in K.V.Subbaraju, with due respect, I find the declarations of law in Bharpur Singh and M.B.Ramesh (supra) cannot be regarded as binding precedents under Article 141 of the Constitution. The reasons therefor are obvious. The Supreme Court speaking through Constitution Benches in SA Nos. 237 and 239 of 1998. 30 A.R.Antulay v. R.S.Nayak (AIR 1984 SC 718 and AIR 1988 SC 1531) lucidly laid down that if a decision has been given per incuriam, the court can ignore it. This principle has been reiterated in Rattiram v. State of M.P. through Inspector of Police (AIR 2012 SC 1485). Notwithstanding the said pronouncements, in deference to the constitutional scheme and judicial discipline, this Court cannot, and shall not, make any declaration that a decision rendered by the Supreme Court is per incuriam.
43. However, there cannot be a dispute to the proposition of law that where a Bench of lesser strength did not follow an earlier binding decision, such a decision will not be a binding precedent under Article 141 of the Constitution of India. This proposition has been reiterated by a Full Bench of this Court in Raman Gopi v. Kunju Raman Uthaman (2011 (4) KLT 458) after referring to numerous precedents on the point. Full Bench held thus:
"When confronted with a like situation wherein the decisions of coequal benches are of conflicting nature on a legal issue, the law laid down by the Full Bench in Joseph's case (2001 (1) KLT 958 (F.B.)) will have to be followed. The later decision will prevail. A decision of the Apex Court on a declaration of law is binding on all High Courts and subordinate courts, in the light of Art.141 of the Constitution. Of course, what is relevant is the ratio SA Nos. 237 and 239 of 1998. 31 decidendi. The judgments of the Apex Court which have followed the binding decisions of the Constitution Bench or other Benches will thus be binding on other courts. The only exception pointed out is wherein a Bench of smaller strength did not follow an earlier binding decision, in a situation wherein the binding decisions of the earlier benches of the Apex Court are not brought to its notice. It is apparent that in such cases the decision of the Bench of smaller strength will be without the colour of a binding precedent under Art.141 of the Constitution. It may not be proper for the High Courts or subordinate courts to criticise and characterise a decision of the Apex Court which has laid down a point of law as per incuriam. Such is not the function of the High Court of subordinate courts."
For the said reasons, I am unable to follow the ratio in Bharpur Singh and M.B.Ramesh (supra) as a binding precedent in the light of lucid expression of law by the Privy Council in Munnalal's case, which was approved by a larger Bench of the apex Court in K.V.Subbaraju.
44. In the facts and circumstances established by pleadings and evidence in this case, I have no hesitation to hold that Ext.A1 Will, produced in original from proper custody and which was more than 30 years old should be taken as proved in all respects, including its execution SA Nos. 237 and 239 of 1998. 32 and attestation and also the testamentary capacity of the testator, Raghava Menon.
45. In this regard, a question raised by the learned counsel for the respondents based on a Division Bench decision in Sarada v. Radhamani (2017 (2) KLT 327) needs to be answered. It was held thus:
"16. There is a world of difference between the factum of a document akin to the Will being admitted under Section 58 of the Act and proof of due execution of the Will under Section 68 of the Act. The due execution of the Will cannot be proved otherwise than by recourse to Section 68 of the Act and Section 63 of the Indian Succession Act, 1925 as has been held time and again. The general provisions of Section 58 of the Act has obviously to give way to the special provisions of Section 68 of the Act which govern documents required by law to be attested. That some documents are required by law to be attested imply that law gives additional solemnity empowering the executants with rights and obligations thereunder. Section 68 of the Act operates as an exception in relation to documents required by law to be attested and cannot be said to be subject to Section 58 of the Act by any stretch of imagination. No distinction has been drawn by the statutory provision between an 'admitted Will' and a SA Nos. 237 and 239 of 1998. 33 'disputed Will' as has been rightly observed by Mr.Justice P.Bhavadasan in Paulose A.V.'s case (supra). One of the attesting witnesses if he be alive should be called for the purpose of proving its execution whenever a Will is used as evidence and for whatever purpose."
