{"id":41414,"date":"2008-02-06T00:00:00","date_gmt":"2008-02-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thomas-vs-dr-a-a-henry-on-6-february-2008"},"modified":"2016-07-22T21:25:01","modified_gmt":"2016-07-22T15:55:01","slug":"thomas-vs-dr-a-a-henry-on-6-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thomas-vs-dr-a-a-henry-on-6-february-2008","title":{"rendered":"Thomas vs Dr.A.A.Henry on 6 February, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Thomas vs Dr.A.A.Henry on 6 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS No. 363 of 1993(D)\n\n\n\n1. THOMAS\n                      ...  Petitioner\n\n                        Vs\n\n1. DR.A.A.HENRY\n                       ...       Respondent\n\n                For Petitioner  :SRI.S.EASWARAN\n\n                For Respondent  :SRI.M.C.SEN (SR.)\n\nThe Hon'ble MR. Justice KURIAN JOSEPH\nThe Hon'ble MR. Justice HARUN-UL-RASHID\n\n Dated :06\/02\/2008\n\n O R D E R\n              KURIAN JOSEPH & HARUN-UL-RASHID, JJ.\n\n             ----------------------------------------------------------------\n\n                                A..S. NO.363 OF 1993\n\n             ----------------------------------------------------------------\n\n\n                     Dated this the 6th day of February, 2008.\n\n\n                                     JUDGMENT\n<\/pre>\n
Harun-Ul-Rashid, J.\n<\/p>\n
       This appeal is filed by defendants 2 and 3 in O.S. No.45 of 1990 on<\/p>\n
the file of the II Additional Sub Court, Ernakulam  against the decree and<\/p>\n
judgment dated  19.10.1992.  Respondents 1 to 3 herein as  plaintiffs filed<\/p>\n
the   suit   for   a   decree   for   setting   aside   Exts.A17   and   A18   sale   deeds<\/p>\n
assigning the first defendant’s ownership over the plaint schedule property<\/p>\n
and   conveying   his   rights   therein   to   defendants   2   and   3     and   to   order<\/p>\n
defendants   2   and   3   to   assign   the   right,   title,   interest   and   possession<\/p>\n
obtained by them over the plaint schedule property by the above sale deeds<\/p>\n
to any one of the plaintiffs or to the plaintiffs jointly as required by them<\/p>\n
by executing a registered document and pay the plaintiffs the rent due and<\/p>\n
received   from   the   shop   rooms   by   defendants   2   and   3   with   12%   future<\/p>\n
interest , failing which to allow the plaintiffs to deposit the consideration<\/p>\n
in   court   and   get   the   document   of   assignment   executed   in   their   favour<\/p>\n
through court, for recovery of   possession of the plaint schedule property<\/p>\n
A.S. NO.363\/1993                                  2<\/span><\/p>\n
and for other ancillary reliefs.\n<\/p>\n
        2.     By   the   judgment   under   appeal,   the   court   below   set   aside<\/p>\n
Exts.A17   and   A18   sale   deeds   and   decreed     the   suit.       By   the   decree,<\/p>\n
defendants 1 to 3 were directed to reconvey the plaint schedule properties<\/p>\n
to   the   plaintiffs   or   to   any   one   of   them   as   required   by   the   plaintiffs   by<\/p>\n
executing a registered  document at the expense of the plaintiffs on receipt<\/p>\n
of  consideration  of  Rs.1,20,000\/-.    It  was   also  ordered  that  the   plaintiffs<\/p>\n
will be entitled to the rent  received by defendants 2 and 3 from the shop<\/p>\n
rooms   with   future   interest   at   the   rate   of   6%   per   annum   till   realization,<\/p>\n
excluding the building taxes paid from 13.12.1989, from defendants 1 to 3<\/p>\n
and from their assets.  It was further directed that if defendants 1 to 3 fail<\/p>\n
to comply with the above directions within three months from the date of<\/p>\n
the decree, the plaintiffs will be allowed to get the document of assignment<\/p>\n
executed   in   their   favour   or   in   favour   of   any   one   of   them   and   will   be<\/p>\n
allowed to recover possession of the property through court.  The plaintiffs<\/p>\n
were also allowed to realize the costs of the suit from defendants 1 to 5 and<\/p>\n
the 6th defendant was entitled to realise costs from the plaintiffs.\n<\/p>\n
        3.   Parties to this appeal are referred to as plaintiffs and defendants<\/p>\n
as   in   the   suit   for   the   sake   of   convenience.         The   facts   necessary   for<\/p>\n
A.S. NO.363\/1993                                   3<\/span><\/p>\n
disposal   of   this   appeal   in   brief   as   per   the   pleadings   in   this   case     are   as<\/p>\n
follows:\n<\/p>\n
Plaintiffs 1 and 2 and the late husband of the third plaintiff and defendants<\/p>\n
1, 4 and 5 are brothers.  They are the owners of a complex of shop rooms<\/p>\n
commonly   known   as   ‘Anand   Bazar’.   At   the   time   of   purchase   of   the<\/p>\n
property with the buildings thereon in the year 1972 by the owners, it was<\/p>\n
constructed   as   a   line   of   shop   rooms   on   the   east,   west   and   north<\/p>\n
interconnected   with   common   urinal   and   four   godowns   on   the   northern<\/p>\n
