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Judgment
Patanjali Sastri, J.—The question raised in this appeal relates to the true construction of what has been called a "" release deed "" executed on
the 6th of May, 1890, by one Sundarapandiya Naicker and Kamalu Ammal, the widow of the previous zamindar of Bodinaickanur. The appellants
are the successors in title of Sundarapandiya Naicker and the first respondent (hereinafter referred to as the respondent) is the present zamindar of
Bodinaickanur. The question is whether a property known as Mallingaswami Hill comprising hill and forest tracts of 1,500 acres in 6xtent passed
to Sundarapandiya Naicker under the release deed which is marked as Ex. XLVIII in the case. The facts which led to the execution of this
document may be briefly stated The previous zamindar of Bodinaickanur died in 1888 and disputes arose regarding succession to the zamindari
between his widow Kamalu Ammal, the respondent''s father who claimed the estate as the undivided coparcener of the late zamindar and
Sundarapandiya Naicker who claimed it as his Uncle. The disputes were eventually compromised and Ex. XLVIII embodies the terms settled
between Sundarapandiya and Kamalii. The terms of the settlement between Kamalu and the respondent''s father are not material for the purpose
of this appeal and need no mention here. The result of the settlement under Ex. XLVIII so far as it is material for the present dispute was that one
of the twelve villages comprised in the zamindari of Bodinaicka-nur called Dombucheri was given to Sundarapandiya with full and absolute rights
and the remaining eleven villages were taken by Kamalu, each party giving up and releasing all his or her rights in respect of the properties allotted
to the other. The first column of the schedule attached to the deed indicated the properties which were to be enjoyed by Kamalu and the second
column thereof contained a description of Dombucheri village assigned to Sundarapandiya Naicker under the compromise. Kamalu died in
January, 1921 and the respondent herein succeeded to the zamindari. Nearly twelve years thereafter when the period of limitation was about to
expire, he brought the suit out of which this appeal arises for recovery of Mallingaswami Hill alleging that it did not pass to Sundarapandiya under
Ex. XLVIII and the appellants were in unlawful possessiono thereof.
Both the Courts below have found that Mallingaswami Hill was no parcel of the grant to Sundarapandiya and accordingly decreed the suit. A
plea of title by adverse possession appears to have been raised in the trial Court and the learned Subordinate Judge had to investigate the question
of possession elaborately and record findings upon it. Though this plea was given up in appeal as it was obviously untenable the suit having been
brought within twelve years of the widow''s death, the investigation and findings as to possession of the disputed property have a material bearing,
for reasons which will be presently indicated, on the question for determination in this appeal, namely, whether Mallingaswami Hill was parcel of
the grant under Ex. XLVIII on a true construction of that deed.
Before considering this question, I will mention, only to dismiss, the suggestion of Mr. Govindarajachari, the earned Counsel for the respondent,
that this Court cannot interfere in second appeal with the concurrent findings of the Courts below on the question of parcel or no parcel as it is one
of fact and not of law according to Jessell, M.R., in Francis v. Hayward (1882) 22 Ch.D. 177 . It may be so in one sense, but it does not follow
that, when its determination depends on the true construction of a deed, this Court is precluded from considering it even under the limitations
imposed by Section 100, Civil Procedure Code. As observed by Lord Wensleydale in Waterpark v. Fennell (1859) 7 H.L.C. 649 : 11 E.R. 259:
Whether parcel or not is often said, but not with strict propriety, to be a question for the jury. I apprehend that the true rule is perfectly well settled
and is fully explained in Sir James Wig-ram''s excellent treatise on the subject. The construction of a deed is always for the Court.
I will now turn to the language of the deed. The material provisions are:
The aforesaid Kamalu Ammal Ayergal shall give up Dombucheri village, which is attached to the Bodinaickanur zamindari now enjoyed by the
aforesaid Kamalu Ammal Avergal and which is described in column 2 of the schedule herein, together with all the incomes therefrom in favour of
Sundarapandiya Naicker Avergal, so that he may enjoy the same with full rights from this day with powers of alienation, such as gift, exchange and
sale from con to grandson and so on in succession. The aforesaid Kamalu Ammal herself shall pay the peshkush and road tax of the said village
without the concern of the said Sundarapandiya Naicker Avergal (paragraph 1).
