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TMI Blog2010 (12) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... battle for the property. In this Judgment, the parties are referred to as they are arrayed in the suit. PLEADINGS 2. C.S. Narasimhacharlu (CSN), C.S. Krishnamacharlu (CSK) and C.N. Srinivasacharlu (CNS) are sons of CSC. Plaintiffs 1 and 2 are sons of CSK and third Plaintiff is son of CSN. They instituted the suit registered as O.S. No. 69 of 1980 on the file of the Court of the Subordinate Judge, Proddatur, which was transferred as O.S. No. 68 of 1985 to the Court of the Subordinate Judge, Kadapa. It was instituted for declaration of Plaintiffs right to the suit schedule property together with open site, constructions, structures and improvements made thereon, to declare the right of the Plaintiffs and first Defendant to the portion of the suit schedule in occupation of Defendant No. 8 and for a direction to Defendants 12 to 18 to deliver possession of the property. Their case in the plaint is as below. 3. The suit schedule property was originally owned by CSC. He died in 1922, leaving behind his three sons. On 13.05.1938, CSN and CSK executed a registered document in favour of M/s.V. Shankara Rao, B. Bala Narayana Reddy and Ananda Rao, for the purpose of conducting the club in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offenders were arrested in the club premises as it became a joint for anti social activities like gambling, drinking, debauchery and it earned very bad name. 6. Defendant 8 encroached upon a portion of suit schedule property on the northern side without any manner of right. The persons in management did not protest. Some members made efforts to remove the encroachments. A collusive settlement between the Defendant 8 and persons in management was brought into effect after reference to first Defendant as arbitrator. Defendant 8 agreed to leave the encroached portion except an extent of Acs.0.11/2 cents as shown in the plaint plan. The said settlement is not binding on the Plaintiffs and Defendant 8 is liable to be evicted. As the purpose for which Plaintiffs' predecessors gave the land does not exist, the land must revert back to the donor's family. Notices were issued on 14.07.1976 requiring the Defendants to deliver possession of club premises. Defendant 10 sent reply on his behalf and on behalf of unnamed President and Secretary of the club. 7. From 1973 till 1977, various groups began laying claims to the control and management of the club without any legitimate me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property was gifted. He alleges that the condition was onerous and being a clog, the same does not make the transfer a conditional one. He put up a cattle shed and hayricks and enjoyed site since 1934, by enclosing the same with a mud wall on the southern site. On the date of purchase, there is no compound wall on the southern site abutting the area known as Sundaracharlu thota. Defendant 8 is in possession continuously, uninterruptedly and knowledge of all the concerned and therefore, he perfected title by adverse possession as against the owners of Sundaracharlu thota. He denied allegation that he encroached upon the land of the club site. He, however, does not dispute the alleged resolution by the executive committee of the Club for settlement and ultimately, settlement between Defendant 8 and the Club. As per the settlement, he was asked to shift the mud wall a little further towards north upto the line of electric and telephone poles adjacent to the south of the mud wall. Accordingly, he demolished wall and constructed pucca wall. The first Defendant submitted a report that which was approved by the Club. The legal heirs of CSC, therefore, cannot raise any dispute. They a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unning a school. ISSUES FOR TRIAL AND FINDINGS OF TRIAL COURT 13. Based on the rival claims, the trial Court framed the following issues: 1. Whether the Plaintiffs are the owners of the suit schedule property A B E F as shown in the plaint plan together with the super structure shown as G H I J? 2. Whether the Plaintiffs and D1 are the owners of the portion marked as B C D E in plaint plan which is now in the occupation of the 8th Defendant? 3. Whether the Plaintiffs are entitled for the reliefs of declaration and recovery of possession as prayed for? 4. To what relief? During the trial, the third Plaintiff, Krishnamacharyulu, deposed as P.W.1 besides examining two members; a retired Deputy Tahsildar as P.W.2 and a retired teacher and former Secretary of the Club as P.W.3. Exs.A1 to A12 were also marked. Defendants examined D.W.1 to D.W.7, who include one former President of the Club, one former Secretary of the Club, one former Secretary of the Tennis Club and a tennis ball picker of Tennis Court. The Defendants also marked Exs.B1 to B4. 