how to assess the evidence - Here again, the High Court failed to appreciate all the material facts and circumstances. The High Court thought that the electricity bills showing no consumption of electricity for the period of six months immediately preceding the filing of the suit were of no consequence because the bills for even the period prior to the period of six months preceding the suit showed no consumption of electricity. The High Court overlooked the fact that even though in terms of Section 13(1)(k) of the Bombay Rent Act, the plaintiff was required to prove non-user of the shop premises for a period of six 18 months immediately preceding the filing of the suit, as a matter of fact, the case of the plaintiff was that defendant No.1 was not using the shop and keeping it closed for a much longer period starting from or about June, 1976. Thus, the bills produced by defendant no.1 showing no consumption of electricity in fact supported the case of the plaintiff. The High Court also overlooked that later on in the year 1979 defendant no.1 had got the electricity connection to the suit shop restored and thereafter the electricity bills were showing normal consumption of electricity. The High Court also overlooked that defendant no.1 had resorted to many falsehoods in his attempt to wriggle out of facts and circumstances established by the plaintiff's evidence. 22. In the same way on the issue of subletting the High Court was dismissive of the finding of the appellate court observing as follows:- "On scrutinizing the record, it is clearly found that reliance has been placed on the testimony of the plaintiff's power of attorney holder and panchnama prepared by the Court Commissioner. What is found by the Court Commissioner is only some milk cans in the suit premises. Some of the milk cans carried the name of defendant No.2 and also some sweet boxes. From this mere fact, a very serious presumption of the exclusive possession of the defendant No.2 has been drawn by both the courts below. The finding of the exclusive possession must be based on evidence and that factum of possession must be proved. From this only, no prudent man can infer the presence of a third party." 19 23. We are unable to subscribe to the view taken by the High Court

                                                                                REPORTABLE


                       THE SUPREME COURT OF INDIA

                       CIVIL APPELLATE JURISDICTION




                        CIVIL APPEAL NO.6685 OF 1999





V. Sumatiben Maganlal Manani (dead) by L.R.                                          ... Appellant




                                           Versus




Uttamchand Kashiprasad Shah and Anr.                                          ...Respondents





                                    J U D G M E N T





AFTAB ALAM, J.




1.     This   appeal   at   the   instance   of   the   landlady   is   directed   against   the


judgment and order dated July 23, 1999 passed by a learned single judge of


the Gujarat High Court in Civil Revision Application No.1692/1998. By the


impugned   order,   the   High   Court   allowed   the   revision   application   filed   by


defendant no.1, the tenant (respondent no.1 before this Court), set aside the


judgments and orders passed by the trial judge and a division bench of the


                                               2



Small   Causes   Court   and   dismissed   the   appellant's   application   claiming


eviction of defendant No.1 from the suit premises, besides arrears of rent.


2.      The trial judge had allowed the appellant's application and granted a


decree of eviction in her favour on the ground that the suit premises had not


been used by the tenant, without reasonable cause, for the purpose for which


they were let for a continuous period of six months immediately preceding


the   date   of   the   suit.   In   appeal   against   the   judgment   of   the   trial   judge


preferred  by defendant  no. 1 and the cross-objection filed by the plaintiff-


appellant,  the division bench of the Small Causes Court not only affirmed


the finding of the trial court on non-user of the suit premises for a period of


six months preceding the filing of the suit but also held the tenant liable for


eviction on the ground that he had inducted in the suit premises defendant


no.2 as a sub-tenant. In the revision filed by defendant no.1, however, the


High Court held that both the findings arrived at by the trial court and the


appeal court were bad and erroneous.  It, accordingly, set aside the decree of


eviction  passed by the trial  court and affirmed  by the appeal court  against


defendant no.1 and dismissed the suit of the appellant-plaintiff.


3.      The   plaintiff-appellant   is   the   owner   of   bungalow   No.6   situated   in


Pathik  Society,  Naranpura, Ahmedabad.    A part  of the property, being the


middle garage, bearing M.C. No.145-6-1, and F.P. No.11-11-A-6-1 was let


                                                 3



out to defendant no.1 on June 1, 1974 for carrying on grocery business on a


monthly rent of Rs.100/- plus municipal taxes, education cess etc. On June


9,   1977,   a   notice   (Exh.68)   was   given   to   defendant   No.1   on   behalf   of   the


appellant stating that he was in default in payment of the monthly rent and


the   demised   shop   was   not   in   use   since   one   year   prior   to   the   date   of   the


notice.     He   was,   accordingly,   asked   to   vacate   the   shop   and   hand   over   its


possession to the plaintiff.   The notice did not have the desired result and,


consequently,   on   July   18,   1977,   the   appellant   filed   the   suit   (H.R.P.   Suit


No.2866/1977)  seeking  a decree of eviction  and for payment of arrears  of


rent   and   mesne   profits   against   defendant   no.1   on   grounds   of   default   in


payment   of  rent,   bonafide   personal   need   and   non-user   of  the   suit   shop   by


defendant   no.1,   without   any   reasonable   cause,   for   a   period   of   six   months


immediately preceding the filing of the suit.  It was after the filing of the suit


but before the summons was served on defendant no.1 that, he gave his reply


(Exh.67) to the plaintiff's notice on August 23, 1977.   In the reply, he did


not expressly controvert the allegation that the suit premises were not in use


since one year before the date of the notice.


4.      Later on, after the service of summons of the suit, defendant no.1 filed


a written statement controverting all the allegations made by the plaintiff in


the   plaint.   He   denied   any   default   on   his   part   in   payment   of   rent   and   also


                                               4



denied that the plaintiff-appellant was in bonafide personal need of the suit


shop. He also denied the allegation of non-user and asserted that he carried


on his business from the suit shop. Here, it may be noted that, in the plaint as


it was originally filed, there was no allegation of any subletting of the shop


by defendant no.1 but during the pendency of the suit, the plaintiff made an


application stating that defendant no.1 had acquired a shop in Sardar Patel


Colony, where he carried on his grocery business under the name and style


of   "Mahavir   Provision   Stores".   He   had   acquired,   yet   another   shop   in


Chandlodia area. The suit shop that was not in use by him was sublet by him


to   one   Kishanchand   Chandansingh   Rao   who   was   carrying   on   his   milk


business under the name and style of "Chandrika Dudh Ghar" in the shop


adjoining the suit shop. Defendant no.1 was realising rental of the plaintiff's


shop   from   him.   After   being   inducted   in   the   suit   shop,   the   sub-tenant   was


using it for carrying on his business and was keeping his articles there. The


application seeking amendment in the plaint was allowed by the trial judge


by order dated December 11, 1981, following which necessary amendments


were carried out in the original plaint and the aforementioned Kishanchand


Chandansingh Rao was impleaded in the suit as defendant no.2. On notice


being issued, defendant no.2 filed a written statement denying the allegation


of  being   inducted   in  the   suit  shop   as   a  sub-tenant   and   stating   that  he   was


                                                5



dragged in the suit unnecessarily only with a view to harass him. Defendant


no.1   filed   additional   written   statement,   denying   the   allegation   that   he   had


inducted   defendant   no.2   in   the   suit   shop   as   sub-tenant   or   that   he   was


realising any rent from him.


5.      On the basis of the pleadings of the parties, the trial judge framed a


large   number   of   issues   of   which   issue   numbers   (3),   (4)   and   (4)(A)   are   of


relevance for the present.  Those are as under:


        "(3)    Whether   the   plaintiff   proves   that   the   defendant   has

        acquired a suitable alternative accommodation as alleged?


        "4)     Whether the defendant keeps the suit premises closed and

        does   not   use   for   more   than   six   months   prior   to   the   suit   as

        alleged?


        "(4)(A)   Whether   the   plaintiff   proves   that   defendant   No.1   has

        sublet, assigned or transferred the suit premises to the defendant

        No.2 and is profiteering thereby?"




6.      On issue No.3, the trial judge gave a finding in the negative.  On issue


no.(4)(A)   he   held   that   though   there   appeared   some   substance   in   the


plaintiff's   case   that   the   suit   premises   were   in   the   use   and   occupation   of


defendant no.2, there was no evidence that it was in his exclusive possession


and that he paid some consideration or any monthly rent to defendant no.1


for   being   inducted   in   the   suit   premises   and,   hence,   the   plea   of   subletting


could not be a ground for eviction.    On issue No.(4), however, he held in


                                               6



favour   of   the   plaintiff   and   found   that   defendant   no.1   had   kept   the   suit


premises   closed,   without   any   reasonable   cause   for   more   than   six   months


preceding the date of the filing of the suit.  It, accordingly, gave a decree of


eviction against defendant No.1 on that basis.


7.      Against the judgment and decree passed by the trial judge, defendant


no.1   preferred   an   appeal   before   the   division   bench   of   the   Small   Causes


Court.  The appellant-plaintiff too filed her cross-objections.   The appellate


court examined the evidences adduced by the two sides in support of their


respective cases with great care and thoroughness and it is to the appellate


order that we propose to refer here in some detail.  The appellate court noted


that the ground of subletting was raised on behalf of the plaintiff at a later


stage   through   an   amendment   in   the   plaint.   It   referred   to   the   evidence   of


Maganbhai Rambhai Manani, the husband and power of attorney holder of


the   plaintiff   who   was   examined   at   Exh.   101   and   who   fully   supported   the


plaintiff's case in all particulars. It also referred to the evidence of defendant


no.   1  at   Exh.344.     Defendant   no.  1   denied   all  the   allegations   made   in  the


plaint,   including   the   allegation   of   subletting.   He   maintained   that   he   was


carrying on his business from the suit shop through an employee, Damodar.


The appellate court found that the plaintiff's case of subletting of the shop


by   defendant   no.1   to   defendant   no.2   was   greatly   supported   by   the   report


                                             7



prepared   by   the   Court   Commissioner   who   was   appointed   in   another   suit


being   H.R.P.   Suit   No.3291/81   and   who   visited   the   suit   premises   on


September   22,   1981.     The   Court   Commissioner   did   not   find   there   any


grocery items but he found lying in the suit shop six empty milk cans and


some   glass   show-cases   containing   small   card-board   boxes   used   for


packaging sweets, bearing the name "Chandrika Dudh Ghar".  In the loft of


the shop there were five more milk cans and some 150 to 250 empty sweet


boxes   were   also   lying   there.     Interestingly,   the   Court   Commissioner   also


found   there   certain   books   of   accounts   but   before   he   could   examine   those


books of accounts the inspecting party was attacked by four or five people


coming from the adjoining shop of defendant no.2. The intruders assaulted


Maganbhai   Manani   and   disrupted   the   inspection   being   held   by   the   Court


Commissioner. The inspection, thus, came to an abrupt end.


8.     In   regard   to   the   incident   Maganbhai,   the   husband   and   power   of


attorney holder of the plaintiff who had faced the main brunt of the assault,


filed   a   criminal   complaint   against   Kishanchand,   defendant   no.2.   It   is


admitted   that   in   the   criminal   case,   Kishanchand   was   sentenced   by   the


Metropolitan   Magistrate   to   undergo   imprisonment   for   a   certain   period.


Against  the  judgment  and  order  passed  by  the  Magistrate,  he  preferred  an


appeal   before   the   Sessions   Court.   In   the   appeal   his   conviction   was


                                                8



maintained though the sentence was reduced to imprisonment till the rising


of the court. Against the order passed by the Sessions Court, Kishanchand


did   not   prefer   any   revision   before   the   High   Court   and   the   order   of


conviction, thus, attained finality. In those circumstances there is no reason


to doubt that the inspection  by  the Court Commissioner  was obstructed  at


the instance of Kishanchand, defendant no.2 and the persons who came to


the suit shop, the site of inspection, and assaulted Maganbhai, had come at


his behest.


