Kerala High Court
Muslim Educational Society And Ors. vs K.A. Paryaryi And Ors. on 1 August, 1986
Equivalent citations: AIR1987KER80, AIR 1987 KERALA 80, (1986) KER LJ 776 (1986) KER LT 1165, (1986) KER LT 1165
Bench: K.S. Paripoornan, K.T. Thomas
JUDGMENT Thomas, J.
1. A Philanthropist by name Kunhammed Haji, made a gift of his land to a registered society in the year 1970. But after his death the subject matter of the gift unfortunately became the subject-matter in two litigations including the present one, though the extent of the land is only 20.75 cents. The donee is the Muslim Educational Society which is popularly known by the initial letters of its three words -- M.E.S.
2. As per Ext. A1 gift deed, the donor Kunhammed Haji donated the suit property in favour of the 1st defendant (M.E.S.). A building was constructed on the said land wherein a hospital was housed for some time. When the society found it difficult to pull on with the hospital due to variety of causes, its office -- bearers resolved to use the building for accommodating another institution by name "Industrial Training Centre", which hitherto was functioning in a distant place (Kuttiadi). At that stage one T.K. Paryaryi who is a close relative of the donor, filed a suit in the Sub Court, Badagara as O.S. No. 95 of 1982 to restrain the Society from using the building for any purpose other than running a hospital. But the said suit happened to be dismissed in 1982 itself.
Thereafter the respondents herein instituted the present suit after obtaining leave under Section 92 of the Code of Civil Procedure. The 1st plaintiff is said to be the grandson of the donor Kunhammed Haji and the other plaintiffs are residents of the village where the property is situated. The main relief sought for in the suit is a declaration that the 1st defendant has a legal duty to use the suit property to run a hospital by name "Thaikandiyil Aniyapravan Kunhammed Haji Hospital" and the ancillary relief is to restrain the 1st defendant by a perpetual injunction from using the suit property for any other purpose.
3. The plaintiffs case in the plaint, in brief, is that by Ext. A1 gift deed a trust has been created for the sole object of establishing and running a hospital as a charitable institution, and that the society did start such an institution, but later they abondoned it and now they propose to start another institution in the building situated in the suit property.
According to the plaintiffs, the society has no authority to change the purpose for which the trust itself was created. The defendants, in their joint written statement, contended that no trust has been created by Ext. A1, and that the society in fact started a hospital in the suit property but the hospital had to be closed down due to various odds, and the building eventually became a rendezvous for antisocial elements of the locality, and so another institution (The Industrial Training Centre) run by the society at Kuttiadi was shifted to this building.
4. The court below found that Ext. A1 created a trust and that the predominant object in executing Ext. A1 gift deed was to establish and run a hospital therein. The 1st defendant was found to be the trustee and the plaintiffs, the beneficiaries of the trust. On the strength of the aforesaid findings, a decree was granted by the court below in favour of the plaintiffs. Aggrieved by the said decree the defendants have come up in appeal.
5. Shri T.L. Viswanatha Iyer, learned counsel for the appellants contended that Ext. A1 is a gift deed pure and simple and it did not create any trust, private or public, since no obligation has been annexed to the ownership of the suit property. The further contention is that even assuming that a trust has been created by the instrument, the object of the trust is not confined to establishment or administration of a hospital. According to the learned counsel, the terms of Ext. A1 do not in any way inhibit the society from using the property for other charitable purposes. Shri P.G.K. Wariyer, learned counsel for the respondents forcefully contended that it is evident from the terms recited in Ext. A1 that a trust has been created for the sole object of running a hospital in the suit property.
6. We will proceed on the assumption that a trust has in fact been created by Ext. A1. The real dispute involved in this case is whether the donee is bound to use the property for the exclusive and singular purpose of running a hospital therein. The question whether the gift deed did create a trust need be considered only if the former question is answered in the affirmative. In deciding the said crucial issue involved in this case, it is necessary to make a close scrutiny of the terms of Ext. A1. Ext. A1 gift deed, after leaving out the prefatory and appendix portions which are not necessary for this case, can be vivisected into three segments for convenience in construing the document. The first is the preambulatory portion in which the donor, after tracing his title to the property, refers to his desire or resolve, to donate a piece of land to the society for putting up a hospital building, which prompted the donor to execute a gift deed. The next portion deals with the operative part of the deed wherein the donor states that the ownership of the land, the market price of which was estimated to be Rs. 1000/- is transferred to the society for the purpose of using it for public charitable needs. It is further stated in the same portion that all the rights and interest of the donor in the property have been transferred to the society together with the possession thereof and the donee is made to believe that the donor thereafter shall have no right or interest whatsoever in the property donated. The donee is informed that land tax or such other dues in respect of the land can be paid by him and that he may choose, in his discretion, to attorn to the jenmy of the land. In the third and the concluding portion mention is made about handing over of the certified copies of the prior title deeds etc. It is important to note that no condition is imposed in the operative portion of the deed that the land shall be used for running a hospital.
