- Section 93 - Pradeep Kumar vs Mahaveer Pershad And Others.
- Bench: Justice T C Rao
Facts:
- The plaintiff claims that he is the owner of the northern portion of three-storeyed building measuring 94 square yards within the premises situated at Nampally in Hyderabad, having purchased the same under a registered sale deed dated 27-2-1971 from one Sakinder Begum; and that the southern portion thereof belongs to his adoptive mother by name Triveni Bai, wife of Madanlal. The southern portion of the building was given in trust for establishing a 'Dharma Sala.'
- The Trust wanted to establish a hospital in the year 1979. Therefore, under an oral agreement of tenancy with effect from 1-10-1979 the President of the Trust obtained the plaintiff's portion i.e. northern portion of the suit building on a monthly rent of Rs. 1,000/- under the name and style of Triveni Madanlal Charitable Hospital in the whole of the building including the southern portion. Apart from the rent, it was agreed to bear and pay the electricity and water charges, and property tax.
- However, since the date of tenancy i.e. from 1-10-1979 the defendants committed default despite the request of the plaintiff. When the rents had not been paid, the plaintiff got a notice of termination of tenancy dated 20-12-1981 issued to the defendants determining the tenancy with effect from 1-2-1982. The plaintiff, therefore, claimed rent for a period of three years towards arrears and the profits from 1-2-1982 till realisation.
Issue:
Whether the plaint schedule property is covered by the trust deed dated 13-8-1975?
Contentions of the Respondent:
- It is averred inter alia in the written statement that the entire triple-storied building including the open land was purchased by late Smt. Triveni Bai wife of Madanlal out of their own funds under two separate registered sale deeds --one in the name of Triveni Bai and other in the name of minor plaintiff as a benamidar. The plaintiff being a minor by then had no financial capacity to purchase the suit property as claimed by him.
- After her death, her husband-Madanlal, the plaintiff, and the daughter created a Trust and they executed a registered trust deed dated 13-8-1975 in favour of Triveni Bhavan Trust for the purpose of using the entire property for charitable purposes as well as for temple.
- The defendants denied the tenancy as set up by the plaintiff and claimed that the plaintiff being one of the trustees and signatory to the trust deed could not claim any right, title and possession over the suit schedule property.
Contentions of the Appellant:
- The plaintiff filed a rejoinder mentioning inter alia that although he was minor the suit property was purchased in his name and out of his own funds.
- The trust deed does not relate to the suit property and the plaintiff is the adopted son of Madanlal.
- It is his further case that as he is claiming arrears of rent also, the Civil Court continues to have jurisdiction to grant the composite reliefs of possession as well as profits.
Background:
- The judgment and decree dated 29-7-1993 passed by the learned 1st Additional Judge, City Civil Court, Hyderabad, in O.S. No. 754 of 1983, declared, the right and title of the plaintiff; for consequential possession; and for mesne profits from 2-5-1982 onwards till the date of realisation, while denying the relief of recovery of arrears of rent.
- The unsuccessful defendants have filed an appeal against the judgment and decree.
Judgment:
- It has been recited specifically that late Triveni Bai has purchased the premises situated at Nampally, Hyderabad, consisting of three storied building, two shops and the land appurtenant to it. It has been further recited that the said premises was purchased by late Triveni Bai for using it for charitable and religious purposes.
- It is apposite here to consider Sections 93 to 98 of the Indian Evidence Act. Of them, Sections 93 to 97 are germane for consideration here. A perusal of these provisions makes it obvious that Sections 93 and 94 deal with patent ambiguity and Sections 95, 96 and 97 deal with latent ambiguity. In case of patent ambiguity, no extrinsic evidence is permissible and in case of latent ambiguity extrinsic evidence may be given.
- The property in question is the trust property having been endowed under the trust deed by the plaintiff; in order to fulfil the desire of late Triveni Bai to use the premises for charitable purpose and, therefore, the whole of the building has been in the occupation of the Trust and it is the Trust that has been paying the Municipal taxes, electricity charges, water charges, etc.
- Except the word of mouth of P. W. 1, there is no other evidence to support petitioner's claim that northern portion of the building has been in his possession and enjoyment.
- The language used in trust deed is quite intelligible and there is absolutely no patent ambiguity and applies accurately to the existing facts. The document specifically includes the three storeyed building, two shops and the land appurtenant to it. Furthermore, having regard to the surrounding circumstances, namely, user of the building by the trust, property described in trust deed can be considered which clearly shows the whole of the three storeyed building, which in the occupation of the trust is covered by trust deed. It is obvious, having regard to the reasons mentioned hereinabove, that trust deed covers the property covered by sale deed.
- In the result, the appeal is allowed and the judgment and decree dated 29-7-1993 passed by the learned 1st Additional Judge, City Civil Court, Hyderabad, in O.S. No. 754 of 1983, are hereby set aside. In sequel thereto, the suit stands dismissed. The cross-objections filed by the plaintiff-first respondent are also hereby dismissed.