14. Whether the Plaintiffs are owners of suit schedule property with the super structure thereon? On this issue, the trial Court foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t liable to be set aside in appeal at the instance of Defendant 10 and legal heirs of Defendant 8. Their case has to be adjudicated only with reference to their stand in their respective written statements. As other Defendants did not choose to file appeals against the declaratory decree such a plea is beyond the scope of appeal. In support of the submission he relies on Rafique Bibi v. Sayed Waliuddin (2004) 1 SCC 287 : AIR 2003 SC 3789 . He would urge that Defendant 8 cannot be permitted to raise plea of adverse possession as he claims under an arbitration settlement. For this purpose, he relies on Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 . According to the Senior Counsel, Ex.A1 makes it a conditional transfer and in the event of failure to carry on the activities for which the land was donated, the legal heirs of Sundaracharlu are entitled to get back the possession. He would urge that the Plaintiffs amply proved the plea and if the land is taken possession neither the Society nor members would suffer any legal injury. According to him as per Section 10 of the Limitation Act, 1963, when the property is held in trust, the limitation would not apply. He contends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh (Telangana Area) Public Societies Registration Act, 1350 Fasli (Act 1 of 1350 F) applied to erstwhile Hyderabad State. The Andhra Pradesh Societies Registration Act, 2001 - a consolidating and amending law - repealed Central Act in its application to Andhra area as well as Act 1 of 1350 F. Under the new legal regime, Sections 3 to 9 deal with registration of Societies with memorandum of association and byelaws which are to be filed with the Registrar of Societies. In addition Section 9 of the A.P. Act requires the furnishing of the list of members of the general body every year. Even when an amendment is carried out to byelaws it comes into effect only when they are filed with and are certified by the Registrar of Societies. Section 11 of A.P. Act requires a register of members to be maintained besides keeping the accounts and records of the society. 21. In this case, D.W.1, D.W.2, D.W.3 and D.W.6 were examined. Admittedly they were at some point of time involved in the affairs of the Club. Except D.W.2, the former Secretary of tennis Club, nobody even whispered about the maintaining of the books of accounts or registers. As already pointed out, no evidence was let in like c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as possession are necessary and proper parties. Each category of all these can never have the same line of defence to oppose the suit. For instance, rival titleholders may put up a case as to how he alone should be treated as rightful owners whereas a person in possession like tenant may claim statutory right or common law right to protect his possession. Yet another instance is the right of a person who has only a limited right over the property in a declaratory suit like a mortgagee or a licensee or a contractor in respect of usufruct on the land. In a case of mining lease, the line of defence is altogether different. Therefore any type of rival claim has to be considered by the Court with reference to the category of Defendants. If the Court grants declaratory decree to the Plaintiff as against those Defendants, who have set up rival title in themselves, they only can assail such title in the appellate Court. If there is also a decree for possession, such category of persons can assail the decree only to defend their possession and cannot ordinarily be permitted to impeach the title based on declaratory decree. 25. Thus, an appeal to the declaratory decree can be adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be in the negative. Defendant 8 claims to have perfected the title by adverse possession by reason of his long occupation as well as arbitral settlement, which Defendants claim. It is a different question altogether, which is considered infra. So far as this point is concerned, the Defendant 8 - it must be held; cannot be conferred locus standi to question the entire decree in this appeal. 27. Insofar as the Defendant 10 is concerned, he is a member of the Club. His right is only limited to claim the privileges as are conferred as a member of the Club and cannot claim ownership rights to the suit schedule property nor he claims to represent the Club. As pleaded by the Plaintiffs, Defendant 8 along with others was impleaded as party Respondent in M.C. No. 35 of 1978 (Ex.A2) before the Sub Divisional Magistrate, Jammalamadugu. Therefore, he or his legal heirs cannot impeach the declaratory decree by the trial Court. The point is decided against the Appellants accordingly. Adverse possession 28. The Plaintiffs alleged that A B C D E site shown in the plaint plan was encroached upon by the Defendant 8. He demurred taking two pleas. First, that he purchased A B C D E site on 25.5.193 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the Appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the Appellant. 