extremity on the east and west with a garden in between the shop rooms, in<\/p>\n
the middle.   After purchase of the property, the owners constructed a three<\/p>\n
storied   building in the open space provided as garden, extending over to<\/p>\n
the   existing     shop   rooms   on   the   three   sides.     There   were   passages   for<\/p>\n
ingress  and   egress   from  the   main   road  on   either   side   of   the  shop  rooms<\/p>\n
and   the   ground   floor   was   kept     as   car   parking   area.     Various   facilities<\/p>\n
including   urinals,   stair   cases,   passage,   veranda,   water   and   electric<\/p>\n
connections  were  all  common.     According  to  the  plaintiffs,  six  brothers<\/p>\n
who  are  the  owners    of  the  entire  property wished  and  intended  that  the<\/p>\n
entire   property   as   constructed   and   existed     should   be   continued   to   be<\/p>\n
owned   by   them   and   their   successors   only,   that   the   situation   of   the<\/p>\n
buildings,   the   lie   of   the   property   and   the   constructions   made     were<\/p>\n
intended for common use and that any portion or part thereof should not go<\/p>\n
A.S. NO.363\/1993                                 4<\/span><\/p>\n
to an outsider since such an eventuality will disturb the common purpose<\/p>\n
and the common utility of the premises.   It was averred in the plaint that to<\/p>\n
fulfill   the   wishes   and   intention   as   mentioned   above,   the   six   brothers<\/p>\n
entered   into   a   registered   agreement   on   24.2.1998   and   that     since   the<\/p>\n
owners desired that the   property and the buildings should  be retained as<\/p>\n
common,      the   parties   mutually  agreed   that   individual   owners   shall    not<\/p>\n
alienate,   assign   or   mortgage       or   create   liability   over   his   share   of   the<\/p>\n
property to third parties.   It was further agreed that in the contingency of<\/p>\n
an   owner’s   financial   difficulties   requiring   and   necessitating   sale   of   his<\/p>\n
share or portion of his building and property, he shall  sell the same to any<\/p>\n
one of the other owners who is prepared to take the assignment and not to<\/p>\n
an   outsider.     Mediation   was   also   provided   to   fix   the   value   in   case   of   a<\/p>\n
dispute about  the  value of the portion intended to  be sold   and that such<\/p>\n
value   was   to   be   accepted   as   final     by   all   concerned.       Alienation   to   an<\/p>\n
outsider or any one other than the six brothers was absolutely prohibited.\n<\/p>\n
The father of defendants 2 and 3 was one of the tenants of the shop rooms<\/p>\n
and the said shop room was let out to him by the first defendant who is the<\/p>\n
owner of two shop rooms on the ground floor of ‘Anand Bazar’.  There was<\/p>\n
a litigation between the said tenant and the landlord which is described in<\/p>\n
paragraph   4   of   the   plaint.       According   to   the   plaintiffs,   the   father   of<\/p>\n
defendants 2 and 3 was illdisposed towards the plaintiffs and was waiting<\/p>\n
A.S. NO.363\/1993                               5<\/span><\/p>\n
for an opportunity to retaliate.  The said tenant,  according to the plaintiffs,<\/p>\n
made use of the differences between the owners to bargain for a deal for<\/p>\n
the   first   defendant’s   share   in   the   two   shop   rooms   which   were   offered   to<\/p>\n
him by sale.        It  was  further  alleged  by the  plaintiffs   that  they  came to<\/p>\n
know   about   the   secret   negotiation   for  alienation     of  the   first   defendant’s<\/p>\n
share  and intimated the illegality of such a transaction to the 6th defendant<\/p>\n
and requested  him by letter dated 8.11.1989  to  refuse  registration  of any<\/p>\n
document  which  was  contrary to  the agreement entered  into  between  the<\/p>\n
parties.     The   request   was   acknowledged   by     the   6th  defendant   on<\/p>\n
10.11.1989.     According   to   the   plaintiffs   by   a   communication   dated<\/p>\n
29.11.1989 which was   posted after 13.12.1989 and received by them on<\/p>\n
16.12.1989,     their request was rejected and they were directed to initiate<\/p>\n
legal proceedings for the relief sought for.    It was further averred by the<\/p>\n
plaintiffs that they later found that contrary to the terms and conditions of<\/p>\n
the   registered   agreement,   two   assignment   deeds   were   registered   in   the<\/p>\n
office   of   the   6th  defendant   on   13.1.2.1989   and   that   the   consideration   in<\/p>\n
each assignment deed was Rs.60,000\/- totalling to a sum of Rs.1,20,000\/-.\n<\/p>\n
The plaintiffs further alleged that the first defendant acted  contrary to the<\/p>\n
terms of the agreement and that defendants 2 and 3 took assignment of the<\/p>\n
property knowing  and  conscious  of the  terms  of the  agreement   between<\/p>\n