7. Shri P.G.K. Wariyar, the learned counsel for the respondents (plaintiffs) contended that the intention of the parties can be gathered not only from the document but from other attending circumstances, and also the pleadings in the case. The defendants, in their written statement, stated that when the society resolved to start a medical centre at Naripatta, its office bearers approached the donor for a small piece of land and then the donor consented to grant the vacant land pursuant to which the gift deed was executed.
8. The intention of the parties to an instrument, gathered from outside the document may be a useful guideline in the construction of ambiguous terms of the instrument. But when the deed itself is clear enough in showing the true scope and contour of the transaction, intention of the parties, even if discernible from evidence, shall not whittle down or enlarge the amplitude of the express stipulations made in the document. The test is what a reasonable man would reasonably understand from the terms recited in the document. Devlin, L.J. in Davies v. Elsby Brothers Ltd., (1961) 1 WLR 170 at page 178, laid stress on the aforesaid principle. His observation reads thus ;
"It is a general principle of English Law, not merely applicable to cases of misnomer that the intention which the framer of the document has in mind when he brings it into existence is not material. In that we differ from many continental systems. In English law as a general principle the question is not what the writer of the document intended or meant but what a reasonable man reading the document would understand it to mean".
The above passage was quoted with approval by Raman Nayar, J. (as he then was) in Hussain Thangal v. Ali, 1961 Ker LT 1033. In this context we consider it apposite to refer to the observations made by one of us (Paripoornan, J.) in Narayani Amma v. Narayanan Namboodiri, 1985 Ker LJ 49 at p. 52.
"It is a well-settled principle of interpretation, that in interpreting a deed, the question is not what the parties to the deed may have intended to do by entering into that deed, but what is the meaning of the words used in the deed. The court can understand the true intent of the deed only by the words used in the deed. It does not matter what the parties, in their inmost states of mind, thought, the terms meant. They may have meant different things, but still the terms or the language used in the deed should bind them. It is for the court to interpret such terms or language used in the deed".
According to us, the law has been correctly stated in the above observations.
9. The recitals in the operative portion of Ext. A1 do not admit of any ambiguity. It is explicit therefrom that the gift made is subject only to one condition, that the property shall be used for public charitable needs. Thus the operative portion of the instrument is significantly silent about the establishment and running of a hospital. On the other hand a wider scope is indicated therein that the land can be utilised for any purpose of a public charitable need.
10. The counsel for the respondents made a forceful plea based on the preambulatory portion of the deed which, according to him, indicates the mind of the donor that he resolved or desired to have a hospital building put up on this land. Had there been any ambiguity in the operative portion of the deed, resort to its preamble would have been advisable in order to bring about a construction consistent with the preamble. But such a course is unnecessary in the case of Ext. A1 wherein the recitals are explicit and the terms used in the operative portion are unambiguous. More than a century ago, the Privy Council had emphasised the need to give predominance to the operative part of a document over the rest of the recitals. In the words of Sir R. P. Collier in Marcar v Sigg, (1878-80) ILR 2 Mad 239 (PC) "the construction of an ambiguous stipulation in a deed may be governed or qualified by a recital, but on the other hand if the intention of the parties is to be collected from the operative part of the instrument, that intention is not to be defeated or controlled by the other recitals". Years later the same principle had been reiterated by the Privy Council in Beli Ram & Bros. v. Mohd. Afzal, AIR 1948 PC 168 Sir John Beaumont in that decision said :
"The operative part of a deed cannot be controlled by recitals in the preamble if the operative words are clear".
The Privy Council was considering a wakf deed. In the preamble of that deed the intention of the wakif regarding the appropriation of the income of the wakf property was stated. But the operative clause in the deed contained stipulations regarding the distribution of the shares. It was held in that case that the operative clause controlled the recitals in the preamble. We apply the same standard for the construction of Ext. A1, and we have no hesitation to hold that as the operative portion contains clear recitals as to the manner in which the gifted property should be utilised, there is no need to take any indication from the preamble portion.
11. The upshot of the above discussion is that M.E.S. cannot be directed to confine the use of the suit property to the running of a hospital. We hold that the society is free to make use of the suit property for any charitable purpose. In view of this conclusion, we find that the Court below was in error in passing the decree, which is under attack in this appeal. We therefore allow this appeal and set aside the decree and judgment of the court below and dismiss the suit. However, we direct the parties to suffer their respective costs.