Sankaranarayana Reddiar vs Ramaswami Reddiar and Another

M. Natesan, J.—The dispute in this second appeal relates to an extent of 5 cents of land. The defendant who has failed in both the Courts

below, is the appellant. One Subbaraya Reddiar was the owner of S. No. 2215/5D1 of an extent of 1 acre and 10 cents in Moolaikaraipatti

Panchayat limits. Under Exhibit A-1 dated 4th November, 1951, he othied an extent of 90 cents in S.No. 2215/5D1 in favour of one Subbammal

and another for Rs. 1,000. Under Exhibit B-1, dated 25th September, 1954, the defendant purchased an extent of 25 cents in the southern portion

of the property for a sum of Rs. 700. The plaintiffs have purported to purchase under the registered sale deed Exhibit A-2 dated 14th November,

1960 the extent of 90 cents, usufructuarily mortgaged to Subbammal and another, for a sum of Rs. 1,500. Under Exhibit A-3 dated 17th

November, 1960, the plaintiffs discharged the usufructuary mortgage. The plaintiffs have filed the suit claiming that they are entitled to the entire 90

cents in the north and the defendant''s claim for 25 cents in the survey field is untenable. According to the plaintiffs, the defendant is entitled only to

20 cents in the south and no more. The plaintiffs charge the defendant with attempting to encroach to an extent of 5 cents on land which they

redeemed from the usufructuary mortgagees, by virtue of their title to 90 cents under the sale deed Exhibit A-2. The Courts below have granted

the plaintiffs declaration of their title to the entire go cents in the north in S.No. 2215/5 D1 and issued the consequential injunction prayed for. The

defendant''s purchase has been limited to 20 cents.

There is no dispute that the total extent of S. No. 2215/5 D1 is 1 acre and 10 cents, and Subbaraya Reddiar has only this extent in his

enjoyment. It is the finding of the Courts below that the northern 90 cents out of 1 acre and 10 cents had been in the possession of the usufructuary

mortgagees under Exhibit A-2 till redemption. At the time of the sale in favour of the defendant, Subbaraya Reddiar had been in possession of only

the remaining 20 cents in the south. The case of the defendant that the land of an extent of 25 cents in the south was measured and possession of it

was given to him, has been found against, quite properly, as the mortgagees had possession of 90 cents. The ultimate observation of the appellate

Court shows the approach of the Courts below to the determination of the case. It is observed : ''D.W. 1 (defendant) confesses that at the time of

Exhibit B-1, Exhibit A-1 was still subsisting, that the in mortgagees were in possession of the 90 cents (covered by Exhibit A-1) and that remaining

property was lying vacant at the time of his purchase. This admission...conclusively establishes that Exhibit A-1 property was in the possession of

the mortgagees and under their cultivation and that it is exactly this property of the northern 90 cents which Subbaraya Reddiar sold to the

respondent under Exhibit A-2, to the exclusion of the remaining land of 20 cents, which was vacant and which he sold to the appellant as per

Exhibit B-1....'' The Court below would hold that, notwithstanding the fact that Exhibit A-2 is later in point of time and fact than Exhibit B-1, it

takes precedence over Exhibit B-1. The emphasis which the Courts below would place is on the fact that the entire extent of 90 cents was under

the usufructuary mortgagees and Subbaraya Reddiar could have sold free of encumbrance, only the remaining 20 cents.

Learned Counsel for the appellant contends that the Courts below have not borne in mind the principles applicable in a case of this kind. The

appellant has purchased the specific extent of 25 cents in the south. His vendor was entitled to convey that extent to him, notwithstanding that there

was an outstanding encumbrance over a part of it, and the same was in the possession of the usufructuary mortgagees. Learned Counsel submits

and rightly that, when a specific extent of property is conveyed and the vendor has a right to make the conveyance, the title of the purchaser to the

property is absolute. The purchaser can pursue his remedies against vendor if there is an encumbrance over a part of the property and part of the

property is not given immediate possession. But the subsequent purchaser cannot, on that account, contend that the vendor could not convey that

part of the property. The short question for consideration is whether the vendor Subbaraya Reddiyar intended to convey full 25 cents. There could

be no question about the competency of the vendor to convey the 25 cents in the south. It may be that the vendor was not really in a position to

give possession of the 5 cents, but that would not affect his right or title to convey 25 cents. The defendant has admittedly purchased the property,

of the extent of 25 cents for putting up a cinema theatre. The sale deed Exhibit B-1 makes no reference whatsoever to the usufructuary mortgage.