With respect, I am of the view that the sweeping observations mentioned above amounts to an overstatement of law, especially in the light of the principles in Munnalal and K.V.Subbaraju. Stated differently, the observations therein cannot be applied as a universal rule applicable to all situations. As the ratio in Sarada can be easily distinguished on facts and legal principles, I do not find any necessity to refer the decision to a larger Bench. The Division Bench did not consider the scope of Section 90 of the Evidence Act in Sarada's case. Likewise, it did not consider the binding ratio in Munnalal and K.V.Subbaraju. The principles stated therein may be correct in the backdrop of the facts and circumstances in that case. The legal proposition in Sarada can be differentiated by referring to the absence of consideration of Section 90 of the Evidence Act and the said precedents. Hence the law laid down in Sarada may not help the respondents, especially when the courts of facts did not think it fit to direct the appellant to prove Ext.A1 Will de hors the presumption under Section 90 read with Section 114 of the Evidence Act.
SA Nos. 237 and 239 of 1998. 34
46. Still further, the principles enunciated in Sarada may not apply to a case where execution of a Will is not denied and no challenge is made against testamentary capacity of the testator, in respect of an original Will more than 30 years old, produced from proper custody. In such a case, the presumptions under Section 90 read with Section 114 of the Evidence Act will help the propounder of the document and if the facts in a given case justify, the court can decide the lis without insisting on further proof of the Will.
47. Regarding the question of mis-description of property in the Will, learned Senior Counsel for the appellant contended that the principles in Section 75 of the Indian Succession Act, 1925 will be the answer. It reads thus:
"Inquiries to determine questions as to object or subject of Will.-For the purpose of determining questions as to what person or what property is denoted by any words used in a Will, a court shall inquire into every material fact relating to the persons who claim to be interested under such Will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduct to the right application of the words which the testator has used."
SA Nos. 237 and 239 of 1998. 35
The "Arm Chair Rule" was originally propounded in Boyes v. Cook ((1880) 14 Ch.D 53). The Rules reads thus:
"Armchair Rule.-Although, a will always speaks from the date of the death of the testator, in construing the will, the court of construction should determine the facts and circumstances respecting the testator's property and his family and other persons and things as at the date of the will, in order to give effect to the words used in the will when the meaning and applications of his words cannot be ascertained without taking evidence of such facts and circumstances. For this purpose, evidence is received to enable the court to ascertain all the persons and facts known to the testator when he made the will. The court, it has been said, puts itself into the testator's armchair."
This principle was followed in many decisions of the Supreme Court and this Court. Learned author Paruck on the Indian Succession Act (11th edition, at page 289) makes the following observations:
"This section deals with the admissibility of extrinsic evidence in aid of interpretation of wills. Under this section, the only evidence admissible is to show what the testator has written and not evidence to show what he intended to have SA Nos. 237 and 239 of 1998. 36 written, i.e., the facts and circumstances corresponding as far as possible with those referred to in the will. If the legatee is correctly described in the will, no further inquiry is necessary and no extrinsic evidence will be admissible. The words of the testator will necessarily refer to facts and circumstances respecting his property and his family and other persons and things, and the meaning and application of his words cannot be ascertained without evidence of such facts and circumstances. Evidence is therefore necessarily admissible to show facts and circumstances, corresponding as far as possible with those referred to in the will, for example, to show that person and the property actually exist as described. The court, however, must first attempt to construe the words of the will, and the questions whether further evidence is to be considered and what the materiality of that evidence is, depends with construction placed upon these words and on the existence of any subject matter to which they exactly correspond."