the owners and also about the illegality of the transaction.     They further<\/p>\n
A.S. NO.363\/1993                                  6<\/span><\/p>\n
pleaded   that   they   were   prepared   ,   individually   or   collectively,   to   take<\/p>\n
assignment   of   the   rights   of   the   plaint   schedule   property   for   the   value<\/p>\n
mentioned   in   the   documents.     According   to   them,   the     documents   are<\/p>\n
vitiated by the provisions of the agreement between the parties  registered<\/p>\n
as document No.1396\/1978 and hence the two sale deeds are liable to be<\/p>\n
set aside and that defendants  1 to 3 are bound and liable to reconvey the<\/p>\n
plaint schedule property  to the plaintiffs as prayed for in the plaint.\n<\/p>\n
        4.   The first defendant filed a written statement, defendants 2 and 3<\/p>\n
filed   a   joint   written   statement,   the   4th  defendant   filed   only   a   statement<\/p>\n
adopting   the   contentions   taken   up   by   the   other   defendants.     The   5th<\/p>\n
defendant   filed   a   statement   to   the   effect   that   he   is   not   interested   in   the<\/p>\n
subject   matter   of   the   suit   and   the   6th  defendant   filed     a   separate   written<\/p>\n
statement. The defendants contended inter alia that plaintiffs 1 and 2, the<\/p>\n
husband of the third plaintiff and defendants 1, 4 and 5purchased different<\/p>\n
portions   of   Anand   Bazar   in   1972   by   separate   sale   deeds,   that   they   were<\/p>\n
enjoying   the   said   property   separately   by   collecting   rent   independently.\n<\/p>\n
They further contended that in 1978 the respective owners of the property<\/p>\n
started  construction of the first floor on their respective building and that<\/p>\n
the   first   plaintiff   and   the   5th  defendant   constructed   an   independent   three<\/p>\n
storied building  in  their  vacant  land  with  access  to the first floor  of   the<\/p>\n
A.S. NO.363\/1993                               7<\/span><\/p>\n
building.   They also contended that the averment in the plaint that separate<\/p>\n
portions   were   constructed     with   common   fund   was   false   and   that<\/p>\n
construction was started with individual funds and that towards the end of<\/p>\n
the completion, a loan was availed of by the parties.   According to them,<\/p>\n
the primary purpose and intention  of the agreement was for availing of a<\/p>\n
loan and that the other terms and conditions of the agreement   were void,<\/p>\n
illegal and against public policy and were not binding on the parties to the<\/p>\n
agreement.   They also  contended  that the parties  had  no express  will    or<\/p>\n
intention   to   make   such   an   agreement   and   that   the   agreement   was   made<\/p>\n
under pressure and coercion and hence it was not binding   on the parties.\n<\/p>\n
It was also contended that the agreement is in relation to newly constructed<\/p>\n
buildings   and   that   the   existing   ground   floor   is   excluded   therefrom.\n<\/p>\n
According to the defendants, the allegation that the plaintiffs were entitled<\/p>\n
to get the plaint schedule property reconveyed to them cannot be sustained<\/p>\n
and   that   the   assignments   in   favour   of   defendants   2   and   3   are   perfectly<\/p>\n
legal,   valid   and   enforceable.     The   defendants,   therefore,   prayed   for<\/p>\n
dismissal of the suit.\n<\/p>\n
       5.     The   first   plaintiff   was   examined   as   PW.1   and   Exts.A1   to   A26<\/p>\n
were   marked   on   their   side.     The   defendants   examined   DWs.1   to   3   and<\/p>\n
marked Exts.B1 and B2.    DWs.1 and 3 are defendants 1 and 4 in the suit.\n<\/p>\n
A.S. NO.363\/1993                                8<\/span><\/p>\n
The   court   below   framed   six   issues   and   after   trial   found     that   the   5th<\/p>\n
defendant  was a proper and necessary party to the suit and that there is no<\/p>\n
total   restraint   against   alienation   of   the   property   scheduled   in   Ext.A1<\/p>\n
agreement.  The court below also found that clause No.5 of Ext.A1 cannot<\/p>\n
be said to be a restraint on alienation and not against public policy and  hit<\/p>\n
by   Section   23   of   the   Indian   Contract   Act,     that   Ext.A1   also   contains   a<\/p>\n
protection clause against alienation of the plaint schedule properties to an<\/p>\n
outsider other than the parties to Ext.A1, that Exts.A17 and A18 sale deeds<\/p>\n
are  void and contrary to the terms  contained in Ext.A1, that Exts.A17 and<\/p>\n
A18 are liable to be set aside and that the plaintiffs are entitled to  get the<\/p>\n
plaint   schedule   properties     reconveyed   to   them  as   prayed   for.         On   the<\/p>\n
basis   of   the   above   said   findings   ,   the   court   below   decreed   the   suit   as<\/p>\n
prayed for.\n<\/p>\n
        6.    The   questions   which   arose     for   adjudication   in   the   suit       were<\/p>\n
