Narayani Ammo vs Narayanan Namboodiri

K.S. Paripoornan J.

The plaintiff in O. S. No. 162 of 1975 on the file of the Munsiff''s Court, Taliparamba is the appellant herein. The suit was filed praying for the grant of a permanent injunction and also for recovery of the plaint schedule property in case the defendant is found to be in possession of the same with future mesne profits. The sole defendant is the respondent in this appeal, It is common ground that the plaint schedule property originally belonged to defendant''s illom in jenmom. The illom leased the property to one Krishnan Nambiar years ago along with other properties. After the demise of Krishnan Nambiar his wife and children assigned the tenancy right over the plaint schedule, property to the plaintiff''s mother Madhavi Amma by Ext. A1 dated 2-1.0-1946. It is alleged in the plaint that from 1945 Madhavi Amma was in possession till her death. The Kerala Land Reforms Act 1964, as amended by Act 35 of 1969, came into force. As per S.62 of the Act, the right, title and interest of the landlord vested in the Government from, 1-1-1970. Madhavi Amma filed O. A. 141 of 1970 before the Land Tribunal for purchase of the landlord''s right. She died in November 1970. The Land Tribunal by Ext. A12 dated 24-11-1971 passed an order in her favour and the certificate of purchase was issued as per Ext. A3 dated 24-11-1971. According to the plaintiff, the defendant has no right in the plaint schedule property. The defendant is making attempts to trespass into the plaint property. The plaintiff is still in possession. If during the course of the suit the defendant is found to be in possession, his possession can be treated only as that of a trespasser and as such the plaintiff is entitled to recover the property on the strength of plaintiff''s title. The plaintiff filed the suit praying for recovery of the plaint schedule property with future mesne profits. The defendant contested the suit. The title of the plaintiff as pleaded was denied. It was stated that the mother of the plaintiff Madhavi Amma died on 11-11-1970. No legal representative was impleaded in the petition. O.A. 141 of 1970 abated due to non-impleadment of legal representatives. There was some dispute between the plaintiff and the defendant. They were settled. Finally by Ext. B1 dated 14-6-1971 the plaintiff assigned her rights in the suit property to the defendant. The assignment is in favour of 7 persons. Non-impleadment of persons other than the defendant is fatal to the suit. The suit is bad for non-joinder of necessary parties. Since an assignment deed was executed by the plaintiff, (Ext.B1). the defendant has title. He is in possession of the property. The plaintiff is not competent to question the same. No cause of action arose for the suit. The suit deserves to be dismissed.

The trial court found that the "assignment deed", as evidenced by Ext. B1 is bad in law and that the plaintiff is entitled to recover/possession of the plaint schedule property from the defendant with future profits. The trail court held that" Since the defendant is the manager and Kartha of the family, the suit is not bad for non joinder of other members of the family The suit was decreed for recovery of possession with future mesne profits, the rate of mesne profits to be decided at the time of execution. The defendant appealed to the District court. The learned District Judge, Tellicherry, in A. S. 348 of 1976 by his judgment dated 7th September, 1978 set aside the judgment and decree of the learned Munsiff and dismissed the suit, The learned District. Judge found that Ext. A8 (Ext. B1) is an ''assignment" and not a "surrender". It was held that the plaintiff cannot have any cause of action against the defendant as pleaded. The defendant was found to be in possession of the property. Negativing the contention, which was, for the first time argued before lower appellate court, to the affect that there was no consideration for Ext. A8, the learned District Judge found that Ext. A8 itself will show that consideration was present for the transaction. The District Judge adverted to the non-impleadment of the legal representatives of Madhavi Amma in O. A. 141 of 1970 (Ext. A12) and held that the order passed by the Land Tribunal should be ignored due to non-impleadment of the legal representatives of the deceased. It was not shown that the plaintiff was in any way misled to execute the document Ext. A8 (B1). On these premises, the learned District Judge set aside the Judgment and decree of the learned Munsiff and dismissed the suit. The plaintiff has come up in Second Appeal.

In the Appeal Memorandum. 7 questions of law have been formulated as substantial questions of law that arise for consideration in the second appeal. But counsel for the appellant. Mr. Nambiar, argued the following points.

(1) Ext. B1 is tainted by fraud. It cannot have any legal effect.

(2) Ext. B1 is in reality surrender of the right of the tenant. This is interdicted by S. 51 of the Kerala Land Reforms Act. On that ground, Ext. B1 should be ignored.

(3) There is no consideration for Ext. B1. It is a nullity. On that ground as well, the defendant cannot have any right based on Ext. B1.

