Deeds; Freemason Lodge, Thrissur Vs. Dr. Raman [Kerala High Court, 29-06-2016]

The recitals in a document give the brief history of the property upto its vesting in the transferor and the circumstances which lead up to the necessity of executing the document. There are two kinds of recitals. Narrative recitals and introductory recitals. The former contain the facts and circumstances which show the nature of the interest to be dealt with, and the latter the motive or intention behind the execution of the deed.

Deed


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.ABRAHAM MATHEW J.

R.S.A.No.592 of 2007

Dated this the 29th day of June, 2016

AGAINST THE JUDGMENT IN AS 56/2003 of I ADDITIONAL SUB COURT, THRISSUR DATED 26-02-2007 AGAINST THE JUDGMENT IN OS 2841/1998 of PRINCIPAL MUNSIFF COURT,THRISSUR DATED 27-03-2000

APPELLANTS/APPELLANTS/PLAINTIFFS

FREEMASON LODGE, THRISSUR AND ANOTHER

BY ADV. SRI.BECHU KURIAN THOMAS

RESPONDENTS/RESPONDENTS/DEFENDANTS

DR. RAMAN AND ANOTHER

R1 BY ADVS. SRI.C.CHANDRASEKHARAN SRI.K.C.VISWAMBHARAN

JUDGMENT

One Mabella Williams was owner of 60 cents of land and the buildings thereon. On 31.3.1993 by Ext B1 sale deed she sold a portion of it to the first respondent. There are two items of properties in it. Item No.2 is the first floor of a building and the undivided land on which the building is situated. Ten months later, by Ext A1 sale deed, she sold 5.879 cents with the building thereon to the first appellant of which the second appellant is the secretary. The first respondent claimed that the building in respect of which Ext A1 was executed is the one the first floor of which with the undivided right in the land which was already sold to him by Ext B1 sale deed earlier. The first respondent along with the second respondent put up a staircase in the property. The appellants also put up a staircase. The property to which both parties claim title is hereinafter called the disputed property. According to the appellants, Mabella did not intend to transfer the disputed property to the first respondent and Ext B1 sale deed does not prove transfer of it to the first respondent. The appellants filed the suit for a perpetual injunction prohibiting the respondents from trespassing into the property covered by their Ext A1 sale deed which is the plaint schedule property and for a mandatory injunction directing them to remove the staircase put up by them in the disputed property. The respondents made a counter claim praying for a perpetual injunction prohibiting the appellants from trespassing into the disputed property and for a mandatory injunction directing the appellants to demolish and remove the staircase put up by them. The trial court dismissed the suit and allowed the counter claim. In A.S.No.56 of 2003 the decree was confirmed.

2. The courts below held that the disputed property belongs to the first respondent as it is a subject matter of the sale evidenced by Ext B1 sale deed executed in his favour and on the transfer of title to him the transferor could not have given title to the first appellant. To enter the finding the courts below relied on the oral evidence also of the transferor, who was examined as DW3.

3. This court formulated three substantial questions of law for hearing.

4. In Ext B1 sale deed there are two items of properties. Their descriptions are extracted below:

Item No.1

“A piece and parcel of land having an extent of 10 Cents having pandaravaka rights with all the improvements, easements and other similar rights appurtenant thereto and the building numbered XXVII/358, the water and electric connections, security deposits, meters and fittings situated therein and all rights. Eight Cents of lands equivalent to Three decimal Two four Ares are comprised under Sy.No.Ninety Seven Sub Division No.Part. Total Extent of Sy.No.is 0 Acre 51 Cents. Two Cents of lands comprised under Sy.No.Ninety eight sub division No.Part and equivalent to Zero decimal eight one ares. Total extent of the Sy.No. is 0 Acre 65 Cents.”

Item No.2

“The first floor of the building numbered XXVII/382/1 having the plinth area of 1.07 Cents (36′ x 13′), the electric fittings, all the wooden and steel installations and the proportionate indivisible right of the land. The said area is equivalent to zero decimal four zero are and having pandaravaka right”.

5. The properties sold to the appellant later under Ext A1 sale deed is described in it as follows:

“A piece and parcel of land having an extent of 5.879 cents having pandaravaka rights with all the improvements, easement and other similar rights appurtenant thereto and the building No.XXVII/359, with water and electric connections, security deposits, meters and fittings situated therein and all rights and compound walls.”

6. At once it may be noted that the number of the building given in the description in the two documents is not the same. It is not in dispute that the number given in Ext B1 sale deed of the first respondent is not the correct number of the building in the disputed property.