whether Exts.A17 and A18   assignment deeds  are void or vitiated by the<\/p>\n
provisions of Ext.A1 agreement and liable to be set aside and whether the<\/p>\n
plaintiffs   are  entitled   to  get   the   plaint   schedule  properties  reconveyed   to<\/p>\n
them ?\n<\/p>\n
        7.   Plaintiffs 1 and 2   and defendants 1, 4 and 5 are brothers.   The<\/p>\n
A.S. NO.363\/1993                                 9<\/span><\/p>\n
third plaintiff  is the wife of late A.A. Alfred, another  brother.   In the year<\/p>\n
1972, all the brothers by separate sale deeds purchased the shop buildings<\/p>\n
by name Anand  Bazar.    It  is  a  line  of shop  rooms on  the  east,  west  and<\/p>\n
north   interconnected   with   common   urinal   and   four   godowns   on   the<\/p>\n
northern extremity on the east and west with a garden in between the shop<\/p>\n
rooms, in the middle.   Subsequently in the vacant space in the middle set<\/p>\n
apart   as   garden,     a   three   storied     building   was   constructed   by   the   two<\/p>\n
owners and all the brothers started construction of first floor above the line<\/p>\n
of shop buildings.           For the purpose of construction of the first floor, a<\/p>\n
loan was availed of in the names of the 1st  plaintiff and the 5th  defendant<\/p>\n
from the Syndicate Bank and the other brothers stood as surety for the loan<\/p>\n
transaction.\n<\/p>\n
        8.     Though   the   property   stands   in   the   name   of   the   six   brothers<\/p>\n
individually by separate deeds of purchase made in 1972,  the line of shop<\/p>\n
rooms   on   the   first   floor   are   constructed   as   a   single   building   in   the   year<\/p>\n
1978.   The bathroom, urinals, staircases, passages, electric connection etc.<\/p>\n
were common to all   and common enjoyment alone is possible due to the<\/p>\n
lie and situation of these common facilities.   According to the plaintiffs, at<\/p>\n
the time of construction of the first floor of the building, the above aspects<\/p>\n
and   facts   were   discussed   between   the   brothers   and   they   had   decided   to<\/p>\n
A.S. NO.363\/1993                              10<\/span><\/p>\n
determine   and   finalise   their   rights   of   ownership   and   obligation   over   the<\/p>\n
building by Ext.A1 agreement entered into among the parties.   The terms<\/p>\n
of Ext.A1 inter alia provide that the owners desired that the property and<\/p>\n
the building should be retained as common, that individual owners should<\/p>\n
not alienate, assign, mortgage or create liability over their individual share,<\/p>\n
that in a contingency of an owner’s financial difficulties  requiring sale of<\/p>\n
individual share, he should not sell the same to an outsider, but only to any<\/p>\n
one of the other owners prepared to purchase the same.    In case there was<\/p>\n
any dispute about the value of the portion intended to be sold,  mediation<\/p>\n
was provided to fix the value.   Alienation of any portion of the property to<\/p>\n
an outsider was absolutely prohibited.\n<\/p>\n
       9.   Resolution of the dispute between the parties mainly depend on<\/p>\n
the interpretation of the terms of Ext.A1 agreement.  Before analysing the<\/p>\n
meaning   of   the   terms   in   Ext.A1   agreement,     it   is   relevant   to   note   the<\/p>\n
background under which Ext.A1 was executed.   In the year 1972, the six<\/p>\n
brothers together purchased the property and the existing building, namely<\/p>\n
Anand Bazar, which is the line of shop rooms on the east, west and north<\/p>\n
interconnected   with   common   urinals   and   four   godowns   on   the   northern<\/p>\n
extremity on the east and west with a garden in between the shop rooms, in<\/p>\n
the middle.     Subsequently, individual  owners  started  construction  of the<\/p>\n
A.S. NO.363\/1993                                11<\/span><\/p>\n
first   floor   and   a   three   storied   building   individually.         The   three   storied<\/p>\n
building  was  also  constructed  in  such  a way that  it extended  over to  the<\/p>\n
existing   shop   rooms   on   three   sides.     On     the     side   of   the   shop   rooms,<\/p>\n
passages were provided for ingress and egress.     The ground floor of the<\/p>\n
three   storied   building   was  kept   as   car   parking   area.     The   first   floor  was<\/p>\n
completed   with   the   common   funds   raised   by   the   owners     providing<\/p>\n
common facilities including urinals, stair cases, passages, verandah, water<\/p>\n
and   electric   connection.       The   situation   of   the   buildings,   the   lie   of   the<\/p>\n
property and the constructions made were all intended for common use and<\/p>\n
the   raising   of   funds   through   the   bank   and   the     discharge   of   the   liability<\/p>\n
were   all   factors   which   lead   them   to   think   that   the   newly   constructed<\/p>\n
building will   be enjoyed   as common by   the family.    The property with<\/p>\n