31. Adverse possession - as is well known; is a hostile possession by clearly asserting hostile title in denial of the title of true owner. A party claiming adverse possession must prove that his possession is peaceful, open and continuous - nec vi, nec clam, nec precario. The possession must be adequate in continuity, in public and in extent to show that possession is adverse to the true owner. It must always start with a wrongful possession and be actually, peaceably, exclusively hostile and continued over a statutory period of twelve (12) years. (see D.N. Venkatarayappa v. State of Karnataka (199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are mostly well settled by reason of the precedent law. Similarly the subject 'the principles of interpretation of documents', is part of voluminous legal prose mostly because of the precedent law. In spite of spending considerable time on research, this Court is not able to lay hands on any one particular judgment, which comprehensively considers various rules of interpretation of deeds and documents, be they fall in the category of Will, Gift deed, Trust deed, Power of Attorney etc., which are subject to somewhat different rules of interpretation. Therefore, hereunder are considered; albeit in brief - the rules of interpretation of deeds and documents. Before doing so, it is beneficial to notice the definitions/concepts of 'deed', 'document' and 'instrument'. 'Deed' in English Common Law is an instrument written in parchment or paper, whereunto ten things are necessarily incident, viz., First, writing. Secondly, in parchment or paper. Thirdly, a person able to contract. Fourthly, by a sufficient name. Fifthly, a person able to be contracted with. Sixthly, by a sufficient name. Seventhly, a thing to be contracted for. Eighthly, apt word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general frame of the deed. Therefore the deed is to be construed as a whole. 34. Herbert Broom's Legal Maxims, (1939, 10th edn by R.H. Kersley) in Chapter 8 gives "a general view of...maxims as are of most practical utility in construing statutes, deeds and other written instruments including Wills". There are 17 rules of interpretation applicable to deeds and other written instruments. Some of these are also applicable to interpretation of statutes. So as to keep the length of this judgment to the minimum and also bring all the rules of interpretation of documents to one place the 17 principles/legal maxims with the translation and the decision of Supreme Court making reference to these maxims are given in the following table. TABLE - Rule No. Latin Maxim English Meaning Decisions of Supreme Court 1 2 3 4 I Benign ae faciend ae sunt interpretationes propter simplicitatem laicorum ut res magis valeat quam pereat It means a liberal construction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties. H.S.Vankani v SoGujarat (2010) 4 SCC 301; Jyoti Harshad Mehta v Custodian (2009) 10 SCC 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned according to the matter or person to which they relate XII Expressio unius est exclusio alterius expressum facit cessare lacitum The express mention of one thing implies the exclusion of another Union of India v Tulsimram Patel (1985) 3 SCC 398 ADM, Jabalpur v Shiv Kant Shukla (1976) 2 SCC 521 XIII Expressio eorum qu ae tacite insunt nihil operatur The expression of what is tacitly implied is inoperative XIV Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur Words to which reference is made in an instrument have the same operation as if they were inserted in the clause referring to them XV Ad proximum antecedens fiat relatio, nisi impediatur sententia Relative words refer to the next antecedent, unless by such construction the meaning of the sentence would be impaired XVI Contemporanea expositio est optima et fortissima in lege The best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up Bhuwalka Steel Industries Ltd v Bombay Iron & Steel Labour Board (2010) 2 SCC 273 T.N.Electricity Board v Status Spg. Mills Ltd. (2008) 7 SCC 353 XVII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h while interpreting the term 'levy' in Section 73A of the Estate Duty Act, 1953, the Supreme Court relied on the maxim Qui haeret in litera, haeret in cortice. 38. In T.N. Electricity Board, the Government by notification dated 14.2.1997 withdrew concessions granted earlier to new high tension industries in respect of electricity tariff. An exception was made in favour of industries 'set up' before 15.2.1971. This was clarified by a letter dated 01.8.1997 to the effect that 'set up' would mean 'obtained service connection'. Withdrawal of tariff concession and the clarificatory letter were assailed. The learned single Judge dismissed the writ petitions. Appeals were filed to the Division Bench. During the pendency, the Government issued notification dated 07.1.2000 giving further clarification with regard to the meaning of 'set up'. The Division Bench, however, ignored the pendente lite notification and disposed of the appeals holding that, "if the high tension industry had been erected before 15.2.1997 they would be eligible for concessional electricity tariff." The Supreme Court relied on the maxim Contemporanea expositio and while holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence is made to some of these judgments. 