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Kochuthressia Joseph vs Sebastian Alias Devassy, S/O … on 14 August, 2003

Kerala High Court
Kochuthressia Joseph vs Sebastian Alias Devassy, S/O … on 14 August, 2003
Author: A Lekshmikutty
Bench: A Lekshmikutty


JUDGMENT

A. Lekshmikutty, J.

1. The parties in both these appeals are the same. S.A. No. 619 of 1993 is filed against the judgment and decree in A.S. No. 118 1988 on the file of the Sub Court, North Paravur which is preferred against the judgment and decree in O.S. No. 466 of 1985 on the file of the Munsiff’s Court, North Paravur. S.A. No. 632 of 1993 is filed against the judgment and decree in A.S. No. 43 of 1988 on the Sub Court, North Paravur which is preferred against the judgment and decree in in O.S. No. 426 of 1985 on the file of the Munsiff’s Court, North Paravur.

2. For the sake of the convenience, the appellant can be referred as the plaintiff and the respondents can be referred as the defendants. The plaintiff filed O.S. No. 466 of 1985 for recovery of possession with mesne profits. The case of the plaintiff is that the plaint schedule property and 40 cents lying adjacent to it are the properties mentioned in the settlement deed executed by the parents of plaintiff and defendants in the year 1959. At the time of execution of the settlement deed, the plaintiff has not been married. The property having an extent of 60 cents was set apart to the share of plaintiff. It is stated in the settlement deed that the marriage of the plaintiff should be conducted by her father during his life time and in case he could not conduct the marriage, the marriage should be conducted by the mother. It is further stated that in the settlement deed that after the death of the parents, the property would vest with the plaintiff. In connection with the marriage of the plaintiff, her father sold 40 cents out of 60 cents. The plaintiff’s father died on 18.7.1968 and mother died on 18.7.1984. After their death, the plaintiff has become the absolute owner of the plaintiff schedule property. The defendants are now in the possession of the plaint schedule property. When the plaintiff had requested for surrender of possession, they filed O.S. No. 426 of 1985 for declaration and injunction.

3. The contention of the defendant is that he are entitled to get the sale deed executed in respect of the plaint schedule property. Since the plaint schedule property did not belong to the plaintiff, she is not entitled to recover possession on the strength of title with mesne profits. The plaintiff has no right over the property. He admits the execution of settlement deed by the parents in the year 1959. As per the settlement deed, the mother is entitled to take income from the property allotted to the share of Elsey, Seleena, Karmaly and George. The persons mentioned above are bound to execute sale deed in respect of the properties allotted to them in case any of the sons of deceased Ousephunni offers to pay at the rate of Rs. 20/- per cent. At the time of execution of the settlement deed, the marriage of the plaintiff and Josepheena had not been conducted. So, the property mentioned in F schedule having an extent of 60 cents was allotted to the share of plaintiff. As per the settlement deed, the property allotted to the plaintiff would vest with the plaintiff in case her parents could not conduct her marriage during their life time. But the plaintiff’s marriage was conducted by her father Ousephunni during his life time. In order to met the marriage expenses, Ousephunni had sold 40 cents out of 60 cents in 1964. The balance 20 cents was set apart to the share of plaintiff subject to the provisions under which the properties had been set apart to the other married daughters. So, the provisions contained in the settlement deed in respect of the properties allotted to the married daughters are also applicable to the plaint schedule property. The plaintiff is bound to execute the sale deed in favour of any of the sons of deceased Ousephunni. In spite of repeated requests made to the plaintiff, she has not executed the sale deed. So, the defendant as plaintiff filed O.S. 426 of 1985. As per the provisions contained in the settlement deed, the defendants are in possession of the plaint schedule property and have right to retain possession of the plaint schedule property. The plaintiff is bound to execute the sale deed in favour of the defendants after receiving the sale consideration mentioned in Ext. A1. She is not entitled to recover possession of the plaint schedule property from the defendants. The mesne profits claimed is excessive.

4. On the basis of the pleadings, the trial court raised 3 issues. Exts. A1, A2 and B1 were marked. The trial court decreed O.S. No. 466 of 1985, against which the defendants filed A.S. No. 118 of 1988 before the Principal Sub Court, North Paravur. The appellate court set aside the judgment and decree of the trial court and allowed the appeal. Against the judgment and decree in O.S. No. 466 of 1985, the defendants filed A.S. No. 43 of 1988 and the appellate court modified the judgment declaring the defendant’s right to get the sale deed executed in respect of the B schedule property and the first defendant is directed to deposit the sale consideration of Rs. 400/- with notice to the plaintiff within one month from the date of judgment, against which these two appeals are filed by the plaintiff. The substantial questions of law formulated in the Second Appeals are:

(a) Whether Ext. A1 impose a legally enforceable obligation on the plaintiff to transfer the plaint schedule property to the respondents?

(b) Whether the condition for transfer to a son of the settlers on tender of the price at the rate of Rs. 20/- per cent and other attendant stipulation legally valid and enforceable against the plaintiff in view of Sections 10 and 11 of the Transfer of Property Act and Specific Relief Act?