the   line     buildings   was   purchased   in   1972.     Till   the   starting   of   the<\/p>\n
construction of the ground floor and the separate three storied building in<\/p>\n
the   space   provided   as   garden   in   1978,   the   parties   never   thought   of<\/p>\n
executing an agreement like Ext.A1.     They were independently enjoying<\/p>\n
the rights and obligations.  Only when further constructions were made by<\/p>\n
providing   more   common   facilities   for   the   enjoyment   of   the   users   of   the<\/p>\n
building   they   thought   of   execution   of   Ext.A1   agreement.             Loan   was<\/p>\n
availed of as a common liability which liability had to be discharged out of<\/p>\n
the   common   funds   raised   from   the   loan.           Car   parking   facility   was<\/p>\n
A.S. NO.363\/1993                              12<\/span><\/p>\n
provided in the ground floor of the three storied building which was also<\/p>\n
intended  for common use.         It  is averred, pleaded  and  testified  that the<\/p>\n
purpose  behind  the execution  of Ext.A1 agreement was for the aforesaid<\/p>\n
reasons.\n<\/p>\n
       10.  In Ext.A1 agreement dated 24.2.1978, the reasons for execution<\/p>\n
of the said agreement is narrated  at pages  2 and 3.     Even at the time of<\/p>\n
starting   the   construction   of   the   new   buildings   and   during   the   course   of<\/p>\n
construction,   the   brothers     had   not   thought     of   executing   any   such<\/p>\n
agreement.     They   started   and   carried   out   the   construction   work<\/p>\n
individually raising own funds.  Only when they planned raising funds for<\/p>\n
the completion of the buildings,  they thought of the idea of entering into<\/p>\n
the   terms   for   raising   common   fund   and   its   collective   discharge.     The<\/p>\n
recitals   in pages 2 and 3 in Ext.A1 spell out   such meaning and purpose.\n<\/p>\n
It is stated therein that all the brothers decided to execute the agreement in<\/p>\n
order to protect the rights of each and every one over their properties, its<\/p>\n
boundaries, for  raising  common funds by way of loan for the purpose of<\/p>\n
construction, and for discharging the said liability without fault and also to<\/p>\n
avoid any future dispute.  In Ext.A1 agreement, the six brothers authorised<\/p>\n
their father A.J. Antony Anjiparambil to collect the rent and to discharge<\/p>\n
the liabilities  due to the bank and for other purposes  and after the death of<\/p>\n
A.S. NO.363\/1993                              13<\/span><\/p>\n
the father, the plaintiffs were entrusted with the duty.   Thus, the intention<\/p>\n
is clear.  The common facilities put up and the common collection of rent<\/p>\n
till the discharge of loan amount made it impossible to enjoy the building<\/p>\n
portion individually.  If a stranger is inducted  as a co-owner, the brothers<\/p>\n
thought   that   such   a   contingency   will   disturb   the   common   understanding<\/p>\n
and common collection and remittance of loan amount through their father.\n<\/p>\n
The   working   and   management   of   the   affairs     will   not   be   smooth   and<\/p>\n
workable with the induction of outsiders.   The loan amount was taken in<\/p>\n
the names of only two brothers.   The common rent collection is confined<\/p>\n
only to the rent accrued from the newly constructed building portion.  It is<\/p>\n
important  to  note  that  the  collection  of  rent  and  individual  enjoyment of<\/p>\n
the   existing   building   (ground   floor)   is   not   disturbed.     The   enjoyment   of<\/p>\n
that portion is not mentioned in the agreement.  It was further provided in<\/p>\n
page   9   of   Ext.A1   that   if   any   of   the   sharers   decided   to   alienate   their<\/p>\n
property due to financial constraints, the sale shall be effected in favour of<\/p>\n
the other brothers and that they shall not sell the property to anybody other<\/p>\n
than the brothers.   It was also agreed that any dispute regarding the price<\/p>\n
offered   shall be referred to a mediator.     It was further agreed that there<\/p>\n
was no prohibition in selling the entire property jointly by all the owners.\n<\/p>\n
A.S. NO.363\/1993                            14<\/span><\/p>\n
      11.   We have already narrated  the background of the case.   It is in<\/p>\n
that background that  Ext.A1 agreement was executed.  The apprehension<\/p>\n
of the parties to the agreement was that if any portion of the building was<\/p>\n
sold to an outsider, the common object arising out of the common utility of<\/p>\n
the building  and the discharge of the common liability will be disturbed.\n<\/p>\n
The court below has discussed the oral evidence tendered by DW.1in that<\/p>\n
regard  which reads as follows:\n<\/p>\n
             “DW.1 has  admitted  that at  the  time of  purchase  of the<\/p>\n
      property, there were only  common latrine and bathroom for the<\/p>\n
      entire   building.   He   has   further   admitted   in   cross   examination<\/p>\n