7. The ordinary rule of interpretation of documents is that the intention of the parties must be discovered, if possible, from the expressions they have used in it. Thus courts below did not make any attempt to discover the intention of the parties from the statements in Ext B1 sale deed; instead they relied on irrelevant and immaterial facts disclosed in the evidence of the witnesses.

8. In

Chunchun Jha v. Ebadat All and another, AIR 1954 SC 345

the Supreme Court held that if the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended.

9. In

Mackenzie v. Duke of Devonshire, (1896) A.C.400

Lord Halsbury stated that a preliminary statement of what the maker of the deed intended should be the effect and purpose of the whole deed when made. Though it is the operative part that really effects the transfer and the recitals are not necessary part of it and have no effect or operation, they help the court in interpreting it in case of doubt as they reveal the intention of the transferor. If the recitals and the operative part of the document are in harmony, ordinarily, there is no difficulty in interpreting it.

10. The recitals in a document give the brief history of the property upto its vesting in the transferor and the circumstances which lead up to the necessity of executing the document. There are two kinds of recitals. Narrative recitals and introductory recitals. The former contain the facts and circumstances which show the nature of the interest to be dealt with, and the latter the motive or intention behind the execution of the deed.

11. The relevant parts of the recitals in Ext B1 sale deed executed by the transferor (DW3) in favour of the first respondent are extracted below:

“And whereas for the purpose of disposal of the properties of 10 cents the vendor has laid a road having 16 (sixteen) lings breadth on the Eastern side of the schedule properties and North wards from the Municipal road and the vendor has assured the purchaser that the schedule properties and the lands pertaining to the said road are completely free from mortgage, charge, lien, attachment, suit, arrears of taxes and other dues, claims of workers and other persons, proceedings under the Kerala Land Reforms Act, Land Acquisition Act and other encumbrance and impediments whatsoever……………………..

……. The building in the schedule properties numbered XXVII/358 has been leased out to Mr. Thashnath Sarangadharan for a monthly rent of Rs.400/- and no advance or security has been collected or received by the vendor and there is no arrear of rent upto date. The vendor has assured the purchaser that the purchaser has full power to continue the lease, collect the rent or to evict the lessee…………………………………………….

……. In pursuance of the said agreement and in consideration of a total sum of Rs.1,80,000/- (Rupees One lakh and Eighty thousand only) inclusive of the easement right of the said road which has been paid to the vendor by the purchaser by way of Cheque No.764691 dated 31.3.93”.

12. The recitals extracted above make the following facts clear:

a. The transferor set apart a portion of her property for a road to facilitate sale of 10 cents.

b. The agreement between the transferor and the first respondent was for sale of 10 cents only.

c. The consideration of Rs.1,80,000/- fixed by the parties was only for 10 cents.

d. The first respondent paid only Rs.1,80,000/- to the transferor.

e. Only one building existed in the property agreed to be sold, the number of which was 27/358, and the possession of which was with one Sarangadharan, who was its lessee.

f. The assurance as to the transferor’s title and the property being free from encumbrance was only in respect of 10 cents of land and the building bearing No.27/358.

13. Now the operative portion of Ext B1 sale deed may be examined. It runs thus:

“………The vendor hereby transfers, conveys, assigns and delivers possession unto the purchaser by way of absolute sale, all estate, right, title, interest claims and privileges in the aforesaid property having an extent of 10 cents more particularly described in the schedule hereunder written and the easement right of the said road (Hereinafter referred to as the said property) together with all the improvements in the said property and all rights appurtenant thereto and together with the benefits of all covenants and indemnities to which the vendor is entitled to in respect thereof.

14. The express and plain words used in the operative part admits of any doubt that the only property which was transferred and the possession of which was delivered is 10 cents only.

15. The habendum in Ext B1 only mentions the property mentioned in the first part of the document, which is only 10 cents and the building bearing No.27/358.

16. There is no lack of clarity in the facts and circumstances mentioned in the recitals in Ext B1 sale deed. They are in complete harmony with the operative portion of the document.

17. The description of the boundaries of the properties in Ext B1 sale deed also throws some light on the point in dispute. Admittedly, item No.2 in Ext B1 sale deed, which is the property in dispute is the southern property adjoining item No.2 in the deed. The southern boundary of item No.1 is shown as the remaining portion of the property of the transferor. This is also an indication that the transferor did not transfer item No.2 in Ext B1 sale deed. If she had sold it, the southern boundary of item No.1 would have been mentioned as item No.2.

18. It came out in the cross-examination of the transferor, who was examined as DW3 that Ext B1 sale deed was got prepared by the first respondent-transferee. When the document the interpretation of which is required was prepared by one of the parties to the transaction, it should be interpreted against him. This rule of interpretation is called contra prefertem. This rule was applied in