48. Regarding wrong description in a Will, Theobald on Wills (17th edition, at page 461) lays down the following principles:
"(b) Wrong Description
(i) Falsa demonstratio non nocet The principle of falsa demonstratio non nocet SA Nos. 237 and 239 of 1998. 37 means that if, on considering the language of a will with the aid of any admissible extrinsic evidence, the court comes to the conclusion that the testator intended to pass something and can determine what that something is, then the fact that the testator gave it a wrong description in his will does not prevent the will taking effect in regard to the subject matter intended by the testator. The principle may be applied in whatever part of the description the error occurred. Reference should be to the parts of the work that deal with the particular sort of gift in question, the principle that a will speaks from death, and to the chapter on ademption. "
49. Evidence available in this case clearly show that after Ext.B1 partition deed and dealings of the properties thereafter by the parties, they candidly understood identity of the properties. And they never intended to abide by the restrictions imposed in Ext.B1 regarding the manner of enjoyment of the dispositions. Merely because a wrong description in Ext.A1 Will, viz., northern portion of a particular property has been wrongly described as southern portion, it cannot be held that the Will is void for uncertainty. It is greatly important to note that series of documents produced and proved in the case clearly reveal the identity of the bequest. It is all the more important to note that there is no challenge against the SA Nos. 237 and 239 of 1998. 38 execution or attestation of the Will and also regarding the testamentary capacity of the testator. Subsequent to the coming into force of the Will, the property had been dealt with by various transactions like sale, gift, etc. What is left behind is the disputed property. Therefore, I find that Ext.A1 Will stands proved unambiguously for the reason that the original Will, which was more than 30 years old at the time of production, was produced from proper custody, coupled with the fact that there is no challenge levelled against the legality or genuineness of the document. Wrong description of property in the Will, which was highlighted by the courts below, is of no consequence, since the boundary descriptions and other features are sufficient to clearly identify the property covered by the bequest in favour of Gouri Amma Bhavani Amma.
50. In the light of the finding that the restriction on alienation imposed by Ext.B1 partition is void under law and it can be ignored, the contention of respondents that the property was used for some religious purposes cannot be upheld for the simple reason that they have no right to claim it as common property. Admittedly, by Ext.B1 partition deed and by subsequent partition deeds, item No.37 in Ext.B1 or portions thereof were set apart to various sharers in absolute right. Therefore, the respective allottees derived title to the property in exclusion of others. Commonality of rights over the disputed property set up by the respondents cannot be SA Nos. 237 and 239 of 1998. 39 accepted.
51. Respondents' claim of right to perform rituals in the property, like "paravaippu" and "thalapoli" in connection with a temple festival also cannot be accepted. Right to perform such rituals cannot be discerned from Ext.B1. Actually, the recitals in Ext.B1 speak about cremating the dead, which could not have any relation to a temple festival, especially at a time when the document was executed.
52. Moreover, such a right to perform rituals could have been claimed only as a customary right. That could have been claimed only in derogation of the terms in Ext.B1. It is trite that a right originating from a custom must be specifically pleaded and proved. There is absolutely no pleading of a customary right in that regard. Hence, the claim of right to property to perform rituals cannot be legally recognized.
53. Courts below wrongly approached the issues and dismissed the suit filed by the appellant and decreed the other suit against him based on aspects which were not really germane for consideration. I am of the definite view that the findings of the courts below are legally incorrect and hence liable to be reversed.
54. The substantial questions of law framed above are decided in favour of the appellant.
In the result, the appeals are allowed. The decrees and SA Nos. 237 and 239 of 1998. 40 judgments of the courts below are set aside. O.S.No.538 of 1986 on the file of the Munsiff's Court, Cherthala is decreed. Respondents/defendants and their men are restrained by a permanent prohibitory injunction from obstructing the appellant from proceeding with construction of a building in the plaint schedule property or in any manner interfering with the peaceful enjoyment and possession of the plaint schedule property by him. O.S.No.842 of 1986 is dismissed. Considering the relationship between the parties, they are directed to suffer the costs.
All pending interlocutory applications will stand closed.
A. HARIPRASAD, JUDGE.
cks SA Nos. 237 and 239 of 1998. 41 A.HARIPRASAD, J.
S.A.Nos.237 and 239 of 1998 COMMON JUDGMENT 10th January, 2018