9.     On   behalf   of   defendant   no.1   a   rather   lame   plea   was   taken   to   try   to


explain away the findings of the Court Commissioner. It was stated on his


behalf   that   the   marriage   of   his   nephew   Ashokbhai   was   to   take   place   in


August   or   September,   1981   and   he   had   given   an   order   for   sweets   to


defendant  No.2.   It  was put to the  plaintiff's  witness Maganbhai  Rambhai


Manani   that   the   sweet   boxes   found   at   the   suit   premises   by   the   Court


Commissioner in course of his visit there on September 22, 1981 would be


bearing the inscription, "On the marriage of Ashok".  The witness, of course,


denied the suggestion.   But the defendant did not stop there.   He, later on,


filed   another   suit   being   H.R.P.   Suit   No.70/83   in   which   a   Court


Commissioner was appointed who visited the suit premises on February 24,


1983.     The   Court   Commissioner   conveniently   found   at   the   suit   premises


                                                 9



sweet boxes with the inscription "At the occasion of the marriage of nephew


Shri   Ashok   Kumar".     The   appellate   court   rightly   rejected   the   explanation


furnished by defendant no.1 relying on the report of the Court Commissioner


observing that there should be no reason for empty sweet boxes to be lying


at the shop after two years of the marriage.  But, we see something more in


the conduct of defendant no.1. He not only fabricated evidence by later on


keeping   in   the   suit   shop   the   sweet   boxes   with   the   inscription   about   his


nephew's wedding but also abused the process of the court for his purpose


by filing a separate suit and getting a Court Commissioner appointed in that


suit for the discovery of the fake sweet boxes.


10.     On a detailed consideration  of the materials on record, the appellate


court came to find and hold that the suit premises were in fact in the use and


occupation of defendant no.2 and in the facts of the case it was not necessary


for the landlady to prove the monetary consideration between the tenant and


the sub-tenant. In support of the view taken by it, the appellate  court relied


upon   a   decision   of   this   Court   in  Bharat   Sales   Limited  v.  Life   Insurance


Corporation   of   India,   AIR   1998   SC   1240   and   in   paragraph   38   of   the


judgment observed as follows:-




        "38.    In view of our earlier discussion and even in view of the

        finding   of   the   learned   trial   Judge,   it   can   be   safely   said   that

        defendant   No.2   is   found   in   use   and   occupation   of   the   suit


                                                10



        premises.     In   that   case,   according   to   our   view,   it   is   not

        necessary for the landlord to prove the monetary consideration

        by sub-tenant to the tenant.   We are also of the opinion that in

        case   of   subletting   or   in   case   of   illegal   transfer,   such

        consideration   can   be   presumed.     In   this   connection,   our

        attention   is   drawn   by   Mr.   Pandya,   learned   advocate   who

        appears on behalf of the appellant, to a decision of M/s. Bharat

        Sales Limited  v.  Life Insurance Corporation of India, reported

        in A.I.R. 1998, Supreme Court, page-1240.   In this decision, it

        has been observed by Their Lordships that:


        "..   To   prove   subletting   production   of   affirmative   evidence

        showing   payment   of   monetary   consideration   by   sub-tenant   to

        the   tenant   is  not   necessary.     Inference   as   to   subletting  can   be

        drawn   from   proof   of   delivery   of   exclusive   possession   of   the

        premises   by   tenant   to   sub-tenant.     Sub-tenancy   or   subletting

        comes   into   existence   when   tenant   gives   up   possession   of   the

        tenanted   accommodation   wholly   or   in   part   and   puts   another

        person   in   exclusive   possession   thereof.     This   arrangement

        comes   about   mutual   agreement   or   understanding   between   the

        tenant and person to whom possession is so delivered.   In this

        process,   landlord   is   kept   out   of   the   scene.     Rather   scene   is

        enacted behind the back of the landlord, concealing overact and

        transferring possession to a person who is utter stranger to the

        landlord...."


11.     Coming to the issue of non-user of the suit shop for the purpose it was


let   out,   the   appellate   court   noted   that   according   to   the   plaintiff   the   suit


premises   were   rented   out   to   defendant   no.1   in   June,   1974   for   grocery


business.  But the business of grocery evidently did not succeed and since a


few months after it was taken on rent, the shop was kept closed.  Then, in the


amendment petition filed on behalf of the plaintiff, it was expressly alleged


that defendant no.1 was carrying on his grocery business under the name and


                                             11



style   of   "Mahavir   Provision   Stores"   from   another   shop   in   Sardar   Patel


Colony and later on he had set up yet another shop in Chandlodia area and


the suit premises were sublet to defendant no.2.


12.     Maganbhai Manani, the husband and the power of attorney holder of


the plaintiff in his deposition before the court fully supported the case of the


plaintiff on the question of non-user as well. Apart from the evidence of the


plaintiff, there were two sets of photographs, one taken on January 4, 1977


and   the   other   on  January   3,   1981  in   which  the   suit   shop   appeared  closed.


The   photographs   taken   on   January   4,   1977,   at   exhibits   301   to   304,   were


formally   proved   by   one   Mr.   Narendrabhai   Madhavlal   Gajjar   at   (Exh.300)


who is a professional photographer and has a shop under the name and style


of   Gajjar   Studio.   He   stated   before   the   court   that   he   had   taken   the


photographs on the instructions of the husband of the landlady on January 4,


1977 at about 10 to 11 in the morning and had issued the bill, Exh.201.  The


other set of photographs, dated January 3, 1981, were taken by Vinodbhai


Boria, who is also a professional photographer.  In regard to the two sets of


photographs the appellate court rightly said that those would, at best, show


that the shop was closed on the dates on which the photographs were taken.


The photographs, therefore, could not form conclusive evidence of non-user


                                                12



of the shop over a period of six months and, at best, they could be used as a


piece of corroborative evidence.


13.     Apart   from   the   photographs,   there   was   the   report   of   the   Court


Commissioner   who   visited   the   suit   shop   on   July   23,   1977   and   found   it


closed.  The explanation of defendant no.1 was that on that date his maternal


uncle   had   died   and   the   shop   was   not   opened   for   that   reason.   His   witness


Maheshkumar   Trivedi,   at   Exh.   404,   who   was   writing   the   accounts   of


business of defendant no.1, however, had a different explanation.  According


to   him,   the   shop   was   not   opened   on   July   23,   1977   because   that   was   a


holiday.   The   court   has   observed   that   grocery   shops   are   not   known   to   be


closed on holidays. But the matter does not end there. After finding the suit


shop   closed,   the   Court   Commissioner   proceeded   to   visit   the   shop   of


defendant   no.1   called   `Mahavir   Provision   Stores'   at   Sardar   Patel   Colony.


There the shop was not only open but defendant no.1 was himself present in


the   shop.     The   court   has   observed,   and   rightly   so,   that   on   account   of   the


death of the maternal uncle it cannot be that one shop would open and the


other would remain closed.


14.     The   most   clinching   evidence   on   the   issue   of   non-user   of   the   suit


premises,   however,   comes   in   the   form   of   the   electricity   bills.   Electricity


bills, Exhs. 172 to 177, are dated 10.1.1977, 23.2.1977, 25.3.1977, 2.5.1977,


                                            13



2.6.1977 and 2.9.1977 respectively. These electricity bills clearly show that


in the suit shop there was no consumption of electricity for the period of six


months  before the filing of the suit. In order to prove non-consumption of


any   electricity   at   the   suit   shop,   the   plaintiff   also   examined   Rameshbhai


Patel,   at   Exh.332,   who   was   an   employee   of   the   Ahmedabad   Electricity


Company, as a Senior Clerk, for 12 years before his examination in court.


He produced before the court statement of electric service number 149090


(of the suit shop) with his list Exh.74/1.  He also produced other statements


with lists, Exh.74/2 and Exh.74/3, containing record of metre readings of the


suit premises showing electric  consumption  for different  periods.   He also


referred to an application submitted by defendant no.1 for transfer of electric


service in his name and for resuming electric supply in the suit premises.


15.     The explanation of defendant no.1 for non-consumption of electricity


was that being a devout Jain he closed the shop at 5:30 P.M. before the day


getting dark. He, therefore, did not need any electric light (or for that matter


any electric fan) and hence, there was no consumption of electricity in his


shop. The falsehood of the explanation, however, was exposed by the fact


that   the   electric   supply   to   the   demised   shop   was   disconnected   for   non-


payment of the minimum charges. Defendant no.1 then made an application,


Exh.198, for resumption of the supply and transfer of the service from the


                                               14



name   of   the   landlady   to   his   own   name.   On   his   application,   the   electric


supply   was restored  in  the  year  1979  and  then   the   monthly  bills,   Exh.199


and Exh.200, dated December, 2, 1980 and January 2, 1981 showed normal


consumption   of   electricity   in   the   suit   shop.   There   was   no   explanation   by


defendant   No.1   how   and   why   the   suit   shop   that   showed   no   electric


consumption   in   earlier   years   started   showing   normal   electric   consumption


from   December   1979.   The   resumption   of   electric   consumption   in   the   suit


shop   also   lends   credence   to   the   case   of   the   plaintiff   that   after   remaining


closed   for   two-three   years,   the   shop   was   sublet   by   defendant   no.   1   to


defendant no. 2 who used it for his milk business.


16.     The appellate court also referred to the book of account, in the form of


"Rojmel" produced by defendant no.1 in support of his claim that the suit


shop   was   in   his   occupation   and   he   carried   on   his   grocery   business   from


there.  The appellate court on a detailed examination of the entries made in


the "Rojmel" found that it was a crude and clumsy fabrication made for the


purpose of the suit.


17.     Thus, in addition to its own finding on the question of subletting, the


appellate   court,   on   a   careful   consideration   of   all   the   materials   on   record,


affirmed the finding recorded by the trial judge that the suit premises were


not used by the appellant-tenant for the purpose for which it was let for a


                                                   15



continuous period of more than six months immediately preceding the date


of the suit. It, accordingly, confirmed the decree of eviction passed by the


trial court.


18.      Against the order passed by the appellate court defendant no.1 filed a


revision     before   the   High   Court   and   the   High   Court,   we   are   sorry   to   say,


taking a rather perfunctory view of the matter interfered with and set aside


the findings of fact arrived at by the appellate court in a very well reasoned


judgment.   On   the   issue   of   non-user   of   the   suit   premises,   the   High   Court


made the following observations:




         "....It   appears   that   the   Trial   Court   as   well   as   the   Appellate

         Bench of the Small Causes Court have taken the pieces of the

         fact which are segregated and placed them in the juxtaposition,

         and from that the Appellate Bench inferred and presumed that

         the   suit   shop   was  closed   for   continuous   period   of   six   months

         prior   to   the   filing   of   the   suit;   and   this   is   the   error   of   law

         apparent on the face of the record, and it goes to the root of the

         cause.     It   is   a   celebrated   principle   of   law   that   the   word

         "continuous"  applied in Section  13(1)(k)  of the Bombay Rent

         Act   clearly   denotes   that   the   premises   must   not   have   been

         opened for a day even, and what is found from the evidence is

         that  the day  on  which the  Commissioner  visited  the  suit shop

         was found closed.  The photographs taken by the photographer

         on a stray day shows that the suit shop was found closed and

         the oral evidence of the plaintiff was believed."




 19.     In   our   view,   the   criticism   by   the   High   Court   of   the   appellate   court


judgment is unwarranted. The appellate court did not arrive at its finding on


                                                16



a juxtaposition of segregated pieces of fact but it took into consideration the


overall   picture   emerging   from   all   the   material   facts   and   circumstances


relating to the case.   The appellate court expressly said that the two sets of


photographs   would   only   show   that   the   shop   was   closed   on   the   dates   the


pictures   were   taken   and   those   pictures   alone   were   not   sufficient   to   prove


non-user of the suit premises over a period of six months and they could, at


best, be used as corroborative evidence.  It, however, took into consideration


the circumstance that apart from the suit premises defendant No.1 had set up


another shop called "Mahavir Provision Stores" at Sardar Patel Colony and


yet   another   shop   in   Chandlodia   area.     It   also   took   into   consideration   that


when the Court Commissioner visited the suit shop on July 23, 1977 it was


found closed. What is of greater significance in that regard, however, is that


defendant no.1 gave a false explanation for not opening the shop, stating that


it was not opened due to the death of his maternal uncle   even though the


other   shop   at   Sardar   Patel   Colony   was   not   only   open   but   he   was   also


personally present there on that date.  The court also took into consideration


the   false   "Rojmel"   filed   by   defendant   No.1   in   support   of   the   plea   that   he


continued   to   run   the   grocery   business   at   the   suit   premises   through   an


employee. The court also noticed that another Court Commissioner had gone


to the suit premises on September 22, 1981.  He did not find in the shop any


                                               17



grocery   articles   but   found   there   articles   belonging   to   defendant   no.2   who


carried on his milk business from the adjoining shop.   Besides all this, the


appellate court had taken into consideration the electricity bills that showed


that   there   was   no   consumption   of   electricity   over   a   period   of   six   months


immediately preceding the filing of the suit.


