HIGH COURT OF JUDICATURE AT ALLAHABAD
FAFO No. 990 of 2000
Smt. Manju Lata Sharma ......Appellant
vs
Vinay Kumar Dubey ........Respondent
HON'BLE YATINDRA SINGH, J
HON'BLE MUKTESHWAR PRASAD, J
(Delivered by Hon'ble Yatindra Singh, J)
1. How should a deed or a compromise decree be interpreted? Under what circumstances, does a decree become inexecutable? These are few questions involved in this case.
FACTS
2. Sri Vijai Kumar Dubey (the respondent) is an Engineer and is working with a private Company. Smt. Manju Lata Sharma (the appellant) is a Lecturer in the Government Degree College, Anwalkhera, Agra. They were married on 29.6.1990. The marriage fell apart as soon as they were married. The husband filed a divorce petition on 19.3.1991 on the ground of cruelty, adultery, and fraud under section 13 of the Hindu Marriage Act (the Act). He further prayed for return of jewellery worth more than three lacs. The appellant filed her written statement denying plaint allegations. She also gave birth to a daughter during pendency of divorce petition on 5.5.1991. This case was ordered to proceed ex parte on 28.10.1996. The appellant filed an application to recall this order. It was dismissed on 21.11.1996 and divorce petition was decreed ex parte the same day. The relief for return of jewellery or its value in terms of money was denied.
3. The appellant filed an appeal before this court. There was reconciliation between the parties and a compromise application was filed. The court passed a compromise decree on 5.12.1997 on its basis. Broadly under the compromise Rs 5 lacs were to be given by the respondent in two installments. The first instalment of Rs 3 lacs was to be given within two months from the date of the decree and the second instalment of Rs 2 lacs was to be given by 30th of September, 1999. In case of default it was to incur 18% interest. This amount was to be kept in the joint account of the appellant and the minor daughter with liberty to the appellant to withdraw the amount. The appellant was required to withdraw all civil and criminal cases against the husband and his family members within a week. All allegations against each other were also withdrawn and struck out.
4. The respondent gave a draft of Rs 3 lacs within the stipulated time. Subsequently, the daughter died on 19th of February 1998. The respondent did not give the second instalment of Rs 2 lacs. The appellant filed an application for executing the decree on 19.12.1999. It was dismissed on 2.5.2000 on the ground that:
The daughter was dead.
The decree had become inexecutable.
The respondent was not liable to pay the second installement of Rs 2 lacs.
Hence the present FAFO.
POINTS FOR DETERMINATION
5. We have heard Sri RN Singh, assisted by Sri AK Rai, counsels for the appellant and Sri GN Verma, assisted by Sri Chandrashekhar Agnihotri, counsels for the respondent. Following points arise for determination in this case.
(i) Is the appellant disentitled to execute the decree on the ground that
she has not fulfilled her part of the obligation namely to withdraw the civil and criminal cases?
(ii) Who was the beneficiary under the terms of the decree: the appellant or the minor daughter? Has the decree become Inexcutable?
(iii) Is any amount required to be paid or refunded by any of the parties?
POINT NO. 1: THE APPELLANT IS NOT DISENTITLED
6. Counsel for the respondent brought to our notice clause no. 5 of the compromise decree and submitted that the appellant is not entitled to execute the decree on the ground that:
She was required to withdraw civil and criminal proceedings against the respondent and his family members;
She has not withdrawn the cases
She has not performed her part under the decree.
7. Counsel for the appellant has stated before us that:
The appellant has already filed her affidavit in the proceedings.
The proceedings have either been dismissed or would be dismissed if the copy of the compromise decree is filed.
The respondent may get the cases dismissed after filing compromise decree.
There is nothing contrary to it. In view of this, it can not be said that the appellant has not performed her part under the decree and it does not become inexecutable on this ground.
POINT NO. 2: DECREE FOR 2nd INSTALLMENT INEXECUTABLE
8. Counsel for the appellant brought to our notice clause no. 1 of the compromise decree and submitted that:
The respondent was required to pay Rs 5 lacs to the appellant.
The entire money was meant for the appellant.
The executing court can not go behind the decree.
9. Counsel for the respondent submitted that
Under the clause III of the compromise decree, the amount was to be kept in the joint name of the appellant and the minor daughter. It could be withdrawn for upbringing and welfare of the daughter and the money was meant for the daughter only.
The permanent alimony and maintenance is governed by section 24 and 25 of the Act and can be given to the parties only if they are unable to maintain themselves.
The appellant was (and is still) lecturer in the Government Degree college, she had independent income and she did not require any maintenance.