The aforesaid Kamalu Ammal and her heirs shall enjoy with full rights with powers of alienation, such as gift, exchange and sale, all other zamin
villages, pannaivagaira properties and wealth men-tioned in the said first column excepting the Dombucheri village (paragraph 3).
Whatever right the said Kamalu Ammal may have to the Dombucheri village is given up in favour of Sundarapandiya Naicker Avergal as stated
above. The said Kamalu Ammal Avergal hereby gives up all such rights in favour of the said Sundarapandiya Naicker Avergal and his heirs go that
they may enjoy them with full rights with powers of alienation such as gift, exchange and sale"" (paragraph 4).
At the end is ''description of property."" in three schedules. The first schedule, after enumerating the villages comprised in the zamindari states:
All other eleven villages except Dombucheri village mentioned in column: 2 of the schedule herein and pannai properties mentioned in column 3,
inclusive of all the hamlets, villages, patties, mountains, hills, ponds, rivers, streams, channels, trees, groves, forests, countries, cities, mounmtains,
hill produces and wastes, besides this the said Bodinaickanur zamin containing all kinds of wealth.
The second schedule sets out:
Dombucheri village which is situated within the following boundaries, namely, to the south of the boundary of Kodangipatti, to the east of the
boundary of Silamalai, to the north of the boundary of Kuchanur and to the west of the boundary of Uppukottai.
It will be seen from these extracts that the intention of the parties was that Dombucheri village should pass to Sundarapandiya Naicker and the
rest of the Bodinaicka-nur zamin should continue to be enjoyed by Kamalu Ammal. The subject-matter-of the gift is referred to in paragraph I
which Contains the operative words of the instrument, as "" Dombucheri village which is described in column 2 of the schedule herein together with
all the incomes therefrom,"" and if the boundaries mentioned in the second column of the schedule correctly delineated Dombucheri village, there
would be no difficulty whatever as the disputed property would have clearly passed to the grantee. But the lower Courts have found by reference
to Survey Maps, Plans and Registers prepared in the year 1875 and 1876 that Mallingaswami Hill did not form part of Dombucheri village and
had been included in the village of Rasingapuram lying to the south of Dombucheri. This finding was not attacked before me by the learned
Advocate-General who appeared for the appellants. It has to be explained how this finding gives rise to the problem which has been keenly
debated upon in this case. From the plan, Ex. C-2, it will be seen that the description in the second column of the schedule that Dombucheri
Village lies to the north of the boundary of Kuchanur does not agree with the finding of the; lower Courts that Mallingaswami Hill did not form part
of Dombucheri village. For, in that case the limits of the village would stop far short of the boundary of Kuchanur which lies much farther to the
south. The proper description of the southern boundary of Dombucheri would then have to be "" to the north of the boundary of Rasingapuram."" -
....
Mr. Govindarajachari argued that the description by boundaries should be rejected as being incomplete and perfunctory for, if the appellant''s
case be trues the correct description would be, apart from the northern boundary about which there is no dispute, "" to the east of Silamalai,
Rasingapuram, to the north of Sankara-puram and Kuchanur and to the west of Kuchanur, Kulayanur and Uppukottai."" This, no doubt, would be
the full description by boundaries without leaving any gaps, if Dombucheri included Mallingaswami Hill. But it does not follow, to ""my mind, that
because of gaps in the description of the eastern, southern and western boundaries, the description by boundaries should be rejected as unreliable;
for, description by boundaries leaving gaps here and there is by no means uncommon. Nor has it been explained why Kuchanur was mentioned at
all as the southern boundary of Dombuchery and why Rasingapuram was not indicated as such boundary, if Mallingaswami Hill was not intended
to be included in the grant. I am unable, therefore, to reject the description by boundaries as of no significance and regard the instrument as
involving no ambiguity, latent or patent as Mr. Govindarajachari invited me to do.
