Parayikandi Raghavan and Others vs Parayikandi Chirutha and Others

K.S. Paripoornan, J.—Plaintiffs 2 to 5 in O.S. No. 75 of 1982, Munsiff''s Court, Kuthuparamba, are the Appellants in this appeal. The first Plaintiff and the Defendants in the suit are the Respondents herein.

The following questions have been formulated as substantial questions of law in the appeal memorandum:

(a) Whether on a true interpretation of its various terms in Ext. A-2 document does not without any ambiguity show that it is only a maintenance arrangement and not a deed of partition?

(b) Could the subsequent conduct of parties evidenced by documents like Exts. B-15 to B-20 be relied upon to interpret Ext. A-2 as a deed of partition?

(c) Whether under the circumstances, the courts below were justified in treating Ext. A-2 as a deed of partition?

(d) Could the suit for partition filed by the Plaintiffs be treated as one bad for partial partition and could the suit under these circumstances liable to be dismissed on that ground?

(e) Is the question of bona fides relevant for consideration under the circumstances?

This Court ordered notice on 16th July 1987, though no specific substantial question of law was formulated at the time of admission.

The suit was one for partition and for separate allotment of Plaintiffs'' 21/56 shares. The Plaintiffs, Defendants 1 to 5, the father of Defendants 6 to 8 and father of Defendants 21 and 22 are members of Parayikandy tarward. A registered ''nischaya karar'', dated 31st October 1927. (Ext. A-2) was entered into between the members of the Parayikandy tarward; thereby the properties were divided into three schedules and set apart to three groups. The Plaintiffs alleged that it was for the maintenance of the members. The Plaintiffs contended that Ext. A-2 is only an arrangement for maintenance. According to the contesting Defendants (Defendants 17, 20 and 21), Ext A-2, dated 31st October 1927 is a partition. The crucial question that arose for ''consideration was whether Ext. A-2, dated 31st October 1927 is a partition or only a maintenance arrangement. If it was a partition deed the present suit for partition will not lie; if on the other hand, Ext. A-2 was only a maintenance arrangement, the suit was competent. The trial court held that Ext. A-2 is a partition deed and dismissed the suit by judgment, dated 14th June 1985. The Plaintiffs carried the matter by way of appeal before the District Court, Tellicherry. The appellate court concurred with the judgment and decree of the trial court and held that Ext. A-2 is a partition deed. It is thereafter, the Plaintiffs have filed the above second appeal.

I heard counsel. The only question argued at the time of hearing of the appeal was that Ext. A-2 is only a maintenance arrangement and not a deed of partition and that the courts below erred in looking into the subsequent conduct of the parties, evidenced by Exts. B-15 to B-20 to interpret Ext. A-2 as a deed of partition. The trial court held that there is clinching evidence in this case to show that the dominant intention of the parties at the time of execution of Ext. A-2 was to partition the properties. After referring to Exts. B-15 to B-20, and in particular Ext. B-20, wherein the Plaintiffs and Defendants 1 to 5 had admitted that Ext. A-2 is a partition deed, as opposed to the present plea that that is only a maintenance arrangement, it was held that the conduct of the parties, namely, the executants of Ext A-2, shows that Ext. A-2 is an outright partition. Ext. B-15 is, dated 28th October 1946, Ext. B-16 is, dated 19th July 1950, Ext. B-17 is, dated 24th August 1954, Ext B-18 is, dated 12th March 1958, Ext. B-19 is, dated 8th August 1958 and Ext. B-20 is, dated 13th February 1963. The deeds evidenced by Exts. B-15 to B-20 are transactions entered into by the members of the Parayikandy tarward, nearly 20 to 30 years after Ext. A-2. After adverting to this aspect, the lower appellate court held that nearly 20 years after Ext. A-2 and 30 years before suit, in Ext. B-15, dated 20th October 1946 the Plaintiffs had categorically stated and held out that Ext. A-2 is a deed of partition. They partitioned the properties obtained as per Ext. A-2 by Ext. B-15. This was followed up by Exts. B-16 to B-20. Ext. B-20 is a deed of assignment executed by the 1st Plaintiff in favour of the 1st Defendant. It is, dated 13th February 1963. It was executed only on the footing that Ext. A-2 is a deed of partition. Properties were conveyed by the 1st Plaintiff to the 1st Defendant obtained as per Ext. A-2. On these premises the lower appellate court held that Ext. A-2 is only a deed of partition and not a settlement for maintenance. The judgment and decree of the trial court were upheld. The Plaintiffs have come up in second appeal.

The only question canvassed at the time of the hearing is to the effect that the courts below erred in adverting to the Subsequent conduct of the Plaintiffs, evidenced by Exts. B-15 to B-20 to construe that Ext. A-2 is a partition deed. The question is whether the subsequent act or conduct of the parties can be looked into to understand the true meaning of the words used in a deed. Subsequent act or conduct of parties to a deed can be looked into only when there is a doubt or ambiguity regarding the true meaning of the words used in the deed--particularly when acts are done shortly after the date of the instrument. See The Godhra Electricity Co. Ltd. and Another Vs. The State of Gujarat and Another, . In Sappani Mohamed Mohideen and Another Vs. R.V. Sethusubramania Pillai and Others, , the Supreme Court has stated that in the case of ancient documents, the courts should be cautious to guard against warping of the issue by refenence to subsequent conduct of the parties or their representatives; which may vary for imponderable reasons, bona fide or otherwise. It appears that the above normal rule is subject to a rider, that even in the absence of doubt or ambiguity, subsequent acts and declarations of the parties are admissible as evidence, against the party who made them, and not in his favour.--(Snell''s Principles of Equity, 24th Edition, page 185). See also Shephard v. Cartwright 1955 A.C. 431.

In the light of the above position in law, I am of the view, that the courts below were justified in adverting to Exts. B-15 to B-20 and in holding that Ext. A-2 is only a partition deed. The courts below were justified in placing reliance, on the subsequent act or conduct of the parties, evidenced by Ext. B-15 to B-20, since they are admissible as evidence against, the party who made them.

The second appeal is without merit. It is dismissed.