JUDGMENT
S.S. Subramani, J.
1. Defendant in O.S.No.88 of 1978, on the file of District Munsif, Kallakurichi, is the appellant. The respondent herein as plaintiff filed the suit for partition and separate possession of plaint schedule two items. In this appeal we are only concerned with item No. 1 of the plaint schedule.
2. The plaintiff and defendant are brothers, and in a partition deed evidenced by Ex.A-1, the plaintiff alleges that plaint item No. 1 was allotted to him exclusively. The defendant who is his elder brother trespassed into the property and began to appropriate the income. Therefore, the plaintiff issued a notice under Ex.A-2, dated 16.2.1973, for which the appellant sent a reply on 1.3.1973, alleging that plaint item No. 1 is allotted towards his share, and he is enjoying the same as its owner. It is further stated in the plaint that plaint item No. 1 seems to have allotted and included in both the schedule of plaintiff and defendant, and therefore, he will be satisfied, if he is allotted half share over the said item.
3. The appellant contended that as per the allotment in Ex.A-1, he is the absolute owner of the plaint schedule properties. The plaintiff is also award that he is the owner and the suit was barred by limitation.
4. The trial court after considering the evidence adduced before it, came to the conclusion that in regard to item No. 1 of the plaint schedule property, the plaintiff has no claim and regarding item No. 2, a preliminary decree was passed. The trial court held that the plaintiff himself was a Tahsildar for the very same village, where the plaint schedule property is situate and he himself passed an order to change the name of the defendant as pattadar in respect of plaint item No. 1, and the appellant is paying the tax on the basis of patta issued in his favour by his brother, the plaintiff. The allegation of trespass was found against the plaintiff and it was further found that the defendant was all along in possession on the basis of Ex.A-1. It held that on the basis of Ex.A-1, plaintiff cannot claim half share over item No. 1 of the schedule and dismissed the suit in respect of that item of property.
5. Aggrieved by the judgment, the plaintiff preferred A.S.No. 150 of 1981, on the file of Subordinate Judge at Vridhachalam. The lower appellate court reversed the finding and held that the plaintiff is entitled to half share. The only reason stated in the Judgment of the lower appellate court is that the item No. 1 of the plaint schedule is included in both the schedules plaintiff and defendant in both the schedules plaintiff and defendant and therefore, both persons have equal right over the same. The decision of the lower appellate court is challenged in this second appeal, on the following substantial question of law:
Whether on the facts of the case the plaintiff was estopped from putting forward any claim to the first item in view of Ex.B-3?
6. Before considering the rival arguments, let us consider what is the pleading in this case. In paragraph 4 of the plaint, it is stated thus:
Suit item 1 is the land in R.S.13/1 in Udhayamambattu Village. At the time of negotiations, this item was allotted to the share of the plaintiff. But the defendant is in unlawful possession and enjoyment of the same, taking advantage of the plaintiff’s absence from the village on duty. The plaintiff therefore issued a notice to the defendant on 16.2.1973 calling upon the defendant to deliver possession of suit item 1. The defendant has chosen to give a reply dated 19.3.1973 containing false allegations.
In paragraph 5 of the plaint it is stated:
On the perusal of the partition deed, it is found that suit item I has been included by oversight or inadvertence to the share of both the plaintiff and the defendant. Though it was decided and agreed upon by the parties that the item shall belong to the plaintiff, in view of the inclusion of that item in the schedule of properties given both to the plaintiff and to the defendant, the plaintiff restricts his claim to only a half share in suit item 1, in equity.
In the written statement on the appellant, it is stated in paragraph 2 thus:
It was allotted only to this defendant and so this defendant has been in possession of suit item 1 ever since the partition arrangement. By mistake of the scribe, the said item has been included in both schedules. It has not been noticed by any one till 1973, when the plaintiff has found out the mistake and issued notice on account of some subsequent enmity between plaintiff and this defendant.
7. From the above pleadings, it is clear that both parties admit that there is a mistake in the allotment. From the respective pleadings it is clear that the intention of the parties was to allot this item either to the plaintiff or the defendant. There is no intention at all to include this property in both the schedules of plaintiff and defendant. It is also clear from the allotment in the partition that the properties allotted to the parties to the partition deed were described separately and separate schedules were also written, and from the above circumstances, it is further clear that it was never intended by the parties that plaint item No. 1 must be divided equally. If that is the admitted case of both the parties, merely because it is included in both the schedules, can the decree of the lower appellate court be sustained, giving equal share in plaint item No. 1. According to me, the approach of the lower appellate court is not correct. If the intention of the parties was to allow plaint item No. 1 either to plaintiff or to defendant and when that case was admitted by both sides, the court cannot grant equal share to the brothers. In such cases, the plaintiff will have to prove that the said item was intended to be allotted towards his share. In that attempt, the plaintiff has miserably failed.