20.     As   regards   the   electricity   bills,   the   High   Court   had   to   make   the


following comments:




        "Defendant   No.1   has   offered   his   explanation   for   this   that   he

        being   a   Jain,   before   the   sun   set,   he   closes   his   shop.     The

        defendant   No.1  has   also   produced   electric   bills   of  six   months

        prior to the six months prior to the date of the filing of the suit.

        These bills have not been considered by any of the courts below

        properly.   In those six months bills, which the defendant No.1

        has   produced,   the  charges   of  the  electricity   are   minimum   and

        there is no consumption.  On the contrary, from this explanation

        of the defendant No.1 that he is not using the electricity......".


21.     Here again, the High Court failed to appreciate all the material facts


and circumstances. The High Court thought that the electricity bills showing


no   consumption   of   electricity   for   the   period   of   six   months   immediately


preceding the filing of the suit were of no consequence because the bills for


even the period prior to the period of six months preceding the suit showed


no consumption of electricity. The High Court overlooked the fact that even


though in terms of Section 13(1)(k) of the Bombay Rent Act, the plaintiff


was   required   to   prove   non-user   of   the   shop   premises   for   a   period   of   six


                                               18



months immediately preceding the filing of the suit, as a matter of fact, the


case   of   the   plaintiff   was   that   defendant   No.1   was   not   using   the   shop   and


keeping it closed for a much longer period starting from or about June, 1976.


Thus,   the   bills   produced   by   defendant   no.1   showing   no   consumption   of


electricity in fact supported the case of the plaintiff.   The High Court also


overlooked   that   later   on   in   the   year   1979   defendant   no.1   had   got   the


electricity connection to the suit shop restored and thereafter the electricity


bills were showing normal consumption of electricity. The High Court also


overlooked   that   defendant   no.1   had   resorted   to   many   falsehoods   in   his


attempt   to   wriggle   out   of   facts   and   circumstances   established   by   the


plaintiff's evidence.


22.     In   the   same   way   on   the   issue   of   subletting   the   High   Court   was


dismissive of the finding of the appellate court observing as follows:-




        "On scrutinizing the record, it is clearly found that reliance has

        been   placed   on   the   testimony   of   the   plaintiff's   power   of

        attorney   holder   and   panchnama   prepared   by   the   Court

        Commissioner.    What  is  found  by  the  Court Commissioner   is

        only   some   milk   cans   in   the   suit   premises.     Some   of   the   milk

        cans carried the name of defendant No.2 and also some sweet

        boxes.   From this mere fact, a very serious presumption of the

        exclusive possession of the defendant No.2 has been drawn by

        both the courts below.  The finding of the exclusive possession

        must be based on evidence and that factum of possession must

        be   proved.     From   this   only,   no   prudent   man   can   infer   the

        presence of a third party."


                                              19





 23.     We are unable to subscribe to the view taken by the High Court.  On


the basis of the materials  available  on record, as discussed in detail in the


judgment of the appellate court, it was perfectly justified in arriving at the


finding of subletting against defendant no.1.   On a careful consideration of


the   matter,   we   find   that   the   High   Court,   in   exercise   of   its   revisional


jurisdiction,   committed   a   mistake   in   interfering   with   and   setting   aside   the


findings of fact properly arrived at by the courts below.  The judgment and


order   passed   by   the   High   Court   is   unsustainable   by   any   reckoning.   We,


accordingly, set aside the judgment of the High Court and restore the decree


passed by the trial court as affirmed by the appellate court.


24.      In the result, the appeal is allowed with costs throughout.





                                                                       ........................

......J.

                                                               (AFTAB ALAM)





                                                                       ........................

......J.

                                                               (R.M. LODHA)

New Delhi;

July 4, 2011.

A CONDITIONAL GIFT DEED - WITH REVERSION ON HAPPENING OF CERTAIN EVENTS IS VALID

THE HON'BLE SRI JUSTICE V.V.S.RAO    
APPEAL SUIT No.150 OF 1991 AND TRANSFER A.S.No.1474 OF 2001          

29-12-2010

Dr K.Subbaiah

C.N.Krishnamacharlu, S/o.Narasimha Charlu and others

Counsel for Appellant : Sri M.N.Narasimha Reddy and
                        Sri C.Sadasiva Reddy

Counsel for Respondents: Sri P.Jagadish Chandra Prasad
                        Sri C.Subba Rao

:COMMON JUDGMENT:      

INTRODUCTION  
These two appeals arise out of the same Judgment of the trial Court. A.S.No.150
of 1991 is filed by defendant No.10 and the other transferred appeal is filed by
defendants 12 and 13, the legal representatives of defendant No.8, who died
during pendency of suit. The appeal filed before the Court of the District
Judge, Kadapa stands transferred to this Court. The dispute in these cases is in
respect of land admeasuring 0.67 cents in survey No.455 (suit schedule property)
in Proddatur town. The persons who were allegedly members of Sundaracharlu Club
(the club, for brevity) on the one hand and the first and second generation
legal heirs of late Curram Sundaracharlu (CSC) are fighting this three decades
long drawn Court battle for the property. In this Judgment, the parties are
referred to as they are arrayed in the suit.

PLEADINGS  
C.S.Narasimhacharlu (CSN), C.S.Krishnamacharlu (CSK) and C.N.Srinivasacharlu  
(CNS) are sons of CSC. Plaintiffs 1 and 2 are sons of CSK and third plaintiff is
son of CSN. They instituted the suit registered as O.S.No.69 of 1980 on the file
of the Court of the Subordinate Judge, Proddatur, which was transferred as
O.S.No.68 of 1985 to the Court of the Subordinate Judge, Kadapa. It was
instituted for declaration of plaintiffs right to the suit schedule property
together with open site, constructions, structures and improvements made
thereon, to declare the right of the plaintiffs and first defendant to the
portion of the suit schedule in occupation of defendant No.8 and for a direction
to defendants 12 to 18 to deliver possession of the property.  Their case in the
plaint is as below.
The suit schedule property was originally owned by CSC. He died in 1922, leaving
behind his three sons.  On 13.05.1938, CSN and CSK executed a registered
document in favour of M/s.V.Shankara Rao, B.Bala Narayana Reddy and Ananda Rao,  
for the purpose of conducting the club in the memory of CSC, i.e., Sundaracharlu
Club. The registered deed under which the property was demised was subject to
the condition that the property shall be used for the purpose of playing tennis
and taking up recreational activities.  It was stipulated therein that if for
any reason, the club activities are stopped, the property will revert to the
donors or their legal heirs. The donees shall have no right of alienation.  The
property shall be used to run the club in the memory of their father CSC with a
view to promote sports, games and goodwill among the public of the town. Four
members of legal profession, namely, D.Krishna Rao, V.Shankara Rao, K.Bala
Narayana Reddy and Ananda Rao constituted a trust. All of them were tennis
players and were running tennis club in the local cotton press compound. As it
was not conducive and convenient, they started 'Sundaracharlu Club'. The trust
Board took delivery of the possession and started running the club, which
enjoyed good reputation. All respectable elite of the town were its members.
In 1945, necessary rules, regulations and bye-laws were framed.  Elections were
to be held annually for choosing office bearers and members of Managing
Committee to look after the administration of the club. After the demise of the
members of the trust Board, the club was being managed by elected body till
1974.  Thereafter, the dignified character of the club started fading away. The
club fell into disrepute and ignominy. The administration fell into the hands of
group of persons and thereafter there was no general body meeting to elect the
office bearers. No list of persons is maintained and the respective members of
the club became helpless to raise their voice. The club went into the hands of
people with shady character. It became den for bad characters with criminal
conduct. It became a private affair and was not running for the purpose for
which the land was donated.
The respectable and elite of the town frequently complained to the plaintiffs 1
to 3 as well as law enforcement authorities about the imminent danger which the
club in the hands of shady characters was posing to general public and law and
order situation in the town. There has been chain of events for over a decade of
grave character like murders, attempt to murder and disturbance originated from
the club premises as per the police record. Some of the offenders were arrested
in the club premises as it became a joint for anti social activities like
gambling, drinking, debauchery and it earned very bad name.
Defendant 8 encroached upon a portion of suit schedule property on the northern
side without any manner of right. The persons in management did not protest.
Some members made efforts to remove the encroachments. A collusive settlement  
between the defendant 8 and persons in management was brought into effect after
reference to first defendant as arbitrator. Defendant 8 agreed to leave the
encroached portion except an extent of Acs.0.11/2 cents as shown in the plaint
plan. The said settlement is not binding on the plaintiffs and defendant 8 is
liable to be evicted. As the purpose for which plaintiffs' predecessors gave the
land does not exist, the land must revert back to the donor's family.  Notices
were issued on 14.07.1976 requiring the defendants to deliver possession of club
premises. Defendant 10 sent reply on his behalf and on behalf of unnamed
President and Secretary of the club.
From 1973 till 1977, various groups began laying claims to the control and
management of the club without any legitimate membership. There were violent
incidents. Therefore, Inspector of Police, I-Town P.S., Proddatur instituted
proceedings under Section 145 of Code of Criminal Procedure, 1973 (Cr. P.C.)
being M.C.No.35 of 1978 before Sub Divisional Magistrate cum Revenue Divisional
Officer, Jammalamadugu (RDO, for brevity). RDO passed interim orders on
19.09.1978 attaching the club under Section 146(1) of Cr.P.C. till the rights of
the parties are decided by competent Court. All persons were restrained from
claiming or entering the club. The Sub Inspector of Police attached the club on
21.09.1978 under Panchanama.  A detailed enquiry was conducted by RDO in which  
plaintiffs stated that there are gross and grave violations of terms of the gift
deed. The RDO passed final orders on 24.03.1979 confirming the interim order
dated 19.09.1978 ordering that the attachment shall continue till the dispute is
resolved by a competent civil Court. The Sub Inspector of Police was directed to
hand over the club premises to successful parties after final adjudication. The
club is therefore in custodia legis.
Defendants 2 to 7 claimed and proclaimed to be the persons in charge of the club
and therefore, they are impleaded. The plaintiffs reserved the right to implead
other persons if necessary. Defendant 10 is influential and popular person who
is making hectic efforts to take possession of the suit schedule property
without any right. Therefore, he is impleaded as party to the suit. Defendant 11
is running elementary school in a portion of the suit schedule property
unauthorisedly. He has no right to do so. As the Sub Inspector of Police is in
possession of the suit schedule club, he is impleaded as defendant 9.
Defendants 8, 10 and 11 filed written statements. Second defendant adopted the
statement of defendant 11 and defendant 1 and defendants 2 to 7 remained ex
parte. Be it also noted that during the pendency of the suit, plaintiffs 10 to
18 are added as legal representatives (LRs) of first plaintiff and defendants 4
to 9 are added as LRs of second plaintiff. Defendant 8 also died during the
pendency and his LRs are on record as defendants 12 to 16.
In the written statement, defendant 8 did not dispute about CSN and CSK
executing a deed to perpetuate the memory of their father.  He also does not
dispute Sundaracharlu Club being run for the purpose for which the property was
gifted. He alleges that the condition was onerous and being a clog, the same
does not make the transfer a conditional one.  He put up a cattle shed and
hayricks and enjoyed site since 1934, by enclosing the same with a mud wall on
the southern site. On the date of purchase, there is no compound wall on the
southern site abutting the area known as Sundaracharlu thota. Defendant 8 is in
possession continuously, uninterruptedly and knowledge of all the concerned and
therefore, he perfected title by adverse possession as against the owners of
Sundaracharlu thota. He denied allegation that he encroached upon the land of
the club site. He, however, does not dispute the alleged resolution by the
executive committee of the Club for settlement and ultimately, settlement
between defendant 8 and the Club. As per the settlement, he was asked to shift
the mud wall a little further towards north upto the line of electric and
telephone poles adjacent to the south of the mud wall. Accordingly, he
demolished wall and constructed pucca wall. The first defendant submitted a
report that which was approved by the Club. The legal heirs of CSC, therefore,
cannot raise any dispute. They are estopped from questioning the action of the
club in settling the boundary dispute with defendant 8 who has not encroached
upon any club land.
In the written statement of defendant 10, who is a member of the Club, the
following averments are made.  The Club had been functioning properly and is
being managed on sound lines.  Suit schedule land was transferred on 13.5.1938
for running the Club in the name of Sundaracharlu, the father of the donors, for
the purpose of outdoor games like tennis and indoor games, as a recreation for
the elite of Proddatur town.  There is nothing prohibiting taking up other
activities.  The first defendant is a member of the Club and he is aware that
all the activities are being carried on as per the deed and the Club enjoys good
reputation.  The defeasance clause in the gift deed was never intended to enable
the donors to resume possession and claim ownership for themselves.  If some
culprits entered the premises after the closure of the Club and use as a place
of refuse, the Club members cannot be held responsible.  When defendant 10 and
others tried to change the office doors, rumours were spread and taking
advantage of the same, plaintiffs pressed the matter for obvious reasons with a
view to get the Club closed and reclaim the property which is worth
Rs.6,00,000/- even by the date of filing the suit besides the building valued at
Rs.1,00,000/-.
The defendant 10 further pleaded that the Club is registered body with rules and
regulations.  Any allegations of mismanagement, maladministration,
misapplication and misappropriation of funds are internal matters of the Club,
which can be questioned by the members of the body and plaintiffs cannot have
any say in the same.  While admitting the proceedings under Section 145 of the
Criminal Procedure Code, 1973 being M.C.No.35 of 1978, he stated that in spite
of the same the Club is not defunct and the tennis court is being used every day
from the date of resumption of possession by defendant 10 and other members.
The plaintiffs have knowledge of the occupation of Club portion by defendant 8
and the efforts of first defendant to arbitrate the matter.  The defendant 10 is
taking all necessary steps for revival of the Club.  The defendant 11 filed
written statement alleging that he is not at all necessary party to the suit.
He denied having taken possession of the Club property for running a school.
ISSUES FOR TRIAL AND FINDINGS OF TRIAL COURT        
Based on the rival claims, the trial Court framed the following issues: 1.
Whether the plaintiffs are the owners of the suit schedule property A B E F as
shown in the plaint plan together with the super structure shown as G H I J? 2.
Whether the plaintiffs and D1 are the owners of the portion marked as B C D E in
plaint plan which is now in the occupation of the 8th defendant? 3. Whether the
plaintiffs are entitled for the reliefs of declaration and recovery of
possession as prayed for? 4. To what relief?  During the trial, the third
plaintiff, Krishnamacharyulu, deposed as P.W.1 besides examining two members; a
retired Deputy Tahsildar as P.W.2 and a retired teacher and former Secretary of
the Club as P.W.3.  Exs.A1 to A12 were also marked.  Defendants examined D.W.1  
to D.W.7, who include one former President of the Club, one former Secretary of
the Club, one former Secretary of the Tennis Club and a tennis ball picker of
Tennis Court.  The defendants also marked Exs.B1 to B4.
Whether the plaintiffs are owners of suit schedule property with the super
structure thereon?  On this issue, the trial Court found in favour of the
plaintiffs and held that in view of the defeasance clause the suit schedule
property shall revert back to the legal heirs of CSN and CSK.  On issues 2 and 3
also the findings were recorded in favour of the plaintiffs.  The trial Court
also found that Sundaracharlu Club which was under attachment till the date of
the trial Court judgment, had no responsible person to hold elections and that
nobody was interested in running the Club.