The preamble to the sale deed and the operative portion of it do not describe the property sold. In the operative portion the property sold, is

referred to as the land described in the schedule to the deed. So it is the schedule of property that sets out the property sold. For the plaintiffs,

reliance has been placed on the recital in Exhibit B-1 that ''''having received the full consideration as hereunder I have now left for your enjoyment

the land described in the schedule"", and also the recital '''' I declare that there is no encumbrance on the schedule land."" I shall now set out the

schedule itself : "" In Moolakaraipatti Panchayat Board limits, Tirunelveli District Moolakaraipatti Sub Registration District, Moolakaraipatti village,

Ayan Punja S. No. 2215/5 D 11 acre and 10 cents : within this, in the south 25 cents, boundaries whereof : south of the land retained by me and

well ; west of Venkatasubbaraya Chettiar''s land : north of Poromboke path way and east of your people''s land, twentyfive (25 cents whole.

There is no dispute above the eastern, western and so them boundaries of the property sold. The extent of the property sold, namely, 25 cents,

has been emphasised in the schedule thrice, twice in numerals and once in letters. But according to the plaintiffs the defendant is entitled under this

document only to 20 cents. The difficulty is about fixing the northern boundary of the property sold. If the boundaries are specific and clear they

could and so would govern. Here the northern boundary cannot be said as clearly defined : as a boundary line it is imprecise. Whether the northern

boundary line runs so as to give the vendee 25 cents or runs as to limit it to 20 cents is the question. As it is, it can run anywhere within the field,

and still be true to its description. In the schedule there are three descriptions given for identifying the property:

(1) its location with reference to the entire survey field in the south,

(2) its extent in the south,

(3) its boundaries.

It is contended for the plaintiffs that the property sold to the defendant is unencumbered property and that defines the location of the northern

boundary. So we have to consider first whether the description of the property in the body of the document as unencumbered property, has to

prevail and control the interpretation of the schedule.

In Raja Srimathu Muthu Vijiya Raghunatha Doraisingam alias Gowri Vallabha Thevar Avergal, Zamindar of Sivaganga, represented by the

Estate Collector Vs. Karuthan Ambalam and Others, , it is said that, where the question is as to the actual extent of land that was conveyed by a

deed, whether the whole land included in the boundaries which are mentioned in the description in the deed, or only the particular area set out

therein, it is not premissible, whatever the intention of the parties in fact may have been, to receive extraneous evidence in explanation of the terms

of the deed, where the terms of the deed are clear and unambiguous. But, where the terms of the deed are not clear and unambiguous and there is

some inconsistency between the different parts of the same documents, the only way of solving the ambiguity if any, is to look at the surrounding

circumstances, namely, the circumstances which led to the grant and the circumstances subsequent to the grant in order to discover whether any

portion of the instrument amounts to a falsa demonstration The terms of the document have to govern when they are clear and evidence can not be

let in which goes against the unambiguous terms of the deed. The Court has to go by the deed, and, if only there is ambiguity in the deed and the

descriptions conflict it could be examined by reference to surrounding circumstances, to drop any part of the description as falsa demonstratio. If

on a reasonable interpretation the grant could be localised, that must be adopted. The rule falsa demonstratio nan nocet (a false description does

not harm or does not vitiate the deed) is subject to this that words which form an essential part of the description can never be rejected. Lord

Sumner painted out in Eastwood v. Ashton (1915) A.C. 900, that the latin maxim is deficient and he would add to it "" cum de corpore constat

when the thing is described with certainty. The principle is that when there is an adequate and sufficient definition of what was intended to be

passed by a deed, any addition to the definition will not vitiate it. In Eastwood v. Ashton (1915) A.C. 900, Lord Parker observed that there is no

general rule as to which of two inconsistent descriptions is to prevail and the doctrine of falsa demonstratio is useless, unless and until the Court has

made up its mind as to which of the two or more conflicting descriptions ought, under the proved circumstances of the case, to-be considered to

be the true description. There can be no apriori assumption that, where extent and boundaries are given, the extent must be discarded. The Court

has to find out from all the circumstances which is the essential part of the description and unambiguous. In this case, the reference to the property

as unencumbered property in the body of the document giving an assurance as to the absence of encumbrance, cannot affect the description of the

properly conveyed. In more than one place in the body of the document, it is specifically stated that the property conveyed is set out in the

schedule. The body of the document does not purport to describe the property conveyed for the purpose of identification. The reference to the

absence of encumbrance in the body of the document in the context of the recital is a covenant against encumbrance and not descriptive of the

property sold. u/s 55 (1) (g) of the Transfer of Property Act, the seller is bound to discharge all encumbrances on the property then existing, when

the property is sold not subject to encumbrance. The seller is bound to give, on being so required, such possession of the property as its nature

admits, and in this case the vendor is bound to secure to the, vendee actual possession of the property sold. If there is breach of obligations in this

regard, the vendee may have his remedy against the vendor. If they are conditions of the contract he may at his option in a given case avoid the

contract. True, during the subsistence of the usufructuary mortgage the vendee may not be able to get possession of his five cents, unless the

mortgagees are prepared to permit him to redeem piecemeal the five cents. Or, the vendee may redeem the entire extent in his right as co-

mortgagor : he may compel his vendor to redeem and secure to him possession of the five cents. But all that need not deter title to the five cents

passing to the vendee. It must be noted that the vendor does not purport, by his deed, topi ace the vendee in possession of the entire property.

