Rajagopala Pandarathar vs K. Thirupathi Pillai and Another

Venkatasubba Rao, J.—The dispute turns upon the construction of the mortgage deed on which the suit was based. It has been conceded

before us that the decree directs the sale of property described in the mortgage deed. The 1st defendant contends that his residence or the

buildings constituting the palace are not included in the description contained in the decree, and cannot therefore be sold under it. On the other

hand, the plaintiff argues that these buildings should not be excluded from the sale. To deal with these respective contentions it is necessary to have

an accurate rendering of certain portions of the document which is in Tamil.

In the body of the document there is the following passage:

We have mortgaged to you for Rs. 15,000 the village of Kovilur which is included within the four boundaries given below and which is attached to

our Zamindari and which ancestrally belongs to us and is in our enjoyment....and which is capable of yielding an annual melvaram kists of Rs.

3,000.

So far the description is general and no portion of the Zamindari is excluded.

At the foot of the document is given a complete discription of the mortgaged property. I give below a translation of what occurs at the close of

the document:

Description of property.

The four boundaries of the village of Kovilur attached to Gandharvakota Zamin... ... ...

West of ... ... ... ...

North of ... ... ... ...

East of ... ... ... ...

South of ... ... ... ...

The village of Kovilur situate within these four boundary is: inclusive of Poromboke, Nanja 52 Velis 5 Mahs and 32 Ku lies: Punja 204 Velis 2

Mahs and 92 Kulies: the total of Nanja and Punja is 256 Velis 8 Mahs and 30 Kulies.

Excluding the lands sold by auction up to date in respect of the maintenance of my mother, the. remaining lands and all the rights and privileges I

possess in the waste lands, poromboke and other lands attached thereto, all kinds of trees, topes, wells, ponds, tank-bunds, fruit trees, wood

trees, foot paths, elevated and low portions etc., be they a little more or a little less have been given as security.

It is admitted that the palace buildings are in the village of Kovilur and are within the four boundaries mentioned above. But the general words in

the body of the document are qualified by the description given at the foot of it. There is a clear enumeration of what the village of Kovilur within

the aforesaid four boundaries consists of. There is no mention of the palace buildings. Although no doubt the village of Kovilur was stated in the

document to be the subject of the mortgage, the parties went further and described what according to them was the village of Kovilur which was

intended to be mortgaged and it seems to me that the words in the body of the, document must be read subject to the more precise description

given, which must b taken as controlling the general words occurring in the earlier portion.

I may state that it has not been argued on behalf of the plaintiff that the building is comprised within the total area mentioned of the Nanjah and

Punjah lands namely 256 Velies 8 Mahs and 30 Kulies. But the only argument advanced is that the palace buildings must be regarded as included

in the expression '' the remaining lands '' or '' poromboke and other lands '' or the words '' etc. '' I find it impossible to hold that the words '' the

remaining lands '' or '' poromboke and other lands attached thereto (remaining lands) '' can be regarded as including the residential building of the

Zamindar.

Turning to the words '' etc., '' they follow an enumeration of specific things beginning with ""all kind''s of trees ""having some characteristic, and the

words should be restricted to things of the same nature as those which have been already mentioned. In such a case the rule of ejusdem generis will

They and the residential building cannot be said to be ejusdem generis with the things already enumerated.

A being seized of a manor and other real estate in the County of M. mortgaged the last mentioned real estate to B; by a subsequent deed he

mortgaged to C ""all the hereditaments and premises comprised in the previous mortgage, and all other lands tenants and hereditaments (if any) in

the County of M ""of which he was seized. It was held that the manor did not pass, Vice Chancellor Wood observing as follows:

""I think the clear intent and purport must be held to be simply a sweeping in of other property ejusdem generis with the property which had been

so conveyed, if any there should be; certainly not to include a copyhold property or manorial rights in the property of a totally different character

from anything attempted to be conveyed or specified throughout the deed. ""Rooke v. Lord Kensington 25 L. J. (Ch.) 795.