      that   there   is   only   a   common   meter   room   for   the   electric<\/p>\n
      connections to all the rooms, that there is a a garden in front of<\/p>\n
      the   building,   that   half   of   the   portion   on   the   southern   side<\/p>\n
      belongs to the 1st  plaintiff and the other half belongs to the 5th<\/p>\n
      defendant,   that   the   water   supply   to   all   the   room   is   from   a<\/p>\n
      common meter and that what is stated in Ext.A1 is with respect<\/p>\n
      to  41.187  cents of land with   the buildings  therein.   It is  also<\/p>\n
      admitted   by   him   that   the   ground   floor   belongs   to   the   1st<\/p>\n
      plaintiff   and   the   5th  defendant,   that   there   is   only   a   common<\/p>\n
      stair-case for the 3 upstairs and that he is in agreement with the<\/p>\n
      provisions   contained   in   Ext.A1.     DW.1   would   further   admit<\/p>\n
      that the properties and the buildings  are in joint possession and<\/p>\n
      common enjoyment of the brothers.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
The learned Sub Judge relied on the subsequent conduct of the parties and<\/p>\n
the oral evidence on the defence side to construe the meaning of Ext.A1<\/p>\n
agreement.    But oral evidence  of parties has no place when the intention<\/p>\n
A.S. NO.363\/1993                             15<\/span><\/p>\n
of parties is explicitly clear from the plain reading of Ext.A1.\n<\/p>\n
       12.       We   have   already   stated   in   detail   the   background   on   which<\/p>\n
Ext.A1 agreement was  executed  and  its  meaning  and  context.   From the<\/p>\n
date of the original purchase in 1972 till the year of execution of Ext.A1,<\/p>\n
the brothers never thought of executing any agreement confining  the right<\/p>\n
of alienation among them.     Even at the time of starting the construction<\/p>\n
of the  new buildings  and  during  the course  of construction, the brothers<\/p>\n
didn’t think of executing any such agreement.  They started and carried out<\/p>\n
the   construction   work   individually   raising   own   funds.     Only   when   they<\/p>\n
planned raising funds for the completion of the buildings, they thought of<\/p>\n
the   idea   of   entering   into   the   terms   for   raising   common   fund   and   its<\/p>\n
collective  discharge.    The  recitals    in  pages  2 and 3 in Ext.A1  spell out<\/p>\n
such meanings.  Thus, the intention is clear.  The common facilities put up<\/p>\n
and the common collection of rent  till the discharge of loan amount made<\/p>\n
it  impossible  to   enjoy  the   building  portion  individually.    If a stranger  is<\/p>\n
inducted  as a co-owner, the brothers thought that such a contingency will<\/p>\n
disturb the common understanding and common collection and remittance<\/p>\n
of loan amount through their father.  The working and management of the<\/p>\n
affairs   will not be smooth and workable with the induction of outsiders.\n<\/p>\n
The   loan   amount   was   taken   in   the   names   of   only   two   brothers.     The<\/p>\n
A.S. NO.363\/1993                                   16<\/span><\/p>\n
common   rent   collection   is   confined   to   the   rent   accrued   from   the   newly<\/p>\n
constructed building portion.  It is important to note that the collection of<\/p>\n
rent   and   individual   enjoyment   of   the   existing   building   (ground   floor)   is<\/p>\n
not   disturbed.     The   enjoyment   of   that   portion   is   not   mentioned   in   the<\/p>\n
agreement     It was during the construction of the first floor and the three<\/p>\n
storied building that the brothers thought of pooling and raising common<\/p>\n
fund   from   the   bank     and   to   discharge   the   same   by   utilising   the   income<\/p>\n
derived   by   way   of   rent   from   the   said   portions   of   the   newly   constructed<\/p>\n
building.     The   said   constructions   are   made   in   such   a   way  that   common<\/p>\n
enjoyment   alone   is   possible   due   to   the   various   common   facilities<\/p>\n
provided.   So, the purpose of providing restriction in  alienation in Ext.A1<\/p>\n
agreement   was   for   facilitating   common   enjoyment   of   the   newly<\/p>\n
constructed portions of the building.   This intention is clear from pages 2<\/p>\n
and 3 of the  agreement. The object of execution  of Ext.A1  agreement is<\/p>\n
stated   in   pages   2   and   3   of   the   agreement.     It   is   stated   therein     that   the<\/p>\n
parties therein are constructing the first floor on the existing line of shop<\/p>\n
rooms and the godowns and also a three storied building and that loan has<\/p>\n
to be availed from the bank for completion of the building.  Provision was<\/p>\n
also made for the discharge of the liability.  All this was done to avoid any<\/p>\n
future dispute in respect of the right, title and enjoyment of the property in<\/p>\n