It was then suggested that if the description by boundaries must also be taken into consideration, it should be regarded as a general description
and the name as a specific description and effect given to both by treating the specific as restricting the general. My attention was drawn in this
connection to para, 360, Volume 10 of Halsbury''s Laws of England, and the illustration there given. I cannot agree that either the principle or the
illustration is applicable here, for the schedule to Ex, XLVIII was obviously intended not as a general description of what was specifically
described before but to describe more particularly what was referred toby mere name in the body of the instrument.
The case,; in my opinion, is therefore one where, in the light of the finding of the Courts below, the two parts of the description, namely, the
name arid the boun-dairies do not apply accurately to the same property,; though the language used is plain in itself Inother words, we have here
an instrument with a latent ambigulty in the description of the subject-matter of the grant and the Court has to arrive at the true meaning and
intention of the parties, aided by such established rules of construction as are properly applicable to the case and such extrinsic evidence of
surrounding circumstances as may throw light on the issue (See Section 95 of the Evidence Act.)
The learned Advocate-General for the appellant complained that the lower Courts regarded the geographical, connotation of ""Dombucheri
according to their finding, as conclusive on the question of the intention of the parties and rejected the description by boundaries as a mistake ""by
wrongly applying the maxim falsa demonstratio non nocet without properly considering the conduct of the parties to see how they themselves
understood and acted upon the instrument, according to the well known rule of construction contemporaea expositio. This complaint appears to
me to be well founded. For, I cannot help observing that the principle of falsa demons-tratio has been resorted to. by the Courts below all too
readily for rejecting the description by boundaries in the schedule as a false description. It has to be borne in mind, in applying this rule that it is not,
strictly speaking, a rule of construction though it is sometimes referred to as such. For, it is a rule that enables a Court to disregard part of a
description as false and inadvertently inserted only after it has reached the conclusion that the property conveyed was that indicated by the other
parts of the description. As observed by Lord Parker of Waddington in Eastwood v. Ashton, L.R. (1915) A.C. 900 .
Where there are several descriptions which, when evidence of surrounding facts is admitted, are not consistent with one another, I do not think that
there is any general rule by which the Court can decide which description ought to prevail. But ceteris paribus, it would seem that the more detailed
and precise the description the more likely it is to accord with the real intention of the parties. It was suggested that help might be derived from the
maxim falsa demonstratio non nocet. It is clear however that this maxim is useless unless and until the Court has made up its mind as to which of
two or more conflicting descriptions ought under the circumstances to be considered the true description."" It is thus clear that all rules of
construction properly applicable to the case should be called in aid to ascertain the true meaning of the deed and it is only when they are exhausted
and it is still found not possible to reconcile the inconsistent parts of the description, that the maxim can be invoked as a last resort to justify the
rejection of some part of it. Having regard to the fact that, in the present case, the Court is called upon to arrive at the true intention of the parties
to an instrument nearly half a century after it was executed, one of the most important aids to the solution of the problem is it seems to me, to see
how the parties themselves have understood and acted upon it.
In Waterpark v. Fennell (1859) 7 H.L.C. 649 : 11 E.R. 259 already referred to above, the question was whether a description of the premises
demised as "" the village of Scarnaglowrane""'' included the mountain of Scarnaglowrane as well as the collection of houses or only the collection of
houses without the mountain. Lord Wensleydale observed at page 684, ""These deeds, (that is, ancient deeds) are to be construed by the evidence
of the manner in which the subject has been possessed or used Lord Hardwicke, with reference to the construction of ancient grants and deeds,
says, that there is no better way of construing them than by usage, and contemporanea expositio is the best way to go by. That was in the case of
the Attorney General v. Parker (1747) Ves. 43 : 13 Atk. 576 : 26 E.R. 1132 Lord St Leonards follows in Attorney-General v. Drummond (1842)
1 Dru. & War. 368 and says one of the most settled rules of law, is, that you may resort to contemporaneous usage for the meaning of a deed.
''Tell me what you have done under such a deed, and I will tell you what the deed means''.