5. Both these appeals can be considered together since the questions involved in these cases are same.

6. The points.- The plaintiff filed the suit for recovery of possession with mesne profits. Admittedly, the property originally belonged to the father of the plaintiff and defendants Ousephunni. Ext. A1 is the settlement deed executed by Ousephunni and others in favour of Joseph and others. The plaintiff claim right over the property as per Exts. A1 and A2. The plaint schedule property forms part of 60 cents mentioned in Ext. A1. The defendants are brothers of the plaintiff and Ousephunni is the father of plaintiff and defendants. The execution of Ext. A1 on 19.2.1959 is admitted by both parties. As per Ext. A1 “F” schedule was allotted to the share of plaintiff and G schedule was allotted to one Josepheena. Kochuthresia the plaintiff and Josepheena her sister were unmarried on the date of execution of Ext. A1. The property mentioned as H to K were allotted to Elsy, Seleena, Karmall and George respectively. There is a provision in Ext. A1 that the above mentioned persons viz; Elsy, Seleena, Karmali and George should execute the assignment deed in respect of H to K schedule in favour of any of the sons of deceased Ousephunni in case they offered to pay Rs. 20/- per cent. “F” schedule was allotted to the plaintiff. For meeting the marriage expenses of the plaintiff, 40 cents out of 60 cents was assigned in favour of the plaintiff’s mother as per Ext. A2 dated 19.2.1964. The contention of the first defendant is that as per the provisions in Ext. A1, the plaintiff is bound to execute the document in his favour after receiving a consideration of Rs. 20/- per cent towards sale consideration as stated in Ext. A1. Since the plaintiff refused to execute the document, the defendants filed O.S. No. 426 of 1985. According to the plaintiff, she has no obligation to execute the sale deed in respect of the plaint schedule property in favour of the first defendant. The defendant requires to execute the sale deed in his favour in pursuance of the provisions in Ext. A1. But the stipulation stated in Ext. A1 is only in respect of H to K schedule. “F” schedule was allotted to the plaintiff since her marriage was not taken place. As per Ext. A1, if the marriage of the plaintiff could not be conducted by her father during his life time, it is to be conducted by her mother. But it has come out in evidence that the marriage was conducted by the father during his life time by disposing 40 cents of property out of 60 cents. The condition stipulated in F schedule is that if the marriage of the plaintiff was not conducted during the life time of the parents, the plaintiff would become the absolute owner of the property after the death of the parents. But the contention of the defendants is that since the marriage was conducted by the father during his life time by disposing 40 cents, the remaining 20 cents stands in the name of the plaintiff. It is specifically stated in Ext. A2, that the stipulation contained in respect of H to K is applicable in respect of the remaining 20 cents. Therefore, the plaintiff is bound to execute a sale deed in respect of the plaint schedule property in favour of any of the son who offers to pay the consideration stated in Ext. A1. As per Ext. A2, the balance 20 cents has been set apart to the share of the plaintiff. Ext. A2 sale deed is in favour of the mother of the plaintiff and defendants. What is stated in Ext. A2 is that:

In the schedule also, it has been stated that out of 60 cents, 20 cents was set apart to the plaintiff. With regard to the “F” schedule, no condition was imposed by the executant of Ext. A1. If deceased Ousephunni had such an intention, there was no difficulty for him to include such a condition in Ext. A2. So, it cannot be found that the condition imposed in respect of H to K schedule will apply to the plaint schedule property also. There is no ambiguity in the document in respect of “F” schedule. As per the decision reported in Narayani Amma v. Narayanan Namoodiri (1985 KLJ 49), it is 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 in most states of mind, thought the terms meant. They may have meant different things but still the terms of the language used in the deed should bind them. It is for the court to interpret such terms or language used in the deed. In Ext. A1 no condition was imposed in respect of F and G schedule.

7. The wording in Ext. A1 would not show that F schedule property also is to be sold to the sons of Ousephunni. So, the contention of the defendant that the property has been left to the plaintiff subject to the condition stipulated to H to K schedule cannot be accepted. The only possible interpretation in respect of F schedule is that it was the absolute property of the plaintiff. As per Ext. A1, the plaintiff has became the absolute owner of the plaint schedule property. It is admitted by the defendants that the only right to the plaintiff is to receive the sale consideration stipulated in Ext. A1 cannot be accepted. Since the plaintiff has become the absolute owner of the plaint schedule property, she is entitled to recover the same from the first defendant on the strength of her title. It has come out in evidence that the plaint schedule property is lying within well defined boundary and there is no difficulty to identify the plaint schedule property from the properties lying on its 4 sides. So, the trial court was rightly decreed the suit filed by the plaintiff. Ext. A1 did not impose any condition to execute sale deed to the first defendant after receiving Rs. 400/-. In such circumstances, the suit filed by the plaintiff for declaration of the right and recovery possession over the property is decreed and the suit filed by the defendants to execute the sale deed in respect of the plaint schedule property to the defendants is dismissed. The judgments and decrees of the first appellate court are set aside and the appeals are allowed. The judgment and decree of the trial court are upheld.

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