8. When there is an apparent mistake in the allotment, naturally the court will have to take into consideration what was the intention of the parties. The document by itself does not give any light in that regard. Naturally, the court will have to take into consideration that surrounding circumstances. Ex.A-2 is a notice issued by the plaintiff in the year 1973. The partition was in the year 1967. It was six years after the partition, the notice was issued. It is seen from Ex.A-2, that the relationship between the parties was never cordial. In fact Ex.A-1 partition deed also makes reference to the bad relationship between the parties, it states that since they are not having a good relation, due to intervention of punctuators, this partition is effected. It could be seen further from Ex.A-2, that litigations were pending between at least from the year 1968. Plaintiff is the Tahsildar. He knows, how kist is to be paid. It is also not disputed that except those items, in regard to all the other items, he has effected patta in his name and also paying the kists. Naturally, at least from 1967, he knew that the defendant is making use of the property. On 6.10.1974, while the plaintiff himself was the Tahsildar, he issued patta book to the defendant, and from that date onwards the defendant is paying kist for the property. If in fact the plaintiff knew that he is the owner, he could have atleast made an attempt to pay the kist. Till 1973, the date of suit, no payment was made by the plaintiff. From 1967 to 1973, no attempt was made by the plaintiff to enjoy the property. In 1973, he issued a notice that the property belongs to him absolutely, and therefore, the defendant must surrender the same with mesne profit. He also referred to three or four suits pending between the parties, and wanted the costs or expenditure incurred to be realised from the defendant. At that time, he did not have a case of mistake. Immediately, the defendant wrote back under Ex.A-3, that the property belonged to him and was included in his schedule. Till 1978, the plaintiff did not take any steps to have the document corrected. If as between the plaintiff and defendant, there was co-ownership there cannot be any question of partition.
9. Item No. 1 of the plaint schedule was allotted to the elder brother of the plaintiff i.e., to the defendant. Naturally when the allotment comes to the plaintiff, it can only be excluded. Unless the plaintiff shows that the parties intended to allot the property towards his share or the parties wanted that the must be given half share. I do not think that the plaintiff is entitled to partition in respect of item No. 1 of the plaint schedule as claimed. By mistake in allotment, there cannot be any co-ownership. As I said earlier, the property must belong either to the plaintiff or to the defendant and there cannot be any co-ownership between the parties as now alleged by the plaintiff.
10. Even for interpreting a document, though subsequent conduct is not considered as relevant, in certain circumstances, how the property is dealt with is taken as a piece of evidence. The user of the property immediately after the transaction is a relevant circumstances in construing the intention of the parties. In Odgers’ Construction of Deeds and Statutes, Fifth Edition 1996, at pages 120 and 121, the learned another says thus:
Although user by the parties cannot affect the construction of an unambiguous document, the case is different with an ambiguous document. In such a case evidence of user under it to show the sense in which the parties construed the language employed is admissible and also acts of sue before the transaction effected by the document. These previous acts lead upto and explain what was afterwards granted and are cogent evidence of what was intended to pass by the grant. ‘When the obvious intention is to give a title to what has been so taken and retained before the actual grant, it is manifest that what has been so taken and retained is cogent evidence of what is granted.’
In case of partnership, evidence is admissible to prove a departure either by express or implied consent of the partners from the provisions of the partnership deed. The evidence is not admitted to construe the written agreement but to prove that the partners have agreed to abandon certain of the written provisions and substitute the other either by express words or by conduct. As Lords Langdable M.R. said in England v. Curling, (1844)8 Beav.129 at 133:
With respect to a partnership agreement, it is to be observed that, all parties being competent to act as they please, they may put an end to or vary it at any moment; a partnership agreement is therefore open to variation from day to day and the terms of such variations may not only be evidenced in writing, but also by the conduct of the parties in relation to the agreement and to their mode of conducting their business.
11. In this case, from 1967 till 1978, when the suit was filed, the defendant continues in possession. Even though an attempt was made in 1973, to take possession, the defendant in his reply denied the claim of the plaintiff. The immediate user of the property on the basis of Ex.A-1 is a circumstance to show that the parties intended that item No. 1 of suit schedule must be allotted to the defendant only. At any relate, the allotment will never show an admission by the parties themselves, that there was an intention to divide the said property equally. The mistake in the schedule is now attempted to be exploited by the plaintiff. Even when the plaintiff deposes as P.W.1, he does not say that the intention of the parties was to divide the property into equal share. His case is that the entire property is allotted to him, but by mistake the property is included in the defendant’s share also, and therefore, he may have the right of half share. That case of the plaintiff is not accepted by the lower appellate court also. The lower appellate court only holds that because the said property is included in the schedules of both the plaintiff and defendant, each will be entitled to half share over the said property. That approach of the lower appellate court is not legal.
12. In the result, I am constrained to set aside the judgment of the lower appellate court and the Second Appeal is allowed. The preliminary decree passed by the trial court shall stand confirmed, i.e., there will be a preliminary decree in regard to item No. 2 of the plaint schedule property only and in regard to item No. 1 of the plaint schedule, the suit is dismissed. There will be no order as to costs in the Second Appeal.