In Watcham v. East Africa Protectorate (1919) A.C. 533 their Lordships of the Judicial Committee considered the question whether the rule
of contemporanea exposilio could have any application to the construction of modern instruments, and observed, after a discussion of certain
decisions in England thus,
These cases, their Lordships think, establish the principle that even in the case of a modern instrument in which there is a latent ambiguity, evidence
may be given of user under it to show the sense in which the parties to it used the language they have employed, and their intention in executing the
instrument as revealed by their language interpreted in this sense."" Their Lordships approved and quoted the observations of Tindal, C J., in. Doe
v. Ries (1832) 8 Bing. 178 : 131 E.R. 369.,
If the words of the instrument be ambiguous, we may call in aid the acts done under it as a due to the intention of the parties.
The proposition was reiterated, in Laprairie Common Corporation v. Campaigne De jesus (1921) 1 A.C. 314 Mti Govindarajachari
endeavoured to distinguish these cases by pointing out that the language of the instruments, and the circumstances to which these decisions related,
were entirely different but I fail to see how that affects the validity; of the principle of construction laid down therein and why it should not be
applied as an aid to the ascertainment of the true meaning of the parties to the instrument now under consideration. My attention was drawn to the
remark of the Privy Council in Raghoji Rao Saheb v. Lakshman Rao Sahib (1912) 23 M.L.J. 383 : ILR 36 Bom. 639 (P.C.)
Contemporanta expositio as a guide to the interpretation of documents is often accompanied with danger, and great care must be taken in its
application.
This note of caution sounded by their Lordships is however, no reason for not applying it if the circumstances of a case call for or justify its
application.
Mr. Govindarajachari next suggested that the application of this principle should be restricted to the conduct of the grantor alone and he relied,
for this purpose on Swaminatha Mudali and Others Vs. M. Saravana Mudali and Others, , where Sadasiva Ayyar, J:, in distinguishing the decision
in Raghoji Rao Sahib v. Lakshman Rao Sahib (1912) 23 M.L.J. 383 : ILR 36 Bom. 639 (P.C.) said,
Their Lordships (in the case before them) restrict the application of the doctrine of contempo-ranea expositio to the facts and conduct of the
grantor, beginning contemporaneously with the grant and continued for a long course of years. Here we are asked to extend that doctrine to
declarations of the grantee''s successor made forty years afterwards behind the back of the grantor.
I am well unable to read these remarks in the sense suggested. As I understand them, the learned Judges were drawing a distinction, not
between the conduct of the grantor and that of the grantee, but between acts and conduct contemporaneous with the grant and declarations made
forty years afterwards. The rule of contem-poranea expositio. has never been understood to be applicable only to the acts of the grantor nor is
there anything in the reason of the rule to restrict its application in the manner-suggested. The later decision of the Privy Council in Watcham v.
East Africa Protectorate (1919) A.C. 533 already referred to, laid down the principle in words of sufficient amplitude to make the acts and
conduct of the grantee also relevant for the purpose of its application.
It was further contended that the rule can be applied, if at all, only if the doubt as to the effect of the instrument remains unsolved by all other
rules of interpretation; and reference was made to Halsbury''s Laws of England, Volume'' 10, paragraph 343 where it is observed,
If, after other methods of interpretation have been exhausted, there remains a doubt as to the effect of the instrument, it is permissible to give
evidence of the acts done under it as a guide to the intention of the parties.
This statement is no doubt couched in language which lends some countenance to the contention advanced, but that it means no more then that,
in cases of ambiguity evidence of acts done under an instrument is admissible as a guide to the intention of the parties appears from the decisions
referred to in the footnote as supporting the proposition, these being Watcham v. East Africa Protectorate (1919) A.C. 533 Laprairie Common
Corporation v. Compaigne De Jesus (1921)1 A.C. 314 and the cases therein mentioned. These decisions, when carefully examined, do not
support the proposition in the form in which it is stated in the text and do not recognise any priority in the application of the various rules of
interpretation including the rule of contemporanea expositio; nor is it easy to see how in principle there can be any such priority in operation as
between these rules, for they are only clues to the true meaning of ambiguous instruments and must be applied as the circumstances of a particular
case may appropriately require or suggest.