41. In Provash Chandra Dalvi, referring to N.E. Railway v. Hastings (1900) A.CC. 260 the Supreme Court held that, "every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected 'ex antecedentibus et consequentibus' every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible". It was further held that, "In construing a contract the court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject-matter to which it was designed and intende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence is not permissible. But as postulated by the maxim Ambiguitas verborum latens verificatione suppletur nam quod ex facto oritur ambiguum verificatione facti tollitur, latent ambiguity may be explained by evidence because the ambiguity often arises by proof of an intrinsic fact, which may be removed in like manner. Sections 91 to 95 of the Indian Evidence Act, 1872 adumbrate this principle. 45. The fourth principle is that in the event of the intrinsic incongruities and inconsistencies flowing from the words and language used in the document, "the intention would prevail over the words used." The intention of the parties has to be determined from the attending circumstances leading to the transaction. In a given situation, post-execution conduct of the parties and partial or full discharge of obligations would also determine the intention of the parties. The fourth principle is an exception to the first three principles. If the language used in the document is very clear, while determining the nature of the document, nature of rights and obligations flowing from the document cannot be inferred by resorting to the fourth principle. 46. An attempt has been made supra to gath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act instead of another commonly called the principal. The contract of agency which is dealt with in Chapter X of the Indian Contract Act, 1872 (Sections 182 - 238) is also regulated by creation of execution of 'power of attorney'. It is common that principal may either execute a general power of attorney or special power of attorney as per the need. In the former, the authority to the donee (person in whose favour power is conferred) is to do all acts for and on behalf of the principal in relation to a tangible or intangible property or right. In the latter the donee is given power only to do a specified act in the manner provided and as mandated by the principal like executing a document to sell and register property, to receive money and/or to incur expenditure as directed etc. The disputes often arise in the Civil Courts with regard to the scope and extent of the authority or power given by the principal to the donee. Such disputes may arise between the donor and donee of the 'power of attorney' or between the donee and third parties. 49. The law is well settled with regard to the interpretation of 'power of attorney'. In P.M. Desappa Nayanim Varu v. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er held that the implied powers under an authority cannot go beyond the scope of the general power of the 'power of attorney'. The relevant observations are as follows. In this case, the purpose of the general power was subordinated to the specific powers given which determined the object of the power of attorney. There is no deviation in this case from the general rules of construction set out above by us. We have indicated above that implied powers cannot go beyond the scope of the general object of the power but must necessarily be subordinated to it. In fact, in a case like the one before us, where a general power of representation in various business transactions is mentioned first and then specific instances of it are given, the converse rule, which is often specifically stated in statutory provisions (the rules of construction of statutes and documents being largely common), applies. That rule is that specific instances do not derogate from the width of the general power initially conferred. To such a case the ejusdem generis rule cannot be applied. The mode of construing a document and the rules to be applied to extract its meaning correctly depend not only upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of revocation. 