In Abdul Hasan v. Ramzan Ali ILR 4 All. 381 it was held that in the absence of proof that a building belonging to the Zamindar was excluded

from sale, the sale of his ""rights and interests ""in the village passed such building to the auction purchaser. Similarly in Banki Lal v. Jagat Narain I.

L. R. 22 All. 168 it was held that a Kothi or other building situate within a Zamindari area would be included in and pass with the Zamindari unless

the contrary is shown by evidence of the circumstances from which it may properly be inferred that the building is not an appurtenance of the

Zamindari. In Asghar Reza Khan v. Mahomed Mehdi Hossein Khan ILR 30 Cal. 556 (PC) their Lordships of the Judicial Committee held that the

deed which contained no words of exception or reservation and was ample in point of language to pass the land on which the bazar was situated

did pass the same in the absence of words showing an intention to exclude it.

These cases are of little assistance to the plaintiff. It is no doubt true that the palace building is an appurtenance to the Zamindari but the rule

laid down in these cases is that there is the presumption in favour of the inclusion of such a building unless there is anything to show that it was

excluded expressly or by implication. (See ILR 4 All. 381 already referred to).

In Sakhawat Ali Khan v. Muhammad Abdul Karim Khan I.L.R(1915) . All. 59 it was clearly laid down that the doctrine that the sale of a

Zamindari included also buildings situated within the Zamindari is applicable only in the absence of evidence indicating an intention to exclude them

from the sale.

The determination of the question solely depends upon the right construction of the deed of mortgage, and in my opinion there is an indication

of an intention to exclude the residence of the Zamindar from the security.

There was a subsidiary argument advanced before us on behalf of the 1st defendant which related to certain objections to the terms of the

proclamation of sale. It has not been shown that the portion to which exception has been taken is likely to cause any prejudice to the 1st

defendant; and even apart from this he has not satisfied us that at this stage we can interfere with the portion of the order relating to the terms of the

proclamation.

In the result we allow the appeal to the extent of permitting the proclamation to be amended by excluding the palace building of the zamindar,

and in other respects the appeal fails. Each party will bear his own costs of this appeal.

Spencer J.

I agree. The specification of the mortgaged property at the foot of the mortgage deed obviously controls the words in the body of the deed

the village of Kovilur which is included within the undermentioned boundaries, which is attached to our Zamin, which belongs to us ancestrally and

is in our enjoyment, and which is made liable under Nagappa Chettiar''s decree and is capable of yielding an annual melvaram kist of Rs. 3,000.

If what was mortgaged was expressed as ""all that lies within the 4 boundaries""given I should hold that the family residence of the zamindar, or

palace as it is called, was included; but it cannot be part of the 256 Velis 8 Mahs and 30 Kulis of wet and dry fields, and as there is a sweeping

clause following the specification of cultivable lands, the other items should be taken to be ejusdem generis with those that are specified. I do not

think such an important item as a family residence can have been intended to be covered by the description given in these words ""the rest of the

lands, be they a little more or a little less, together with the waste lands, poramboke and other lands, all sorts of trees, topes, wells, ponds, tanks,

embankments, fruit trees, timber trees, footpaths, hills and dales, etc.""In this detailed description the omission of housesites, houses and other

superstructures is conspicuous. As for the cases quoted, none of them is on all fours with this. In Abu Hasan v. Ramzan Alt I.L.R.(1882) All. 381,

it was held that the killa (or fort) was part and parcel of the Zemindar''s rights and interests in the village of Hajipur. There was no specification of

what was meant by the village of Hajipur, as there is here of the village of Kovilur. In Banki Lal v. Jagat Narain ILR (1899) All. 168 , the

determination of the question whether the ""Kothi""(or house) passed by the sale turned principally on a consideration of what was attached in the

warrant of attachment. In Asghar Reza Khan v. Mahomed Mehdi Hossein Khan ILR 30(1903) C. 556 (PC) ""bazars""were included in the

operative part of the mortgage deed. So the Judicial Committee held that the interests of the defendant Zamindar in the Kutubgunge bazar passed

by the sale.

Ground 4. in the Memorandum of Appeal raises a question as to the terms of the sale proclamation. On this point no appeal lies. I agree with

the order proposed.