ARGUMENTS OF APPELLANTS AND RESPONDENTS              
In these appeals, the Counsel for the appellant/defendant 10 in A.S.No.150 of
1991 and the Counsel for appellants/legal heirs of defendant 8, made the
following submissions.  Sundaracharlu Club is a registered society with byelaws
and regulations.  Therefore the suit against the members of the Club would not
lie.  A suit has to be instituted in the name of the Society represented by its
Secretary and, therefore, the suit itself is not maintainable.  The defeasance
clause cannot be interpreted in such a manner as conferring any right on the
legal heirs of CSC to take back possession as long as some activity - outdoor
and indoor games, reading room etc., are carried on by the Club members.
Alternatively they submit that the Club cannot be said to have been closed down.
The Club was closed temporarily during the period of attachment by the Sub
Divisional Magistrate.  Such temporary stoppage of activities does not amount to
closure under Section 13 of the Societies Act, 1860, and in the entire
administration and management of the Club no acts of malfeasance or misfeasance
were reported nor proved and, therefore, the trial Court was in error.
The Senior Counsel for the respondents/plaintiffs points out that the defendants
never raised objection regarding maintainability of the suit and, therefore, it
cannot be permitted now.  He would urge that the society nowhere existed and the
defendants alone contested the possession of the Club.  They were made parties
in the suit for declaration and possession.  He further adds that unlike a
company the society is not a juristic person and, therefore, it cannot hold
property in perpetuity and cannot be sued in a declaratory suit.  He placed
reliance on Illachi Devi v Jain Society, Protection of Orphans India1.  Nextly
he submits that the declaratory decree with consequential relief of possession
is not liable to be set aside in appeal at the instance of defendant 10 and
legal heirs of defendant 8.  Their case has to be adjudicated only with
reference to their stand in their respective written statements.  As other
defendants did not choose to file appeals against the declaratory decree such a
plea is beyond the scope of appeal.  In support of the submission he relies on
Rafique Bibi v Sayed Waliuddin2.  He would urge that defendant 8 cannot be
permitted to raise plea of adverse possession as he claims under an arbitration
settlement.  For this purpose, he relies on Karnataka Board of Wakf v Govt. of
India3.  According to the Senior Counsel, Ex.A1 makes it a conditional transfer
and in the event of failure to carry on the activities for which the land was
donated, the legal heirs of Sundaracharlu are entitled to get back the
possession.  He would urge that the plaintiffs amply proved the plea and if the
land is taken possession neither the Society nor members would suffer any legal
injury.  According to him as per Section 10 of the Limitation Act, 1963, when
the property is held in trust, the limitation would not apply.  He contends that
under Ex.A1 title of the property was never transferred and, therefore, it is
always open to reclaim the land especially when defendants 8 and 10 do not have
any personal right much less legally enforceable right in the suit schedule
property.
The background pleadings and the rival submissions made before this Court give
rise to four issues for consideration, which are taken up one after the other.

MAINTAINABILITY OF THE SUIT    
        Defendants 8 and 10 contested the suit by filing written statements.
Defendants 2 and 11 pleaded misjoinder and defendants 1 and 3 to 7 remained ex
parte.  The contesting defendants in one voice pleaded that Sundaracharlu Club
is a registered association/society with rules, regulations and procedures.  No
evidence was let in although as many as seven witnesses were examined on their
behalf.  Presumably for this reason, defendants 8 and 10 did not take a specific
plea of maintainability of the suit before the trial Court.  They did not allege
that the suit against the members is not maintainable.  Therefore it is futile
for the appellants now to raise such a plea after lapse of about 30 years from
the date of the institution of the suit.
        A society is an association organized for some recognized purpose, be it
for charity, business, recreation or social welfare.  The Societies Registration
Act is an Act (hereafter, Central Act) for the registration of literary,
scientific and charitable activities.  An association or group of similar minded
people with a memorandum of association with (objects therefor) the rules and
regulations is registerable.  All the property of the society, if not vested in
the trustees; shall vest in the governing body of the society (Section 5) and
every society registered under the Central Act may sue or be sued in the name of
the President, Chairman or Principal Secretary or trustees as shall be
determined by the rules and regulations of the society.  The proviso to Section
6 of the Central Act enables to sue the President or Chairman or Principal
Secretary or trustees of the society if no other person is nominated for the
purpose.  Therefore, though a society can sue and be sued in the name of its
President/Chairman/Secretary, the law does not bar suing its members, who as
trustees have control over the property.
        Before 2001, the Central Act applied to Andhra Area of the State and the
Andhra Pradesh (Telangana Area) Public Societies Registration Act, 1350 Fasli
(Act 1 of 1350 F) applied to erstwhile Hyderabad State.  The Andhra Pradesh
Societies Registration Act, 2001 - a consolidating and amending law - repealed
Central Act in its application to Andhra area as well as Act 1 of 1350 F.  Under
the new legal regime, Sections 3 to 9 deal with registration of Societies with
memorandum of association and byelaws which are to be filed with the Registrar
of Societies.  In addition Section 9 of the A.P. Act requires the furnishing of
the list of members of the general body every year.  Even when an amendment is
carried out to byelaws it comes into effect only when they are filed with and
are certified by the Registrar of Societies.  Section 11 of A.P. Act requires a
register of members to be maintained besides keeping the accounts and records of
the society.
        In this case, D.W.1, D.W.2, D.W.3 and D.W.6 were examined.  Admittedly
they were at some point of time involved in the affairs of the Club.  Except
D.W.2, the former Secretary of tennis Club, nobody even whispered about the
maintaining of the books of accounts or registers.  As already pointed out, no
evidence was let in like certificate of incorporation, copy of the memorandum of
association, copy of the byelaws, the register of members, account books,
resolutions passed by the governing body and general body from time to time etc.
In the absence of any of these, the defendants 8 and 10 cannot contend at this
stage that the suit was not properly instituted.
        There is yet another reason to reject the submission.  The society is not
a juristic person unlike a company incorporated under the Companies Act, 1956.
It is not capable of ownership of any property.  It cannot be sued in its name
like a company.  This is well settled.  In Illachi Devi, the Supreme Court,
while observing that a society is endowed with an "existence" separate from its
members for certain purposes, laid down as below.
A society registered under the Societies Registration Act is not a body
corporate as is the case in respect of a company registered under the Companies
Act. In that view of the matter, a society registered under the Societies
Registration Act is not a juristic person. The law for the purpose of grant of a
probate or Letter of Administration recognises only a juristic person and not a
mere conglomeration of persons or a body which does not have any statutory
recognition as a juristic person.  ...  ...  It is well known that there exist
certain salient differences between a society registered under the Societies
Registration Act, on the one hand, and a company corporate, on the other,
principal amongst which is that a company is a juristic person by virtue of
being a body corporate, whereas the society, even when it is registered, is not
possessed of these characteristics. Moreover, a society whether registered or
unregistered, may not be prosecuted in a criminal court, nor is it capable of
ownership of any property or of suing or being sued in its own name.
(emphasis supplied)

        In view of the settled position, the plaintiffs could not have sued the
so-called society, Sundaracharlu Club, for declaration and possession.  The
possession was with the defendants, who claimed to be either members or former
office bearers.  Therefore the plea of the appellants before this Court is
wholly misconceived and unsustainable.  The point is answered accordingly.