54. If the executant imposes self-restriction with reference to the right to sell or create encumbrances though he is in possession of the property after execution of the document, the document is a 'settlement deed' and not a 'Will'. In Namburi Basava Subrahmanyam v. Alapati Hymavathi (1996) 9 SCC 388 : AIR 1996 SC 2220. The Supreme Court held that, "nomenclature of the document is not conclusive and that the recitals in the document as a whole and the intention of the executant and acknowledgement thereof by the parties are conclusive. The Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the executant intended to transfer the interest in the property only on the demise of the settler. In the former case it is a gift/settlement and in the latter it is a Will. 55. In Subbegowda v. Thimmegowda (2004) 9 SCC 734 : AIR 2004 SC 2428, Justice Lahoti (as he then was) considering the question as to the nature of the document styled as 'settlement deed' eluc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As the relevant decisions have been referred to supra, the principles governing construction of Will are taken up in the next portion of this judgment. Interpretation of "Will" 58. "Will" means the legal declaration of intention of a testator with respect to his property which he desires to be carried into the effect after his death (Section 2(h) of the Indian Succession Act, 1925). Part VI (Sections 57 to 191) thereof deal with testamentary succession. Sections 74 to 111 contain rules of construction of Wills. To be a valid testamentary disposition, a Will shall have to be signed by the testator which shall be attested by two or more witnesses each of whom has seen the testator sign the Will. 59. The principles of constructions of Wills may be summed up as follows: (i) to the extent possible effect should be given to every disposition in the Will; (ii) if there are repugnant provisions conferring successive interests, first interest created is valid; (iii) if the first interest created is not valid, Court as far as possible should give effect to every testamentary intention in the Will; (iv) ascertain the intention of words used; (v) Court to put itself in testators on chair; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B. 62. In Navneet, the Supreme Court referred to earlier judgments in Gnanambal Ammal v. T. Raju Ayyar AIR 1951 SC 103, Ram Gopal v. Nand Lal AIR 1951 SC 139, Raj Bajrang Bahadur Singh v. Bakhtraj Kuer AIR 1953 SC 7, Pearey Lal v. Rameshwar Das and Ramachandra AIR 1963 SC 1703 and laid down the following principles for construction of a Will. i) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed; ii) In construing the language of the will the court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense. But all this is solely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail. 65. Interpreting Section 88 of the Succession Act, in V. Subbareddi v. Basivireddi 1966 (1) An. W.R. 272, this Court held that where an absolute gift of property is made under one clause of the Will and by a later clause the mode of enjoyment of that property or the right of management of it is sought to be curtailed, it can be held that restrictions sought to be placed on the enjoyment or management of the property are repugnant to be unqualified and absolute estate given by the previous clause of the Will, but the position will be far different in a case where two gifts, one wholly inconsistent with the other, are made under the Will in favour of two different persons in respect of the same property, the gift in favour of other person cannot be ignored. If the situation presents any difficulty, then only Section 88 of the Succession Act should be resorted to. Interpretation of Ex.A1, executed by CSN and CSK Ex.A1 is in Telugu language. It reads as under. Document No. 1127 of 1938 13.5.1938 66. The English translation of the highlighted portion, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n subsequent is one to be performed after the gift had taken effect, and, if the condition is unfulfilled will put an end to the gift." 70. Ex.A1, on a true construction, is not a gift deed. CSN and CSK executed the document transferring the suit schedule property for running the Club without any right of alienation. The transfer of property is also conditional that as long as Club is run the transferees or their successors can enjoy the property and if the Club activities are not carried on, the property shall revert to the transferors or their legal heirs. It is a licence as rightly pointed out by the Plaintiff's Senior Counsel. There was no transfer of property. This was made clear in positive terms as well as negative terms. The right to resume the land was reserved and retained by the transferors. Applying the principles of interpretation of documents, as discussed supra, this Court is convinced that argument of the Defendants that the condition of inalienability in Ex.A1 rendered such condition void, cannot be accepted as Ex.A1 is not a gift deed. 71. Then the question is whether the Club ceased its activities. There is oral evidence on both the sides on this aspect. D. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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