The vendor says in the document that he has left the property conveyed for enjoyment by the vendee.

Coming to the schedule which in this case has to govern the determination of the question as to the property intended to be conveyed, of the

four boundaries as already pointed out the northern boundary is uncertain and not specific. The northern boundary is referred to as ''''land retained

by me and the well."" The absence of any reference to the northern boundary land as property in the possession of the usufructuary mortgagees or

property which the vendor had mortgaged, is a matter of considerable significance. The vendor has not made the property mortgaged specifically

the northern boundary of the property conveyed. It is nobody''s case that, between the property conveyed under Exhibit B-1 and the property

othied under Exhibit A-1, there was any strip of land retained by the vendor. Even if more than 25 cents had been conveyed under Exhibit B-1, the

northern boundary can still be land retained by the vendor. There is no evidence on record--and no point made even in argument that the reference

to the well in the northern boundary has any significance with reference to the question at issue. Its location has not been brought out in the record

and so has to be ignored. We have it that, while the western, eastern and southern boundaries are definite and certain, the northern boundary is

uncertain. With the northern boundary as it stands, the land conveyed under Exhibit B-1 by boundaries can be 15 cents or 50 cents. So for

determining the property conveyed, of the three descriptions, manifestly the description by boundaries by itself is inexact and not helpful. The

description by area taken with the boundaries, and location of the part in the south of the field, is certain and, definite. In the extreme south the

vendee is entitled to 25 cents in the survey number in question. One has only to measure out 25 cents at the southern extremity. The boundaries

specified give a general description of the property and are not helpful in limiting it in the north. But, with the extent specified, the property can be

localised on the ground with certainty and without any difficulty. If the property conveyed is sufficiently defined by a general description, say by

boundaries and it is clearly identifiable therefrom no special description is required and if employed may be useless. But, where the general

description indicates, as in this case, more than one possibility and the special description indicates which of the possibilities is meant, the special

description restricts the general one and makes it specific. Where the description is general and also special, those parcels of land will pass which

satisfy both the descriptions. Bacom in his Law Tracts, Rule 13, lays down:

But if I have some land wherein all these demonstrations are true and some wherein part of them are true and part false, then shall they be intended

words of true limitation to pass only those lands wherein all those circumstances are true.

In this case if the vendee gets 25 cents in the south, then every part of the description, description by boundaries, description by direction and

description by extent, will be satisfied. The property conveyed will be true to boundaries and true to extent.. If the contention for the plaintiffs is

accepted, then the property conveyed will not be true to extent. The assumption that the vendor intended to convey only property not

usufructuarily mortgaged is merely a supposition. When effect could be given to the deed to its fullest extent, I see no reason to limit the

conveyance by relying upon a supposition. As pointed in Hussonally v. Tribhowandas AIR 1921 P.C. 40, the presumption is that, in fixing the

price, regard was had on both sides to the quantity which both supposed the estate to consist of. Of course, there may be considerations which

may rebut or weaken the presumption. Here the property was purchased admittedly for putting up a cinema theatre and the vendor and vendee

must have had some regard to the extent of land to be conveyed. The deed indicates that no thought had been given to the usufructuary mortgage,

when it was executed. If the intention was to exclude property subject to the usufructuary mortgage, describing the boundaries the executant could

well have referred to the usufructuary mortgage and the possession by the usufructuary mortgagees of the land in the north. The absence of any

such reference is indicative of the fact that the usufructuary mortgage was not the determining factor with reference to the conveyance. There is also

this fact that the usufructuary mortgage being by a registered instrument, it can be presumed that the vendee had knowledge of the subsistence of

the usufructuary mortgage over an extent of 90-cents in the survey field in question.

The plaintiffs are purchasers of 90 cents six years after the purchase by the defendant. May be that the plaintiffs have redeemed the entire 90

cents even though title in respect of five cents had passed to the defendant. By their purchase they became co-owners of the equity of redemption

along with the defendant. As co-mortgagors who have redeemed the usufructuary mortgage, the plaintiffs could claim contribution from the

defendant and contend, if they had possession of the five cents, that their possession cannot be disturbed till the contribution is paid. The defendant

may have his remedy against his vendor on the covenant against encumbrance. One thing is clear : the plaintiffs have title only to the northern 85

cents in the survey field which their vendor was entitled to after the conveyance under Exhibit B-1. The defendant is entitled to the 25 cents in the

south which he purchased under Exhibit B-1. The plaintiff, therefore, cannot have the declaration prayed for or a permanent injunction against the

defendant on the basis of their title to 90 cents in the Survey field in question. The suit as framed is misconceived. In the result, the decrees and

judgments of the Courts below are set aside and the suit dismissed, leaving the parties to seek appropriate relief, in accordance with the rights

indicated, in other proceedings. The second appeal is allowed. The parties will bear their respective costs throughout.