MAINTAINABILITY OF APPEALS BY DEFENDANTS 8 AND 10          
        In a suit for declaration and possession all the persons claiming title,
right, interest, ownership as well as possession are necessary and proper
parties.  Each category of all these can never have the same line of defence to
oppose the suit.  For instance, rival titleholders may put up a case as to how
he alone should be treated as rightful owners whereas a person in possession
like tenant may claim statutory right or common law right to protect his
possession.  Yet another instance is the right of a person who has only a
limited right over the property in a declaratory suit like a mortgagee or a
licensee or a contractor in respect of usufruct on the land.  In a case of
mining lease, the line of defence is altogether different.  Therefore any type
of rival claim has to be considered by the Court with reference to the category
of defendants.  If the Court grants declaratory decree to the plaintiff as
against those defendants, who have set up rival title in themselves, they only
can assail such title in the appellate Court.  If there is also a decree for
possession, such category of persons can assail the decree only to defend their
possession and cannot ordinarily be permitted to impeach the title based on
declaratory decree.
        Thus, an appeal to the declaratory decree can be adjudicated at the
instance of a right person.  In case of an appeal by other category of
defendants, who did not claim title in themselves but claim some other right or
interest in the property, such an appeal has to be adjudicated based upon the
written statement filed by those defendants before the trial Court.  In other
words, the locus standi to prefer an appeal is to be decided from the pleadings
in written statement of the defendant.  He may or may not himself claim adverse
title.  A reference need to be made to Rafique Bibi wherein it was held.
        Two things must be clearly borne in mind. Firstly, "the court will
invalidate an order only if the right remedy is sought by the right person in
the right proceedings and circumstances. The order may be 'a nullity' and 'void'
but these terms have no absolute sense: their meaning is relative, depending
upon the court's willingness to grant relief in any particular situation. If
this principle of illegal relativity is borne in mind, the law can be made to
operate justly and reasonably in cases where the doctrine of ultra vires,
rigidly applied, would produce unacceptable results." (Administrative Law, Wade
and Forsyth, 8th Edn., 2000, p.308.) Secondly, there is a distinction between
mere administrative orders and the decrees of courts, especially a superior
court. "The order of a superior court such as the High Court, must always be
obeyed no matter what flaws it may be thought to contain. Thus a party who
disobeys a High Court injunction is punishable for contempt of court even though
it was granted in proceedings deemed to have been irrevocably abandoned owing to
the expiry of a time-limit." (ibid., p.312)

        Defendant 8 has nothing to do with Sundaracharlu Club.  His case is that
he purchased a small piece of land on the north of the Club in 1934 and that it
is not an encroachment on the Club's property.  He claimed to have been in
possession of Acs.0.011/2 cents (72.6 Sq.yards) of land whereas the total extent
of the land donated by CSK and CSN is admittedly Acs.0.67 (3,042.8 Sq.yards).
At the best defendant 8 can only claim Acs.0.011/2 situated on the northern side
of the Club's property.  The trial Court has held that the same forms part of
the Club's property donated by the plaintiffs' predecessors.  Whether defendant
8 could succeed in respect of entire suit schedule property?  The answer must be
in the negative.  Defendant 8 claims to have perfected the title by adverse
possession by reason of his long occupation as well as arbitral settlement,
which defendants claim.  It is a different question altogether, which is
considered infra.  So far as this point is concerned, the defendant 8 - it must
be held; cannot be conferred locus standi to question the entire decree in this
appeal.
        Insofar as the defendant 10 is concerned, he is a member of the Club.  His
right is only limited to claim the privileges as are conferred as a member of
the Club and cannot claim ownership rights to the suit schedule property nor he
claims to represent the Club.  As pleaded by the plaintiffs, defendant 8 along
with others was impleaded as party respondent in M.C.No.35 of 1978 (Ex.A2)
before the Sub Divisional Magistrate, Jammalamadugu.  Therefore, he or his legal
heirs cannot impeach the declaratory decree by the trial Court.  The point is
decided against the appellants accordingly.

Adverse possession
        The plaintiffs alleged that A B C D E site shown in the plaint plan was
encroached upon by the defendant 8.  He demurred taking two pleas.  First, that
he purchased A B C D E site on 25.5.1934 and constructed a mud wall on the
northern side of the suit schedule property where he put up cattle shed and
hayricks.  Secondly, he claimed to be in possession of the said portion from
1934 onwards and, therefore, perfected title by adverse possession.  As
indicated supra, even if the defendant 8 succeeds on any of these two pleas, he
would have locus standi only to the extent of Acs.0.011/2 of land and he cannot
be treated as adverse titleholder in respect of entire extent of suit schedule
property claimed by the plaintiffs.  By the date of commencement of trial,
defendant 8, M.Krishnaiah, died.  Defendants 12 to 16 came on record as his
legal heirs.  Not only that defendant 8 did not give his evidence but also none
of his legal representatives deposed his case.  No document of title evidencing
the alleged purchase of portion of land on 25.5.1934 was produced as evidence.
Absolutely there was no evidence at all.  Therefore, his plea of having
purchased portion of land fails.
        Coming to the question of adverse possession, when defendant 8 claims to
have purchased the property and settled the boundary dispute in arbitral
proceedings, one fails to understand as to how he can take such a plea of
adverse possession.  If a person claims to have come into possession as a
consequence to execution of a document, he cannot be permitted to take the plea
of adverse possession.
        In Karnataka Board of Wakf, the Supreme Court dealt with similar question
and observed as under.
A plaintiff filing a title suit should be very clear about the origin of title
over the property. He must specifically plead it. (See S.M. Karim v Bibi Sakina,
AIR 1964 SC 1254) In P.Periasami v P. Periathambi, (1995) 6 SCC 523, this Court
ruled that: (SCC p.527, para 5)
"Whenever the plea of adverse possession is projected, inherent in the plea is
that someone else was the owner of the property."
The pleas on title and adverse possession are mutually inconsistent and the
latter does not begin to operate until the former is renounced. Dealing with
Mohan Lal v Mirza Abdul Gaffar, (1996) 1 SCC 639, that is similar to the case in
hand, this Court held (SCC pp.640-41,para 4)
"4. As regards the first plea, it is inconsistent with the second plea. Having
come into possession under the agreement, he must disclaim his right thereunder
and plead and prove assertion of his independent hostile adverse possession to
the knowledge of the transferor or his successor in title or interest and that
the latter had acquiesced to his illegal possession during the entire period of
12 years i.e. up to completing the period his title by prescription nec vi, nec
clam, nec precario. Since the appellant's claim is founded on Section 53-A, it
goes without saying that he admits by implication that he came into possession
of land lawfully under the agreement and continued to remain in possession till
date of the suit. Thereby the plea of adverse possession is not available to the
appellant."

        Adverse possession - as is well known; is a hostile possession by clearly
asserting hostile title in denial of the title of true owner.  A party claiming
adverse possession must prove that his possession is peaceful, open and
continuous - nec vi, nec clam, nec precario.  The possession must be adequate in
continuity, in public and in extent to show that possession is adverse to the
true owner.  It must always start with a wrongful possession and be actually,
peaceably, exclusively hostile and continued over a statutory period of twelve
(12) years.  (see D.N. Venkatarayappa v State of Karnataka4).  Therefore, a
person who claims adverse possession must show: (a) on what date he came into
possession, (b) what was the nature of his possession, and (c) his possession
was open and undisturbed (see Mahesh Chand Sharma (Dr.) v Raj Kumari Sharma5).  
All these aspects have to be pleaded and proved.  No effort whatsoever is made
either to prove any of these aspects nor were they pleaded properly.  In this
appeal, the plea of adverse possession remains not proved.  This point is
decided accordingly against the appellants in Tr.A.S. No.1474 of 2001 holding
that they failed to prove the tile over the suit site.
      
WHETHER SUNDARACHARLU CLUB CEASED TO EXIST              
This point needs to be considered in two parts.  In first part, the focus has to
be on interpreting the so called gift deed, Ex.A1.  The plaintiffs argue that if
the activities of the Club are not carried on or stopped, the property demised
there under shall revert to the donors or their legal heirs.  The contesting
defendants 8, 10 and 11 opposed the plaintiffs contending that Ex.A1 does not
confer the right on the plaintiffs to take back the Club property.
Alternatively they contend that the activities of the Club never ceased or
stopped and were carried on regularly disentitling the plaintiffs to seek
declaration and possession.  Defendant 10 also raised a plea that the defeasance
clause in Ex.A1 was never intended to enable the donors to resume possession and
claim ownership, merely because some anti-social elements entered the premises
of the Club after its closure.  On the question of maintainability of appeals by
defendants 8 and 10, this Court has already held supra, that their appeals are
limited to the rights claimed by defendants 8 and 10 and, therefore, they may
not seriously impeach the defeasance clause.  Nevertheless the question whether
the Club ceased its activities (which is Part-2 of the point under
consideration), is inseparably connected with the interpretation of Ex.A1, it is
necessary to consider the purport of Ex.A1.

Law of Interpretation of Documents
General Principles
        There is no law specially dealing with interpretation of documents.
Although the Central General Clauses Act, 1897, or the A.P. General Clauses
Acts, to a limited extent, deal with interpretation of statutes, the principles
of interpretation of statutes are mostly well settled by reason of the precedent
law.  Similarly the subject 'the principles of interpretation of documents', is
part of voluminous legal prose mostly because of the precedent law.  In spite of
spending considerable time on research, this Court is not able to lay hands on
any one particular judgment, which comprehensively considers various rules of
interpretation of deeds and documents, be they fall in the category of Will,
Gift deed, Trust deed, Power of Attorney etc., which are subject to somewhat
different rules of interpretation.  Therefore, hereunder are considered; albeit
in brief - the rules of interpretation of deeds and documents.
Before doing so, it is beneficial to notice the definitions/concepts of 'deed',
'document' and 'instrument'.
        'Deed' in English Common Law is an instrument written in parchment or
paper, whereunto ten things are necessarily incident, viz., First, writing.
Secondly, in parchment or paper.  Thirdly, a person able to contract.  Fourthly,
by a sufficient name.  Fifthly, a person able to be contracted with.  Sixthly,
by a sufficient name.  Seventhly, a thing to be contracted for.  Eighthly, apt
words (if any) required by law.  Ninthly, sealing, and Tenthly, delivery.  A
deed cannot be written upon wood, leather, cloth, or the like, but only upon
parchment or paper, for the writing upon them can be least vitiated, altered or
corrupted.
        'Document' as per Section 3 of Indian Evidence Act, 1872 and Section 29 of
Indian Penal Code, 1860, means any matter expressed or described upon any
substance by means of letters, figures or marks, or by more than one of those
means, intended to be used, or which may be used, for the purpose of recording
that matter.
        'Instrument' as per Section 2(14) of Indian Stamp Act, 1899, includes
every document by which any right or liability is, or purports to be, created,
transferred, limited, extended, extinguished or recorded.
ODGERS' 'Construction of Deeds and Statutes' (1967 5th edn., by Gerald Dworkin -
1st Indian Reprint 1996) enumerates crystallized body of rules of interpretation
of deeds deduced from various common law decisions as follows.
TABLE - I
Rule No.
Remarks
I
The intention of the parties must be discovered, if possible, from the
expressions they have used.
The meaning of the document or of a particular part of it is therefore to be
sought for in the document itself.
II
Clear and unambiguous words prevail over any intention, but if the words used
are not clear and unambiguous, the intention will prevail.
The intention may prevail over the words used.
III
The plain, ordinary meaning of the words used is to be adopted in construing a
document.
Words are to be taken in their literal meaning.
IV
Whatever the instrument, it must receive a construction according to the plain
meaning of the words and sentences therein contained.
Literal meaning depends on the circumstances of the parties.
V
Extrinsic evidence does not mean evidence of the writer's intention but evidence
to enable the court to interpret the language used.
When is extrinsic evidence admissible to translate the language?
VI
Technical legal terms, or words of well-known legal import used by lawyers,
especially conveyancers, will have their technical legal import, "though the
testator uses inconsistent terms or gives repugnant or impossible directions."
Technical legal terms will have their legal meaning.
VII
Collecting the general intention from the instrument as a whole and inferring
that intention from the general frame of the deed.
Therefore the deed is to be construed as a whole.