We are afraid that none of the contentions urged by the apppellant''s counsel will prevail. The lower appellate court has definitely held that the plaintiff has failed to show that Ext. A8 is the result of any misrepresentation or fraud. Counsel was not able to point out any evidence available in the case to show that the document is, in any way, vitiated due to mis-representation or fraud. We repel this contention. Regarding the second contention, that Ext. B1 though styled as "assignment", is in reality a "surrender", counsel contended that regard being had to the fact that on 1-1-1970 the entire rights of the erstwhile landlord vested in the government, Ext. B1 should be viewed as a "sham" deed. There is no pleading to that effect. The only plea that was made was that the document was vitiated by fraud. On that aspect, no evidence is available. Counsel could not point out any evidence in that regard. It may be that the right of the landlord vested in the Government on 1-1-1970. Ext. B1 is labelled as a (assignment deed). No provision in the Land Reforms Act was brought to our notice, which interdicts the execution of an "assignment deed". Section 51 of the Act only interdicts a "surrender" in favour of a person other than the Government. We are unable to appreciate the contention of Mr. Nambiar, that though the document is styled an "assignment", it should be construed as a "surrender". The document is labelled as a well-known transaction. The document is of the year 1971. A decade before that date, legislation ushering in land reforms came into existence in this State, we have to understand the nature and purport of the deed in that context. It is idle to contend that it is without understanding the legal effect or import of the wood, the document was labelled so. Parties who entered into the deal at arms length should be deemed to have done so with deliberation and care. The nomenclature of the document is prima facie a valuable indication regarding the purport of the deed. It is relevant. It cannot be ignored. As held by Raman Nayar. J in the decision reported in Hussain Thahgal v. Ali (1961 KLT 1033 at P. 1041):

But the name is prima facie a valuable indication of the purport of a deed, especially when the transaction named is a well-known transaction carrying with it certain well-defined legal incidents; and, when the terms themselves are equivocal, the name may be conclusive.

It is a 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 inmost states of mind, thought, the terms meant. They may have meant different things, but still the terms or the language used in the deed should bind them ft is for the court to interpret such terms or language used in the deed. The Supreme Court held in the decision reported in Delhi Development Authority Vs. Durga Chand Kaushish, to the following effect:

The rule stated above follows logically from the Literal Rule of Construction which, unless its application produces absurd results, must be resorted to first. This is clear from the following passages cited in Odgers'' short book under the First Rule of Interpretation set out above.

Lord Wensleydale, in Monypenny v. Monypenny (1961) 9 MLC 114 at p. 146 said;

the question is not what the parties to a deed may have intended, to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregard of which often leads to erroneous conclusions.

Brett, LJ in Re Maredith. ax, P. Chick (1879) 11 Ch.D.731 at observed:

I am disposed to follow the rule of construction which was laid down by Lord Donman and Baron Parks.......... They said that in construing instruments you must have regard, not to the presumed intention of the parties, but to the meaning of the words which they have used.

The following principle also deserves to be noted in this connection:

The more correct mode of stating the rule of construction is, that technical words or words of known legal import must have their legal effect, even though the testator used inconsistent words, unless these inconsistent words are of such a nature as to make it perfectly clear That the testator did not mean to use the technical words in their proper sense, and so it is said by Lord'' Rcdosdale, Jesson v. Wright (Q).

per Mr. Boron Watson in Ann Roddy v. Francis Fitzgerald (1858) 6) HLC 823) at P. 843.

In the light of the above legal position, we are of opinion that on an over all view of the document, Ext. B1 is only an assignment, as it purports to be. An assignment is not interdicted by the Land Reforms Act. There is no infirmity therefor. Ext. B1 is capable of creating legal rights. It cannot be contended that Ext. B1 is in any way infirm. The second contention of counsel for the appellant also fails. Regarding the third contention, that the document is one without consideration, we find that the learned District Judge has repelled this contention in paragraph 7 of the Judgment. That apart, the question as to whether the document is vitiated due to absence of consideration, is ordinarily a question of fact. There is no pleading in this case that the document is void for want of consideration. No issue was raised. The matter was argued for the first time in the lower appellate court. We are unable to accept the plea of counsel that the question as to whether a document is vitiated for absence of consideration, is a pure question of law. If the matter has been specifically pleaded in the plaint, it may be open to the defendant to raise his plea by way of defence. It may be one of those documents envisaged by S. 25 of the Contract Act. There may be other defences as well. In such circumstances, we are not in a position to say that Ext. B1 is vitiated for want of consideration. We repel this contention as well.

No other plea was raised before us. We are of opinion that the judgment and decree of the learned District Judge is justified. No interference is called for. The Second Appeal is dismissed. There shall be no order as to costs.