I was next referred to Ex parte Jardine, In re Mc Manus (1875) L.R. 10 Ch. App. 322 Francis v. Hayward (1882) 22 Ch.D. 177 Roe v.
Lidwell (1859) 11 Ir. C.L.R. 320. Hardwick v. Hardwick (1873)L.R. 16 Eq. 168 as authorities for the view that in a conflict between a
description contained in a deed and that contained in an inventory, map or schedule annexed to the deed, or between a description by name and
description by ''boundaries, the former should be held to prevail. These decisions do not lay down any hard and fast rule and are largely based on
their peculiar facts which were not only dissimilar from those of the present case but did not admit of the application of the rule of contemporanea
expositio.
I am, therefore, clearly of opinion that this is a case where the rule of contemporanea expositio can and should be applied to ascertain the true
intention of the parties as to whether the disputed property was also conveyed under the release deed, Ex. XLVIII.
The question thus arises, as to how the parties themselves understood this document and gave effect to it. In the plaint, it was definitely alleged
(paragraph 6) that Sundarapandiya Naicker did not become entitled to the property in dispute under the release deed and "" possession of the same
was also not granted to him but continued as before with the zamin."" In paragraph (1921) 1 A.C. 314 it was alleged, "" The plaintiff''s father died in
about February, 1901, long subsequent thereto Sundarapandiya Naicker''s son the father of defendants 1 and 2 herein began to trespass on
portions of the suit property."" The appellants in their written statement denied the allegation that possession of the suit property was not granted to
Sundarapandiya Naicker. and that it continued as before with the zamin (paragraph 6) and also averred--"" That it was placed in possession of
Sundarapandiya Naicker immediately after the transaction on the 6th of May, 1940,"" The pleadings in the, case thus clearly indicate that the parties
to the suit realised the importance of the question whether the grantee Sundarapandiya Naicker got and held possession of the disputed property
under the deed, as affording a clue to the true meaning of the grant. But for some reason or other, the learned trial Judge, did not at all consider the
case from this point of view, though, as already observed, in dealing with the plea of title by prescription raised by the appellants, he examined at
great length the evidence relating to possession of Mallin-. gaswami Hill from the time of the deed till the institution of the present suit. The learned
Judge analysed the evidence and recorded findings with reference to four distinct periods following the execution of the deed. Referrring to the
documents covering the earliest period from 1891 to 1898, he observed (paragraph 22)--
They show that the zamindar (i.e., Sundarapandiya who called himself the Zamindar of Dombucheri after the grant) had a forest establishment
consisting of maniam and watchers, that orders were issued to them, that there was also a public notification constituting the Mallingaswami Hill
forest as - a reserve forest; that licenses for quarrying stones and for thorns etc. were issued and grazing, fees also collected. On the plaintiff''s side
during this period, there is hardly any documentary evidence.
As regards the second period from 1899, to 1902, he found--
That as per the docupients and the oral evidence, both sides claim to have been in possession of the Mallingaswami Hill for and and that there
were acts of possession on the part of each.
Then in 1902, there was an usufructuary mortgage of Dombucheri village to one Peer Meera Levai Rowther by a registered mortgage deed,
Ex. XLIX executed by the then Dombucheri Zamindar and this clearly included Mallingaswami Hill also. This mortgage was redeemed in 1909 and
during its subsistence, the learned Judge summarised the evidence thus--
The documents show the issue of licenses for removal of produce from the Mallingaswami Hill forest, lease of the minor produce, the inclusion of
the forest income in the land cesss statement and report by the forest maniam to the usufructuary mortgagee. The evidence on the plaintiff''s side
during this period is rather sparse.
The learned Judge next examined the evidence relating to the period from 1969 to 1921 when Kamalu Ammal died and came to the
conclusion--
Comparing the evidence adduced on either side with that of the other, it is certainly noteworthy that the evidence is more in point of quantity oh the
defendant''s side.... The enjoyment on the part of each is likely to have been'' of various portions of Mallingaswami Hill and the forest. It is over
twenty square miles in area which easily facilitates enjoyment by the two rival"" parties in different localities.