10. It is correct that the first line of clause 1 and Clause III of the compromise decree state as submitted by the counsels for the parties. But the question is, should we restrict ourselves to the first line of clause 1 or Clause III of the compromise decree. Should we interpret a part of the decree without looking to the other terms of the decree? How should a document be interpreted?
11. Odger's Construction of Deeds and Statutes (5th edition) (page 55) states as follows:
'Rule VII. Therefore the deed is to be construed as a whole.
This means collecting the general intention from the instrument as a whole and inferring that intention from the general frame of the deed. The deed must be read and interpreted as a whole in order to extract the meaning of any particular part or expression.
12. It is settled law that intention of the parties is to be gathered by reading the entire document; it has to be read as a whole. The court can also consider attending circumstances (See below for citation of few cases on this point)1. The appeal was decided on the basis of compromise application supported by an affidavit and the compromise decree incorporates its terms. We have to see the entire document to gather intention of the parties.
13. The compromise decree indicates that the intention of the parties was that entire dispute may come to an end. Clause I to III of the compromise decree indicate that Rs 5 lacs was to be given to the appellant but part of it was meant for her and part of it was upbringing and welfare of the daughter. Considering the whole decree, we are of the opinion that the first installment of Rs 3 lacs was meant for the appellant and the second installment of Rs 2 lacs was meant for the upbringing and welfare of the daughter. The amount meant for the appellant namely the first installment has already been given to her.The second instalment was for the benefit of the daughter. She died before the second installment was due. The question is, can the appellant execute the decree for the second installment when the daughter?the person for whose upbringing and welfare it was payable?￠is no more.
14. Order 22 of the Civil Procedure Code (the CPC) deals with Death, Marriage and Insolvency of the parties. Rule 3, 4 and 8 of this order￠deal with procedure on death of one of the several plaintiffs or one of the several defendants and when plaintiffs' insolvency bars suit. Rule 3 and 4 of order 22 provide that the suit could be continued against the heirs only if the right to sue survives. It further provides for abatement of proceedings in case heirs are not substituted within time. Rule 11 of this order provides that it also applies to appeals with clarification that word plaintiff, defendant and suit include appellant, respondent and appeal respectively. Rule 12 of order 22 provides that Rule 3, 4 and 8 of order 22 do not apply to execution proceeding. The result is that benefit under a decree can not be defeated merely by death of the decree holder. Nevertheless a decree granting personal benefit for a specific purpose may be executed for that purpose only.
15. The second installment was meant for the daughter and was for her upbringing and welfare. The daughter was no more when it became due. The right under the decree was personal to the daughter. The appellant could execute the decree for second installment only for the daughter's benefit. Now as the daughter is no more, the purpose is gone: the decree for second installment can not be executed. The court below has rightly dismissed the execution application as inexecutale. There is no mistake in the impugned order. The respondent is not liable to pay the second instalment.
POINT NO. 3: WIFE IS NOT LIABLE TO RETURN.
16. The appellant had recieved first installment of Rs 3 lacs in execution of compromise decree. The question is whether the appellant is liable to return any part of this amount. The appellant was given first instalment in execution of the decree and this question should be decided in execution itself, and we do so accordingly.
17. We (while deciding point no. 2) have held that the first installment was meant for the appellant. It was not not for the daughter and the daughter's death or the inexecutability of decree does not affect the payment of the first installment to the appellant. The respondent is neither liable to pay any more money to the appellant, nor is he entitled to recover any money already transferred.
AN OBSERVATION
18. Clause VI of the compromise decree states that the parties will neither harm nor torment each other or their family members. The parties have to forget their unfortunate past and start a new life. The Mother Nature has not given us life to waste it in confrontation and bickering. We hope that we have settled all unsettled issues and plugged the holes: the parties would leave each other and live in peace.
CONCLUSIONS
19. Our conclusions are as follows:
(a)An instrument or a deed or a compromise decree is to be read as a whole in order to gather intention of the parties and for interpretation of any particular part or expression.
(b)A decree granting personal benefit for a specific purpose may be executed for that purpose only.
(c)The first installment of the decreetal amount was meant for the appellant and the second installment was meant for upbringing and welfare of the daughter. The decree for the second installment became inexcutable after the daughter's death. The appellant can not execute the decree for the same.
(d)The amount already transferred to the appellant by the first instalment, (which was meant for the appellant) has been given to her. It was her property. Its status is not changed on the daughter's death. The appellant is not liable to return any part of it to the respondent.
With these findings, the FAFO stands disposed of.