        Herbert Broom's Legal Maxims, (1939, 10th edn by R.H.Kersley) in Chapter 8
gives "a general view of ... maxims as are of most practical utility in
construing statutes, deeds and other written instruments including Wills".
There are 17 rules of interpretation applicable to deeds and other written
instruments.  Some of these are also applicable to interpretation of statutes.
So as to keep the length of this judgment to the minimum and also bring all the
rules of interpretation of documents to one place the 17 principles/legal maxims
with the translation and the decision of Supreme Court making reference to these
maxims are given in the following table.
TABLE - II
Rule No.
Latin Maxim
English Meaning
Decisions of Supreme Court
1
2
3
4
I
Benign ae faciend ae sunt interpretationes propter simplicitatem laicorum ut res
magis valeat quam pereat
It means a liberal construction should be put upon written instruments, so as to
uphold them, if possible, and carry into effect the intention of the parties.
H.S.Vankani v SoGujarat6; Jyoti Harshad Mehta v Custodian7; K.P Mohammed Salim v  
CIT8; CIT v Lakshmi Machine Works9; M.P. Gopalakrishnan Nair v SoKerala10;
Standard Chartered Bank v Director of Enforcement11; Pratap Singh v
SoJharkhand12; ANZ Grindlay Bank v Director of Enforcement13
II
Argumentum ab inconvenienti plurimum valet in lege
An argument drawn from inconvenience is forcible in law

Mohinder Singh Gill v Chief Election Commr.,14 and Swantnraj v State of
Maharashtra,15
III
Ex praecedentibus et consequentibus fit optima interpretatio
A passage is best interpreted by reference to what precedes and what follows it
Puram Singh Sahni v Sundari Bhagwandas Kripalani16 and Provash Chandra Dalvi v
Bishwanath Banerjee17
IV
Noscitur a sociis

The meaning of a doubtful word may be ascertained by reference to the meaning of
words associated with it
State of UP v Jai Bir Singh18
Philips Medical Systems (Cleveland) Inc. v Indian MRI Diagnostic & Research
Ltd.19;
Deepak Agro Solutions Ltd., v Commr. of Customs20; J.Srinivasa Rao v GoAP21;
Godfray Phillips India Ltd v State of UP22


V
Verba chartatum fortius accipiuntur contra proferentem

The words of an instrument shall be taken most strongly against the party
employing them
Bank of India v K.Mohandas23
VI
Ambiguitas verborum latens verificatione suppletur nam quod ex facto oritur
ambiguum verificatione facti tollitur
Latent ambiguity may be explained by evidence; for an ambiguity which arises by
proof of an extrinsic fact may be removed in like manner24

VII
Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda
est
In the absence of ambiguity, no exposition shall be made which is opposed to the
express words of the instrument25

VIII
Certum est quod certum reddi potest

That is sufficiently certain which can be made certain.
Vimlesh Kumari Kulshreshta v Sambhaji Rao26; Juthika Mulick v Mahendra Yashwant  
Bal27
IX
Utile per inutile non vitiatur

Surplusage does not vitiate that which in other respects is good and valid

X
Falsa demonstratio non nocet

Mere false description does not vitiate, if there be sufficient certainty as to
the object

XI
Verba generalia restringunter ad habilitatem rei vel personae

General words may be aptly restrained according to the matter or person to which
they relate

XII

Expressio unius est exclusio alterius expressum facit cessare lacitum
The express mention of one thing implies the exclusion of another
Union of India v Tulsimram Patel28
ADM, Jabalpur v Shiv Kant Shukla29
XIII
Expressio eorum qu ae tacite insunt nihil operatur
The expression of what is tacitly implied is inoperative

XIV
Verba relata hoc maxime operantur per
referentiam ut in eis inesse videntur
Words to which reference is made in an instrument have the same operation as if
they were inserted in the clause referring to them

XV
Ad proximum antecedens fiat relatio, nisi impediatur sententia
Relative words refer to the next antecedent, unless by such construction the
meaning of the sentence would be impaired

XVI
Contemporanea expositio est optima et fortissima in lege
The best and surest mode of construing an instrument is to read it in the sense
which would have been applied when it was drawn up
Bhuwalka Steel Industries Ltd v Bombay Iron & Steel Labour Board30
T.N.Electricity Board v Status Spg. Mills Ltd31
XVII
Quihaeret in litera haeret in cortice
He who considers merely the letter of an instrument goes but skin-deep into its
meaning.
The intention and parties of the document is more relevant than words used in
the document
Ashok Singh v Asst. Controller of Estate Duty32

Before further analyzing and synthesizing the above principles, a reference may
be made to Ramana Dayaram Shetty v International Airport Authority of India33,
wherein it was held that, "the rules of interpretation are applicable alike to
documents as to statutes ...".  It may be noted that in addition to the general
principles, while construing the documents like "Will", "Gift deed", "Power of
Attorney" and trust deed, abundant caution should be exercised because more
often than not these are the documents, which are executed without active
participation or with minimal participation of the other party to the documents,
such as legatee, donee or trustee.  By reason of this, these documents need to
be strictly interpreted having regard to the context, the attending
circumstances and the subject matter and the purpose of executing each of these
documents, a further reference is made to this aspect infra.
Some of the principles have come up for consideration before the Supreme Court
to which a reference is made above.  Keeping in view these, it is proposed to
further deduce the following principles, which are considered with reference to
decided cases.
The first principle is to construe the document as a whole.  More often than
not, the Court will face a dilemma as to whether a document is (i) a sale deed
or an agreement of sale; (ii) a Will or settlement deed; (iii) a trust deed or a
gift deed etc.  It is also common in Courts that the rights and obligations
created under a document are but in issue with regard to the extent of right/
obligation.  The limitations in enforcement of rights and discharge of
obligations and the scope and extent of the covenants with regard to the subject
matter of the document, is frequent question.  Unless a document is thoroughly
scrutinized and read as a whole, it would not be possible to know the intention
of the parties with regard to all the aspects mentioned hereinabove.  Quihaeret
in litera haeret in cortice and Contemporanea expositio est optima et fortissima
in lege very lucidly explain this principle.  In Ashok Singh while interpreting
the term 'levy' in Section 73A of the Estate Duty Act, 1953, the Supreme Court
relied on the maxim Quihaeret in litera haeret in cortice.
In T.N. Electricity Board, the Government by notification dated 14.2.1997
withdrew concessions granted earlier to new high tension industries in respect
of electricity tariff.  An exception was made in favour of industries 'set up'
before 15.2.1971.  This was clarified by a letter dated 01.8.1997 to the effect
that 'set up' would mean 'obtained service connection'.  Withdrawal of tariff
concession and the clarificatory letter were assailed.  The learned single Judge
dismissed the writ petitions.  Appeals were filed to the Division Bench.  During
the pendency, the Government issued notification dated 07.1.2000 giving further
clarification with regard to the meaning of 'set up'.  The Division Bench,
however, ignored the pendente lite notification and disposed of the appeals
holding that, "if the high tension industry had been erected before 15.2.1997
they would be eligible for concessional electricity tariff."  The Supreme Court
relied on the maxim Contemporanea expositio and while holding that, "a word
cannot be assigned a meaning in vaccum  ... ...  it has to be read in the
context in which hit has been used and while doing so considering the executive
order is not barred" observed as follows.
        The clarification issued by the State during pendency of the appeals
should have, therefore, been considered by the High Court in its proper
perspective. If it is clarificatory in nature, it could be given a retrospective
operation. Such a question, however, should have been posed and answered.
Furthermore, the letter dated 1.08.1997 was issued as some confusion arose. When
a subordinate legislation is made by the State Government, it must be done in
terms of the constitutional provision. An executive order is also issued keeping
in view the rules and executive business. It may not have the force of law but
the same may come within the purview of the well-known principle of
contemporaneous exposito. Rules of executive construction are also relevant.

        In Bhuwalka Steel Industries Ltd, the Supreme Court referred to the maxim
Contemporanea expositio est optima et fortissima in lege and observed that even
if the person who dealt with the statute understood in a particular manner, that
does not prevent the Court giving the true construction and that generally the
principle has no application to modern statutes.  It may be observed that while
interpreting a document nothing prevents the Court to read it in the sense as
understood when the document was drawn up.  
        The second principle is to understand the meaning of a document or a part
of it from the document itself.  The legal maxims relevant to this are Quoties
in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est and
Verba generalia restringunter ad habilitatem rei vel personae.  In addition to
these, the legal maxims Ex antecedentibus et consequentibus fit optima
interpretation, Noscitur a sociis, Certum est quod certum reddi potest, Utile
per inutile non vitiatur, Expressio unius est exclusio alterius expressum facit
cessare lacitumi, Verba relata hoc maxime operantur per referentiam ut in eis
inesse videntur and Ad proximum antecedens fiat relatio, nisi impediatur
sententia furnish subsidiary rules while discovering the intention of the
parties.  In Table-II above, the decisions of the Supreme Court applying
relevant legal maxim, have been referred to.  But herein below a brief reference
is made to some of these judgments.
In Provash Chandra Dalvi, referring to N.E. Railway v Hastings34 the Supreme
Court held that, "every contract is to be construed with reference to its object
and the whole of its terms. The whole context must be considered to ascertain
the intention of the parties. It is an accepted principle of construction that
the sense and meaning of the parties in any particular part of instrument may be
collected 'ex antecedentibus et consequentibus' every part of it may be brought
into action in order to collect from the whole one uniform and consistent sense,
if that is possible".  It was further held that, "In construing a contract the
court must look at the words used in the contract unless they are such that one
may suspect that they do not convey the intention correctly. If the words are
clear, there is very little the court can do about it. In the construction of a
written instrument it is legitimate in order to ascertain the true meaning of
the words used and if that be doubtful it is legitimate to have regard to the
circumstances surrounding their creation and the subject-matter to which it was
designed and intended they should apply".
        In Puram Singh Sahni, the question was whether the agreement between the
parties is 'lease' or 'licence'.  The Supreme Court relied on Ex praecedentibus
et consequentibus fit optima interpretatio and held that, "the sense and meaning
of the parties has to be collected from the context and every part of the
agreement has to be brought into action to collect from the whole one uniform
and consistent sense".
        Noscitur a sociis is the maxim which postulates that the meaning of
doubtful words would be ascertained by reference to the meaning of the words
associated with it.  In Godfray Phillips India Ltd Constitution Bench relied on
the maxim.  Referring to Advocate General v Prince Ernest Augustus of Hanover35
observed as under.
We are aware that the maxim of noscitur a sociis may be a treacherous one unless
the "societas" to which the "socii" belong, are known. The risk may be present
when there is no other factor except contiguity to suggest the "societas". But
where there is, as here, a term of wide denotation which is not free from
ambiguity, the addition of the words such as "including" is sufficiently
indicative of the societas. As we have said, the word "includes" in the present
context indicates a commonality or shared features or attributes of the
including word with the included.

The third principle is that the words used in a document are to be given literal
meaning.  There are five legal maxims relatable to this principle.  They are
shown as Rules I, V, VI, X and XIII in Table-II supra.  The first of these is ut
res magis valeat quam pereat.  The Supreme Court applied this maxim in many
cases and held that, "a statute must be read always in such a manner that it
would not lead to absurdity and make the instrument workable."  Some of the
tests are referred in Column-4 of Table-II.  The subsidiary rules of third
principle are those shown as Rules III, IV, V and VI of Table-I and the
corresponding legal maxims already referred to in the above paragraph.  Literal
meaning depends on the circumstances of the parties and technical legal terms
will always be given their legal meaning.  When the language is very clear, the
interpreter is precluded from supplying the words or reading something depending
on the oral evidence.  It is well settled that when the language is clear, oral
evidence is not permissible.  But as postulated by the maxim Ambiguitas verborum
latens verificatione suppletur nam quod ex facto oritur ambiguum verificatione
facti tollitur, latent ambiguity may be explained by evidence because the
ambiguity often arises by proof of an intrinsic fact, which may be removed in
like manner.  Sections 91 to 95 of the Indian Evidence Act, 1872 adumbrate this
principle.
The fourth principle is that in the event of the intrinsic incongruities and
inconsistencies flowing from the words and language used in the document, "the
intention would prevail over the words used."  The intention of the parties has
to be determined from the attending circumstances leading to the transaction.
In a given situation, post-execution conduct of the parties and partial or full
discharge of obligations would also determine the intention of the parties.  The
fourth principle is an exception to the first three principles.  If the language
used in the document is very clear, while determining the nature of the
document, nature of rights and obligations flowing from the document cannot be
inferred by resorting to the fourth principle.
An attempt has been made supra to gather all the principles of interpretation of
documents in brief with reference to Odger's and Broom's treatises as well as
the precedents.  To reiterate most of the principles of interpretation of
documents are also the principles applied while interpreting the statutes.  The
precedents referred to above mostly deal with interpretation of provisions of
the statutes and the case law dealing with interpretation of documents is not
much.  Therefore an interpreter of the documents, should be cautious in applying
the precedent and choose appropriate principle depending on the particular
controversy that arises.
  It is also settled law that every deed or document should be interpreted
keeping in view the implied terms.  This is important while construing
compulsorily registerable documents, namely, exchange deed (Section 119 of
Transfer of Property Act), gift deed (Section 127 of Transfer of Property Act),
mortgage deed (Section 60 of Transfer of Property Act), relinquishment deed or
sale deed (Section 55 of Transfer of Property Act).  The following implied terms
need be kept in mind: (i) Presumption is against adding to contracts of terms
which parties have not expressed; (ii) There are documents where obviously some
term is to be implied, if the intention of parties is not to be defeated; and
(iii) Term depends on a rule of law (e.g., Section 64-A of Sale of Goods Act)
and Contract for legal purpose implies a term not to use the contract for
illegal purpose.  Having summarized the general principles, this Court would now
consider the principles in relation to 'power of attorney', 'gift deed' and
'Will'.