It will be seen from these extracts that during the period immediately following the execution of the deed which is obviously the most important,
if not the only relevant period for the application of the rule of contemporanea expositio, Sundarapandiya Naicker was clearly in possession; and
enjoyment of the disputed property and that the allegation in the plaint that possession of the same was not granted to. Him but continued as before
with the zamin is false. The fact that subsequently in 1898 and again in 1912 there were conflicts between the parties which resulted in certain
criminal proceedings and that, thereafter Kamalu Ammal is also shown to have exercised some acts of possession over parts of the disputed
property till her death in 1921 can have no bearing upon the conclusion as to possession during the earliest period (1891-1897). But it is said that
this finding cannot be used for the purpose of interpreting the deed as the learned Judge was not dealing with this poiht,but was considering the
question of adverse possession. This is no doubt true, but I fail to see why the finding, though arrived at on the issue of adverse possession should
not be taken into consideration, if it is relevant and material as I have held it is, in interpreting the deed according to the true intention of the parties.
When the case went before the learned District Judge on appeal, the rule of contemporanea expositio was invoked on behalf of the appellants,
but apparently the alleged possession of the disputed property by Sundarapandiya and his successors throughout the period till the suit was filed
was relied upon, instead of the Court''s attention being directed particularly to the user during the period following the execution of the deed as
being the most material for this purpose, especially when conflicts are found to have arisen between the parties subsequently. In view of the
argument then presented to him, the learned Judge reviewed the evidence as a whole and came to the conclusion,
In this state of the evidence, each party claiming to have exercised some acts of possession with reference to the suit will, though the proof as to
possession is more ample and satisfactory on the part of the defendants'' side than on the plaintiff''s side, it will be unsafe to rest our conclusion as
to the true intention of the deed or grant on the basis of the doctrine of contemporanea exposition Where, as in this case, we have some acts of
possession on either side, assertions and counter-assertjons, sometimes strong and cogent for the one party and occasionally clear and unequivocal
for the other also, the, principle ceases to be an useful aid for interpretation, (para 21).
In view of this conclusion of the lower appellate Court, it is contended for the respondent that the principle of contemporanea expositio
invoked by the learned Advocate-General on behalf of the appellants cannot be of any avail to them, whatever the finding of the trial Judge might
have been on the question of possession. But it is to be observed that the learned District Judge''s opinion as to the inconclusive nature of the
possession held by the grantee and his successors is clearly based on his view of the evidence relating to possession throughout the period as a
whole. Here, I think, the learned judge misdirected himself. If he had confined his attention to contemporaneous user and considered the evidence
of possession with reference only to the period immediately following the execution of the deed, he would probably have come to the conclusion,
as the learned trial Judge clearly did that Sundarapandiya was in possession and enjoyment of the disputed property during that period, for, in
paragraph 20 of his judgment, he observes,
During, the first period from 1891 to 1898, many acts of possession have been proved on the part of the appellants. As against this, there is not
much proof of possession on the part of the Zamin-darini Kamalu Ammal except it be that we take the adangals of Rasingapuram (Ex. G series)
referring to cultivation of lands at the foot of the hill under Ekasal pattas or pattas issned year after year as furnishing proof of such possession.
The reference to Ex. G series here is apparently due to a misapprehension as it is admitted that the earliest of them was of the year 1903.
However that may be, I cannot, for the reasons indicated, regard the conclusion of the learned Judge in paragraph 21-of his Judgment as a finding
of fact which this Court must accept in second appeal. The Court below will, therefore, be called upon to submit a fresh finding on point (b)
referred to in paragraph 6 of its judgment on the materials on record, in the light of the observations herein contained. Time for submission of the
finding two months from the date of the receipt of records by the lower Court and ten days for objections.
(After accepting the finding submitted by the learned District Judge of Madura, His Lordship allowed the second appeal with no costs).