view of the fact that the newly constructed portions were lying as common<\/p>\n
A.S. NO.363\/1993                                 17<\/span><\/p>\n
and   for   the   smooth   enjoyment   of   the   common   facilities   without   any<\/p>\n
obstruction.     So,   the   object   behind   execution   of   Ext.A1   agreement   is<\/p>\n
discernible  from the said recitals.   The said recitals  would show that the<\/p>\n
object     is   to   make   provision   for   the   common   enjoyment   of   the   newly<\/p>\n
constructed portions of the building.    In paragraph 4 at page 7 of Ext.A1<\/p>\n
it is stated that the bank loan shall be   availed of in the name of the first<\/p>\n
plaintiff   and   the   5th  defendant   and   the   other   brothers   shall   stand   as<\/p>\n
guarantors.   It is also stated that   all the six brothers are jointly liable for<\/p>\n
the   loan   to   be   taken   from   the   Syndicate   Bank.     It   was   also   agreed   in<\/p>\n
paragraph 4 that they should collect the rent from the newly constructed<\/p>\n
portions  of the building and  remit the same to the bank  periodically.   In<\/p>\n
paragraph   5   at   page   8   of   Ext.A1,   it   is   again   stated   that   the   above   said<\/p>\n
building shall remain common and shall not be alienated to strangers.  The<\/p>\n
intention of the parties  is clear from the schedule  of property to Ext.A1.\n<\/p>\n
The  schedule   describes   the   property  as   the   newly  constructed   first   floor<\/p>\n
and   the   three   storied   building.       It   is     clear   from   the   schedule   that   it<\/p>\n
excludes  the  original  building  as  it  stood   prior  to   the  new   constructions<\/p>\n
made in 1978.\n<\/p>\n
        13.  As we have already noted,  interpretation of Ext.A1 agreement<\/p>\n
by a plain reading  in the context in which it was executed will clinch the<\/p>\n
A.S. NO.363\/1993                               18<\/span><\/p>\n
issue.     The   best   interpretation   of   a   contract   is   made   from   the   context.\n<\/p>\n
Every contract is to be construed with reference to its object and the whole<\/p>\n
of   its   terms.     The   whole   context   must   be   considered   to   ascertain   the<\/p>\n
intention   of   the   parties.     The   sense   and   meaning   of   its   context   in   any<\/p>\n
particular part of instrument may be collected and  every part of it may be<\/p>\n
brought   into   action   from   the   whole     terms.       The   interpretation   to   be<\/p>\n
adopted should be one which gives effect if possible, to all the parts and<\/p>\n
do not reject any of them.   The deed must be read as a whole in order to<\/p>\n
ascertain   the   true  meaning  of  its  several  clauses,  and  the  words   of each<\/p>\n
clause   should   be   so   interpreted   as   to   bring   them  into   harmony   with   the<\/p>\n
other   provision of the deed if that interpretation does no violence to the<\/p>\n
meaning to which they are naturally susceptible.  In construing a contract<\/p>\n
the Court must look at the words used in the contract unless they are such<\/p>\n
that   one may suspect that they do not convey the intention correctly.   If<\/p>\n
the words are clear, there   is very little the Court can do about it.   In the<\/p>\n
construction  of a written   instrument  it  is  legitimate  in order  to ascertain<\/p>\n
the true meaning of the words used and if that be doubtful it is legitimate<\/p>\n
to   have   regard   to   the   circumstances   surrounding   their   creation   and   the<\/p>\n
subject matter to which  it was designed and intended they should  apply.\n<\/p>\n
The  settled    principles  of  interpretation  as  stated  supra  right  from  Privy<\/p>\n
Council   decision   reported   in  Purnananthachi   v.   Gopalaswami,   A.I.R.\n<\/p>\n
A.S. NO.363\/1993                                19<\/span><\/p>\n
1936   Privy   Council   281  was   followed   by   the   Supreme   Court   and<\/p>\n
different High Courts in a catena of decisions and the recent are in Ganga<\/p>\n
Prasad   Verma   (Dr.)   v.   State   of   Bihar,   1995   Supp.(1)   SCC   192,<\/p>\n
J.P.Bansal   v.   State   of   Rajasthan,(2003)   5   SCC   134,   Nathi   Devi   v.\n<\/p>\n
Radha Devi Gupta (2005) 2 SCC 271 and Promoters & Builders Assn.<\/p>\n
of Pune v. Pune Municipal Corpn.<\/a> (2007) 6 SCC 143.\n<\/p>\n
        14.  Every transfer is not vitiated simply because there may happen<\/p>\n
to be some clauses  in the deeds  which are repugnant to the free transfer<\/p>\n
and circulation of property.   The deprivation of incidents of ownership in<\/p>\n
whatever form is void and unenforceable.  Right of transfer is incidental to<\/p>\n
and   inseparable   from   the   beneficial   ownership   of   a   property.       Under<\/p>\n
Section   10   of   the   Transfer   of   Property   Act   a   condition   absolutely<\/p>\n
restraining   a   transferee   from   disposing   of   the   property   is   void.     The<\/p>\n