Interpretation of "Power of attorney"
        The Power of Attorney Act, 1882 defines a 'power of attorney' to include
any instruments empowering a specified person to act for and in the name of
person executing it.  It is an "authority whereby one is said in turn, stead or
place of another to act for him (Ram deo v Lalu Natha36).  Section 2(21) of the
Indian Stamp Act 1899 describes 'Power of attorney' to include any instrument
(not chargeable with a fee under the law relating to Court fee for the time
being in force) empowering a specified person to act for and in the name of the
person executing it.  The power of attorney is conferment of authority whereby
the person empowered is authorized to do any lawful act instead of another
commonly called the principal.  The contract of agency which is dealt with in
Chapter X of the Indian Contract Act, 1872 (Sections 182 - 238) is also
regulated by creation of execution of 'power of attorney'.  It is common that
principal may either execute a general power of attorney or special power of
attorney as per the need.  In the former, the authority to the donee (person in
whose favour power is conferred) is to do all acts for and on behalf of the
principal in relation to a tangible or intangible property or right.  In the
latter the donee is given power only to do a specified act in the manner
provided and as mandated by the principal like executing a document to sell and
register property, to receive money and/or to incur expenditure as directed etc.
The disputes often arise in the Civil Courts with regard to the scope and extent
of the authority or power given by the principal to the donee.  Such disputes
may arise between the donor and donee of the 'power of attorney' or between the
donee and third parties.
        The law is well settled with regard to the interpretation of 'power of
attorney'.  In P.M.Desappa Nayanim Varu v Ramabhaktula Ramaiah37, Justice Koka  
Subba Rao (as he then was) quoted with approval the following principles
governing the construction of 'power of attorney' as stated in Bowstead on
'Agency' (6th Edn., at p.73)
"Powers of attorney must be strictly pursued, and are construed as giving only
such authority as they confer expressly or by necessary implication. The
following are the most important rules of construction:
1. The operative part of the deed is controlled by the recitals.
2. Where authority is given to do particular acts, followed by general words,
the general words are restricted to what is necessary for the proper performance
of the particular acts.
3. General words do not confer general powers, but are limited to the purpose
for which the authority is given, and are construed as enlarging the special
powers when necessary and only when necessary for that purpose.
4. The deed must be construed so as to include all medium powers necessary for
its effective execution."

        In Tmblo Irmaos Ltd v Jorge Anibal Matos Sequeira38, a three Judge Bench
of the Supreme Court held that purpose for which a 'power of attorney' is
executed must appear primarily from the terms of the document itself.  When
there is unresolved problem left by the language of the document, the Court need
to consider the manner in which the words used would be related to the facts and
circumstances of the case or the nature of the dealings.  The nature and object,
the provisions and the language in the document are all relevant in construing a
'power of attorney'.  The Supreme Court pointed out the following settled rules
applicable in the construction of the 'power of attorney'.
(i) First, that, a word used in a document has to be interpreted as a part of or
in the context of the whole;
(ii) Secondly, the purpose of the powers conferred by the power of attorney have
to be ascertained having regard to the need which gave rise to the execution of
the document, the practice of the parties, and the manner in which the parties
themselves understood the purpose of the document; and,
(iii) Thirdly, that, powers which are absolutely necessary and incidental to the
execution of the ascertained objects of the general powers given must be
necessarily implied.

        It was further held that the implied powers under an authority cannot go
beyond the scope of the general power of the 'power of attorney'.  The relevant
observations are as follows.
In this case, the purpose of the general power was subordinated to the specific
powers given which determined the object of the power of attorney. There is no
deviation in this case from the general rules of construction set out above by
us. We have indicated above that implied powers cannot go beyond the scope of
the general object of the power but must necessarily be subordinated to it. In
fact, in a case like the one before us, where a general power of representation
in various business transactions is mentioned first and then specific instances
of it are given, the converse rule, which is often specifically stated in
statutory provisions (the rules of construction of statutes and documents being
largely common), applies. That rule is that specific instances do not derogate
from the width of the general power initially conferred. To such a case the
ejusdem generis rule cannot be applied. The mode of construing a document and
the rules to be applied to extract its meaning correctly depend not only upon
the nature and object but also upon the frame, provisions, and language of the
document. In cases of uncertainty, the rule embodied in proviso 2 to Section 92
of the Evidence Act, which is applicable to contracts can be invoked. Thus, the
ultimate decision, on such a matter, turns upon the particular and peculiar
facts of each case.
(emphasis supplied)

Interpretation of "Gift deed"
        In construing a document claimed to be a gift deed, the question that
commonly confronts the interpretator is regarding the nature of the document
itself.  The issues regarding the nature of the disposition would arise with
consistent regularity as to whether a document is a gift or settlement or Will
or trust deed.  In addition to this, the intention of the donor and donee under
a gift deed with regard to the property demised and/or the nature of right given
to the donee or the extent of the right retained by the donor are also issues
which need to be resolved by the Court depending on the facts of each case.
        As defined in Section 2(24) of the Stamp Act any non testamentary
disposition in writing, either of movable or immovable property, made for any
religious or charitable purpose, for the purpose of distributing property of the
settler or in consideration of marriage is 'settlement deed'.  A 'settlement
deed' can also a document of declaration of trust in which event there is
disposition of property to be held in trust for a named or indicated purposes
(see S.N.Mathur v Board of Revenue39).  As per the definition of 'settlement
deed' as in Section 2(24) of Stamp Act, a gift deed is also one method of
disposition of property by settlement.  Be that as it is, Section 122 of the
Transfer of Property Act, 1882, defines the 'gift' as the transfer of certain
existing movable or immovable property made voluntarily and without
consideration by one person called the donor to another called donee and
accepted by or on behalf of the donee.  Whether it is a settlement deed or gift
or a Will?  The Courts have formulated number of tests.  These are (i) the name
by which the document is styled; (ii) registration of the document; (iii)
reservation of life estate in favour of executant; (iv) express words as to when
possession passed; (v) use of the present or future tense in the document; and
(vi) reservation of the power of revocation.
        If the executant imposes self-restriction with reference to the right to
sell or create encumbrances though he is in possession of the property after
execution of the document, the document is a 'settlement deed' and not a 'Will'.
In Namburi Basava Subrahmanyam v Alapati Hymavathi40, the Supreme Court held  
that, "nomenclature of the document is not conclusive and that the recitals in
the document as a whole and the intention of the executant and acknowledgement
thereof by the parties are conclusive.  The Court has to find whether the
document confers any interest in the property in praesenti so as to take effect
intra vivos and whether an irrevocable interest thereby, is created in favour of
the recipient under the document, or whether the executant intended to transfer
the interest in the property only on the demise of the settler.  In the former
case it is a gift/settlement and in the latter it is a Will."
        In Subbegowda v Thimmegowda41, Justice Lahoti (as he then was) considering
the question as to the nature of the document styled as 'settlement deed'
elucidated the principles as follows.
For the interpreter of documents it is common knowledge that a transfer of
property or a creation of interest therein may be accompanied by conditions,
covenants or restraints. Condition may be condition precedent - a condition
which must be performed before the grant or alienation takes effect to create an
interest in property, or may be condition subsequent - a condition which has an
effect of enlarging or defeating the interest already created or vested. In
either case the condition will be annexed with the estate and would run with the
same. In Philip John Plasket Thomas v CIT, AIR 1964 SC 587, vide para 14, this
Court has dealt with conditions - precedent and subsequent, in the context of
gift of shares. A covenant is not annexed with the estate and runs independently
of it which may give rise to a cause of action for specific performance or for
an action in damages. A restraint or a limitation has the effect of curtailing
the quantum of the estate affected thereby.

        Yet again relying on Raj Bajrang Bahadur Singh v Thakurain42, it was held
as under.
Though called a settlement deed, what was the intention of the executant behind
executing the deed? The question of construction of a document is to be decided
by finding out the intention of the executant, firstly, from a comprehensive
reading of the terms of the document itself, and then, by looking into - to the
extent permissible - the prevailing circumstances which persuaded the author of
the document to execute it. If the executant intended to transfer property the
court would lean in favour of holding the transferee having been vested with
interest in the property. Where an intention to transfer property within the
meaning of Section 5 of the Transfer of Property Act, 1882 cannot be spelled
out, the document will be given effect to as it reads and as is explicit from
what is set out in the deed itself.

        In a dispute with regard to the property and right given in a gift deed,
in addition to general principles of construction, the court has to look to
Sections 122 to 129 of Transfer of Property Act.  If there is any conflict or
inconsistency in the document itself, there is no bar for constructing such a
gift deed keeping in view the oral evidence as is permissible under Proviso (1)
to proviso (6) of Section 92 of the Indian Evidence Act, 1872.  As the relevant
decisions have been referred to supra, the principles governing construction of
Will are taken up in the next portion of this judgment.


Interpretation of "Will"
        "Will" means the legal declaration of intention of a testator with respect
to his property which he desires to be carried into the effect after his death
(Section 2(h) of the Indian Succession Act, 1925).  Part VI (Sections 57 to 191)
thereof deal with testamentary succession.  Sections 74 to 111 contain rules of
construction of Wills.  To be a valid testamentary disposition, a Will shall
have to be signed by the testator which shall be attested by two or more
witnesses each of whom has seen the testator sign the Will.
        The principles of constructions of Wills may be summed up as follows: (i)
to the extent possible effect should be given to every disposition in the Will;
(ii) if there are repugnant provisions conferring successive interests, first
interest created is valid; (iii) if the first interest created is not valid,
Court as far as possible should give effect to every testamentary intention in
the Will; (iv) ascertain the intention of words used; (v) Court to put itself in
testators on chair; (vi) the whole Will should be read; (vii) construction
leading to intestacy be avoided; (viii) give effect to every disposition (see
Navneet v Gokul43).  It is necessary to remember that as per Section 88 of the
Indian Succession Act, if inconsistent bequeath is made to two persons, the gift
in favour of other person cannot be ignored.  Further if one clause makes
absolute gift and other clause curtails the bequeath, the restrictive clause
being repugnant to unqualified bequeath should be ignored.
        The propounder of a Will is required to prove Will in the Court as per
Section 68 of Evidence Act and Section 63(c) of Indian Succession Act, by
examining one or more attesting witnesses.  When such proof of execution of Will
is offered and accepted, more often than not, the last wish of testator has to
be respected and disposition in the Will are to be given effect to.
Nevertheless if caveator (challenger of Will) alleges and proves fraud, coercion
or undue influence in execution of Will, the Court has to reject the Will.  In
addition to these yet another situation where the Will cannot be treated as last
testamentary conscious disposition by testator is, when execution of the Will is
surrounded by suspicious circumstances (see H.Venkatachala Iyengar v B.N.
Thimmajamma44, Shashi Kumar Banerjee v Subodh Kumar Banerjee45 and Pinnaka      
Hanumantha Rao v Garlapati Dhanalakshmi46).  
In Ramachandra v Hildra Brite47, the Supreme Court observed that 'it is one of
the cardinal principles of construction of Wills that to the extent that it is
legally possible, effect should be given to every disposition contained in the
Will unless the law prevents effect being given to it and that if there are two
repugnant provisions conferring successive interests, if the first interest
created is valid, the subsequent interest cannot take effect and in such a case
the Court will proceed to the farthest extent to avoid repugnancy, so that
effect could be given as far as possible to every testamentary intention
contained in the Will.  The Supreme Court in the said decision gave the
following illustration.
It is for this reason that where there is a bequest to A even though it be in
terms apparently absolute followed by a gift of the same to B absolutely "on" or
"after" or "at" A's death, A is prima facie held to take a life interest and B
an interest in remainder, the apparently absolute interest of A being cut down
to accommodate the interest created in favour of B.

In Navneet, the Supreme Court referred to earlier judgments  in  Gnanambal
Ammal  v  T.Raju Ayyar48, Ram  Gopal  v  Nand  Lal49,  Raj Bajrang Bahadur Singh
v Bakhtraj Kuer50, Pearey Lal v Rameshwar Das51 and Ramachandra and laid down  
the following principles for construction of a Will.
i) In construing a document whether in English or in vernacular the fundamental
rule is to ascertain the intention from the words used; the surrounding
circumstances are to be considered; but that is only for the purpose of finding
out the intended meaning of the words which have actually been employed;
ii) In construing the language of the will the court is entitled to put itself
into the testator's armchair and is bound to bear in mind also other matters
than merely the words used.  It must consider the surrounding circumstances, the
position of the testator, his family relationship, the probability that he would
use words in a particular sense. But all this is solely as an aid to arriving at
a right construction of the will, and to ascertain the meaning of its language
when used by that particular testator in that document;
iii) The true intention of the testator has to be gathered not by attaching
importance to isolated expressions but by reading the will as a whole with all
its provisions and ignoring none of them as redundant or contradictory;
iv) The court must accept, if possible, such construction as would give to every
expression some effect rather than that which would render any of the
expressions inoperative.  The court will look at the circumstances under which
the testator makes his will, such as the state of his property, of his family
and the like.  Where apparently conflicting dispositions can be reconciled by
giving full effect to every word used in a document, such a construction should
be accepted instead of a construction which would have the effect of cutting
down the clear meaning of the words used by the testator.  Further, where one of
the two reasonable constructions would lead to intestacy, that should be
discarded in favour of a construction which does not create any such hiatus; and
v) It is one of the cardinal principles of construction of wills that to the
extent that it is legally possible effect should be given to every disposition
contained in the will unless the law prevents effect being given to it.  Of
course, if there are two repugnant provisions conferring successive interests,
if the first interest created is valid the subsequent interest cannot take
effect but a Court of construction will proceed to the farthest extent to avoid
repugnancy, so that effect could be given as far as possible to every
testamentary intention contained in the will.

In Bhura v Kashiram52, the Supreme Court reiterated the above principles.
Nextly, It is necessary to refer to Section 88 of the Indian Succession Act,
1925 (hereafter called 'the Succession Act'), which reads as under.
        Where two clauses or gifts in a will are irreconcilable so that they
cannot possibly stand together, the last shall prevail.
Illustrations.
(i) The testator by the first clause of his will, leaves his estate of Ramnagar
to A and by the last clause of his will leaves it to B and not to A.  B will
have it.
(ii) If a man at the commencement of his will gives his house to A, and at the
close of it directs that his house shall be sold and the proceeds invested for
the benefit of B, the latter disposition will prevail.

Interpreting Section 88 of the Succession Act, in V.Subbareddi v Basivireddi53,
this Court held that where an absolute gift of property is made under one clause
of the Will and by a later clause the mode of enjoyment of that property or the
right of management of it is sought to be curtailed, it can be held that
restrictions sought to be placed on the enjoyment or management of the property
are repugnant to be unqualified and absolute estate given by the previous clause
of the Will, but the position will be far different in a case where two gifts,
one wholly inconsistent with the other, are made under the Will in favour of two
different persons in respect of the same property, the gift in favour of other
person cannot be ignored.  If the situation presents any difficulty, then only
Section 88 of the Succession Act should be resorted to.
Interpretation of Ex.A1, executed by CSN and CSK
Ex.A1 is in Telugu language.  It reads as under.
Document No.1127 of 1938
13.5.1938 ?????????? ??? ??????? ??????? ???????? ?? ??? ?????? ?????    
??????????? ???????? ??????? ????? ??? ???????????? ??????????? ?????? ?????        
??????????? ???????? ????? ???????? ????? ?????? ????? ?????? ???? ???????????        
??????? ???? ???????? ???????? (2) ???????? ???? ????? ?????? ???? ????? ????    
???????? ??? ??????? ???????? ???? ???? (3) ???? ???? ????? ?????? ???? ?????    
???? ????? ????? ?????? ???????? ??? ?????? ?????? ??????? ???? ???????????      
???????? ????? ???????? ???? ????? ?????? ???? ????? ???? ???? ???????????? ????      
???????? ??????????????? ? ?????? ???? ????????? ?????? ??? ????????? ?????      
???? ??????????? ???????? ??????????? ????? ?????? ?????????? ???????????        
???????? ????? ??? ?????? ???????? ??????? ??????? ??????? ?????????? ??????      
????? ???? ???????? ???? ??????? ?? ????????? ???? ? ??????? ??????????      
????????? ??.50 ???? ??????? ??????? ?? ???? ????? ?????? ?? ??????? ??    
????????? ???? ???? ??????? ?????? ?? ????????? ???? ???????? ???? ???? ???????      
???? ??????? ????????? ??????? ????????? ?? ??????????? ???? ???? ????????????        
???? ??????????? ???????????? ??????? ??? ???? ?????? ??????????? ???? ???      
????????????? ??????? ????????? ?????????.  ???????? ?? ???????????? ?? ???????      
????????? ?????? ?????? ???? ???????? ????? ????? ????????? ?????      
??????????????? ???? ???? ?? ???????? ???? ??????????? ???? ?? ????????????      
????????? ????? ???? ??? ????????? ?????? ??? ?????????.    
????????
??? ???????????? ??????????? ??? ?? ?? ????? ??????????? ?????? ??????      
????                ??.???.                 ?. ??.                       ???
          ??????            455                  3.57                   28.90 ?
???? 0.67 ???? ??? ??????? ???? ????? ???? North-West ?????? ????? ??????? 200    
??????? ???????, ?????? ???? 150 ??? ???? ??????? ?????.  
?????? ??????????
?????? - ????? ????????, ?????? ????? ???????? ??????,  
?????? ??????? ??? ??????? ??????? ?????.  
??????? T B ?????? ????? -
? ?????????????? ????? ?????.  
CS ?????? ????????  
CS ???????????????  

The English translation of the highlighted portion, which is contentious issue
in this case, reads as under.
During course of time for any reason Club ceases to function schedule property
shall revert to us or our successors and you or your successors shall have no
right.

Before considering the effect and purport of the deed under which the
predecessors of the plaintiffs demised the property for running Sundaracharlu
Club, it is necessary - as rightly pointed out by the Senior Counsel - to
understand the nature of Ex.A1.  He does not specifically say it is a gift deed
though the plaint allegation is that CSK and CSN gifted the property for the
Club.  Mere description of the deed is not conclusive.  Therefore it is
necessary to consider this aspect of the matter.  Section 126 of Transfer of
Property Act deals with the suspension or revocation of the gift.  If the donor
and donee agree on the happening of any specified event not depending on the
will of the donor, the gift shall be suspended or revoked.  This cannot be read
in isolation.  It is a general section, which is controlled by Section 10 of
Transfer of Property Act laying down that a transfer subject to condition or
limitation absolutely restraining the transferee from parting or disposing of
the interest in the property is void except in the case of a lease where such
condition is for the benefit of the lessor.
In Jagdeo Sharma v Nandan Mahto54 it was held that, "if Section 126 is read in
isolation then the argument of Mr.Singh is correct, but in my view Section 126
cannot be read in isolation and has to be read along with Section 10 of the
Transfer of Property Act which says that any stipulation completely restraining
the donee from transferring the gifted property is void.  If read together,
which must be so read, the only reasonable conclusion that one can arrive at is
that Section 126 is the general section which is controlled by Section 10 and if
that is done, then it is obvious that the stipulation in Ext.1 completely
restraining the donee from alienating the gifted property is void. "
In Philip John Plasket Thomas v. Commissioner of Income-tax, Calcutta55 the
Supreme Court while construing Section 16(3)(a)(iii) of the Income Tax Act,
1922, held that, "a gift may be made subject to conditions, either precedent or
subsequent.  A condition precedent is one to be performed before the gift takes
effect; a condition subsequent is one to be performed after the gift had taken
effect, and, if the condition is unfulfilled will put an end to the gift."
Ex.A1, on a true construction, is not a gift deed.  CSN and CSK executed the
document transferring the suit schedule property for running the Club without
any right of alienation.  The transfer of property is also conditional that as
long as Club is run the transferees or their successors can enjoy the property
and if the Club activities are not carried on, the property shall revert to the
transferors or their legal heirs.  It is a licence as rightly pointed out by the
plaintiff's Senior Counsel.  There was no transfer of property.  This was made
clear in positive terms as well as negative terms.  The right to resume the land
was reserved and retained by the transferors.  Applying the principles of
interpretation of documents, as discussed supra, this Court is convinced that
argument of the defendants that the condition of inalienability in Ex.A1
rendered such condition void, cannot be accepted as Ex.A1 is not a gift deed.
Then the question is whether the Club ceased its activities.  There is oral
evidence on both the sides on this aspect.  D.W.1, who was President of the Club
during 1975-76, admits that the said Club was abolished during his tenure and
that there were disputes between him and Ramana Reddy.  Defendant 10 as D.W.12,  
and tennis picker, D.W.7, only speak about tennis club and not the activities of
entire club.  Therefore, on probabilities, an inference can be drawn that the
Club activities ceased.  Merely because there were self-proclaimed members and
there were certain activities other than those which were carried on earlier, it
cannot be said that the Club was still carrying on activities.  The other strong
circumstances which improbablise the case of defendant are: (i) In Ex.A2 Sub
Divisional Magistrate directed to close the Club and handover the property to
those who succeed in the suit; (ii) the Club was closed on the orders of RDO by
way of prohibitory order; (iii) defendant 8 occupied Acs.0.011/2 for
construction of two rooms on the northern side and thus the Club property was
alienated by the transferees; and (iv) defendants did not oppose the suit on the
ground that the Club activities were being carried on the ground that they have
vested interest in the property.  This Court already held that Ex.A1 is a
licence granted by the predecessors of the plaintiff and that they are entitled
to seek resumption of the land especially when they proved that the Club stopped
its activities and it became a place for criminal activities and went into
disrepute.  This point is answered accordingly in favour of plaintiffs against
the defendants.
In the result, for the above reasons, these appeals are devoid of any merit and
are accordingly dismissed with costs.

?1 (2003) 8 SCC 413 : AIR 2003 SC 3397
2 (2004) 1 SCC 287 : AIR 2003 SC 3789
3 (2004) 10 SCC 779
4 (1997) 7 SCC 567 : AIR 1997 SC 2930
5 (1996) 8 SCC 128 : AIR 1996 SC 869
6 (2010) 4 SCC 301 (paras 43; 48)
7 (2009) 10 SCC 564 (paras 33; 35)
8 (2008) 11 SCC 573 (para 14)
9 (2007) 11 SCC 126 (paras 12 and 13)
10 (2005) 11 SCC 45 ((paras 55 and 56)
11 (2005) 4 SCC 530  (paras 63 and 72)
12 (2005) 3 SCC 551 (paras 77, 81 and 103
13 (2004) 6 SCC 531
14 (1978) 1 SCC 405
15 (1975) 3 SCC 322
16 (1991) 2 SCC 180
17 1989 Supp (1) SCC 487 : AIR 1989 SC 1834  
18 (2005) 5 SCC 1
19 (2008) 10 SCC 227 (paras 14, 15 and 16)
20 (2008) 8 SCC 358
21 (2006) 12 SCC 607 (para 14)
22 (2005) 2 SCC 515 (paras 75, 76, 77, 79 & 81)
23 (2009) 5 SCC 313 (paras 28, 31 and 32)
24 Ss.91 to 95 of Evidence Act 1872
25 Ss.91 to 95 of Evidence Act 1872
26 (2008) 5 SCC 58 (para 24)
27 (1995) 1 SCC 560 (paras 19, 20 and 31 to 34)
28 (1985) 3 SCC 398
29 (1976) 2 SCC 521
30 (2010) 2 SCC 273
31 (2008) 7 SCC 353
32 (1992) 3 SCC 169
33 AIR 1979 SC 1628
34 (1900) A.C. 260
35 (1957) A.C. 436 : (1957) 1 All ER 49 (HL)
36 AIR 1937 Nag 65
37 AIR 1952 Mad 559 : (1951) II MLJ 43
38 (1977) 3 SCC 474 : AIR 1977 SC 734
39 (2009) 13 SCC 301 : 2009 (2) ALD 112 (SC)
40 (1996) 9 SCC 388 : AIR 1996 SC 2220
41 (2004) 9 SCC 734 : AIR 2004 SC 2428
42 AIR 1953 SC 7
43 AIR 1976 SC 794
44 AIR 1959 SC 443
45 AIR 1964 SC 529
46 2007 (2) ALD 435
47 AIR 1964 SC 1323
48 AIR 1951 SC 103
49 AIR 1951 SC 139
50 AIR 1953 SC 7
51 AIR 1963 SC 1703
52 AIR 1994 SC 1202
53 1966 (1) An.W.R. 272
54 AIR 1982 Pat 32
55 AIR 1964 SC 587