section   is   silent   as   to   the   validity   of   qualified   restraints   on   alienation.\n<\/p>\n
Partial restraint on alienation is not prohibited    under the said provision.\n<\/p>\n
The question as to whether the clauses in a deed are absolute or partial has<\/p>\n
to   be   gathered   from   the   contents   of   the   deed.     The   Privy   Council   in<\/p>\n
Mohammed Raza v. MT. Abbas Bindi Bivi, A.I.R.<\/a> 1932 P.C. 158  held<\/p>\n
that `partial restrictions are neither repugnant to law nor to justice, equity<\/p>\n
and good  conscience.   Lord Wenslevdale  in  Monypenny v Monypenny<\/p>\n
(1861 9 HLC 114 said: “the question is not what the parties to a deed may<\/p>\n
A.S. NO.363\/1993                               20<\/span><\/p>\n
have intended to do by entering into that deed, but what is the meaning of<\/p>\n
the  words  used  in that deed;  a most important distinction  in all  cases  of<\/p>\n
construction   and   the   disregards   of   which   often   leads   to   erroneous<\/p>\n
conclusions.’     Brett L.J. in Re Meredith, ex parte Chick (1879) 11 Ch D<\/p>\n
731  observed:     “I  am  disposed   to   follow   the   rule   of construction   which<\/p>\n
was laid down by Lord Denman and Baron Parke ……. They said that in<\/p>\n
construing     instruments   you   must   have   regard   not   to   the   presumed<\/p>\n
intention of the parties, but to the meaning of the words which they have<\/p>\n
used.”\n<\/p>\n
       15.     Therefore,   we   are   of   the   considered   view   that   Ext.A1<\/p>\n
agreement does not take in the original building.  The first defendant had<\/p>\n
assigned and alienated his two shop rooms on the ground floor in favour<\/p>\n
of   defendants   2   and   3   by   documents   dated   13.12.1989   registered   as<\/p>\n
document Nos.3772\/89 and 3773\/89 of S.R.O., Ernakulam.  The said shop<\/p>\n
rooms  mentioned in the assignment deed No.1854\/72 stands in the name<\/p>\n
of   the   first   defendant.     Since   the   ground   floor   of   the   building   is   not<\/p>\n
included  in  Ext.A1  agreement,  the plaintiffs  are not  entitled  to  seek  any<\/p>\n
reliefs sought for in the suit.  We have already found that the terms of the<\/p>\n
agreement  entered into between the parties are only in respect of the first<\/p>\n
floor and the newly constructed three storied building.    In the light of the<\/p>\n
view   we   have   taken,   the   question   whether     there   is   total   prohibition<\/p>\n
A.S. NO.363\/1993                               21<\/span><\/p>\n
against   alienation   of   the   property   scheduled   to   A1   and   that   clause   5   of<\/p>\n
Ext.A1   amounts   to   total   restraint   which   is   against   public   policy   hit   by<\/p>\n
Section   23   of   the   Indian   Contract   Act   does   not   arise   for   consideration.\n<\/p>\n
It is   made clear that   we have interpreted Ext.A1 agreement only for the<\/p>\n
purpose of enquiry as to whether   the terms in Ext.A1 applies to ground<\/p>\n
floor of the existing building or not.\n<\/p>\n
          In  the  result,   we allow  the  appeal   and  set  aside   the   judgment  and<\/p>\n
decree .  The plaintiffs are not entitled to the reliefs.  The suit is dismissed.\n<\/p>\n
The deposit already made by the plaintiffs pursuant to the direction in the<\/p>\n
impugned  judgment  can  be withdrawn  by the  plaintiffs  with  the accrued<\/p>\n
interest.       By   the   interm   order   dated   24.9.1993,   this   Court   directed   the<\/p>\n
appellants to deposit the cost portion of the decree.  The amount deposited<\/p>\n
was withdrawn by the plaintiffs.   The plaintiffs shall repay the amount to<\/p>\n
the appellants within a month from today.   There will be   no order as to<\/p>\n
costs.\n<\/p>\n
                                           (KURIAN JOSEPH, JUDGE)<\/p>\n
                                          (HARUN-UL-RASHID, JUDGE)<\/p>\n
sp\/<\/p>\n
A.S. NO.363\/1993    22<\/span><\/p>\n
                              C.R<\/p>\n
                          KURIAN JOSEPH &<\/p>\n
                          HARUN-UL-RASHID,JJ<\/p>\n
                          A.S. NO.363 OF 1993<\/p>\n
                              JUDGMENT<\/p>\n
                          6TH FEBRUARY, 2008<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Thomas vs Dr.A.A.Henry on 6 February, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM AS No. 363 of 1993(D) 1. THOMAS … Petitioner Vs 1. DR.A.A.HENRY … Respondent For Petitioner :SRI.S.EASWARAN For Respondent :SRI.M.C.SEN (SR.) The Hon’ble MR. Justice KURIAN JOSEPH The Hon’ble MR. Justice HARUN-UL-RASHID Dated :06\/02\/2008 O R D […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-41414","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThomas vs Dr.A.A.Henry on 6 February, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thomas-vs-dr-a-a-henry-on-6-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thomas vs Dr.A.A.Henry on 6 February, 2008 - 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