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Petitioner: HAMID BAKSHU VS Respondent: MD. IRAHIM MEAH
P L D 1956 Dacca 132
P L D 1956 Dacca 132
Before Guha, J
HAMID BAKSHU‑Plaintiff‑Appellant
versus
MD. IRAHIM MEAH‑Defendant‑Respondent
Appeal from Appellate Decree No. 307 of 1950, decided on 39th March, 1953 against the decree of B. Z. Ahmed District Judge of Chittagong dated the 24th November 1948, in Title Appeal No. 178 of 1947 affirming the decree of Khetra Mohan Das, Munsif, 3rd Court, Patiya, dated the 26th March 1947.
Interpretation of documents‑‑Principles‑Inconsistency be tween recitals and operative part‑Which to prevail.
Held, in order to construe a document the Court has got the right o look into the document itself and take into con sideration the terms of the instrument along with extrinsic evidence in order to find out the intention of the parties.
There are three rules applicable to the construction of document. If the recitals are clear and the operative part is ambiguous, the recitals govern the construction. If the recitals are ambiguous and the operative part is clear, the operative part must prevail. If both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is to be preferred.
Anaada Prasad Mukhopadaya v. Mathura Nath Nag Mazumdar 13 C W N 702, Shailendra Math Mitra v. Girijabhushan Mukherji I L R 58 Cal. 686, Ex parte Dawes v. In re: Moon (1886) 17 Q B D 275, Mellor v. Walmesley (1905) 2 C D 164, Eastwood v. Ashton (1915) A C 900, ref.
R. B. Rakshit for Appellant.
Abdul Hye for Respondent.
JUDGMENT
GUHA, J.‑‑This second appeal is by the plaintiff against the decision of the learned District Judge of Chittagong and arises in a suit for khas possession upon declaration of title of the plaintiff to the land in suit described in Schedules 1‑16; but the plaintiff got a decree in respect of lands of Sche dules 1‑14 and 16 except regarding the land of Schedule 15 of the plaint described in R. S. Dags Nos. 144 and 144/499 comprising an area of 58 acres of land and bearing an annual rental of Rs. 5‑6‑0.
I have already indicated that .the present dispute is con fined only to Schedule 15 land, which originally belonged to two brothers Laskar Ali and Chand Mia, but on amicable partition, Laskar Ali alone became the sole owner of Sche dule 15 land. On the 10th of September 1944, Laskar Ali sold Schedule 15 land along with other lands to the plaintiff by a registered document. According to the plaintiff, at the date of the purchase, the lands in dispute were under an attachment under section 146 of the Criminal Procedure Code, and in spite of demand by the plaintiff to the defendants to put him in possession, that was not complied with. So this suit was filed.
The only relevant defence that is material for the pur pose of this appeal is to the effect that defendant No. 77, the owner of the disputed Schedule 15 land, sold the same to the defendant No. 31 on the 7th of April 1937, by a Kabala (Exh. A), and since then the defendant No. 31 had been in possession and so the plaintiff, who purchased at a later date, could have no title.
The trial Court on a review of the evidence gave effect to the defence contention and dismissed the suit in respect of Schedule 15. On appeal by the plaintiff, the learned District judge also dismissed the appeal holding that the Kabala by the defendant No. 77 to the plaintiff (Exh. 1) and to the defendant No. 31 (Exh. A) were both effective and in normal course the sale to the defendant No. 31 must prevail over that to the plaintiff because it was of an earlier date ; but the plaintiff contended that the Kabala (Exh. A) did not cover the whole of R. S. Plots Nos. 144 and 144/499. The learned District judge held that as in the Kabala (Exh. A) both the plot numbers and the area were mentioned and that the area was mentioned only by guess to be 4 gondas out of 1 kani and 9 gondas, therefore, the plaintiff's contention that only a portion of the land was sold to the defendant No. 31 and others could have no basis.
In this appeal the defeated plaintiff raises the same question about the construction to be put on the sale deed of the defendant's (Exh. A) ; and Mr. Rakshit, the learned Advocate appearing for the plaintiff‑appellant asks me to read the recitals in the Kabala Exh. A along with the Schedule 16 of that document and to hold that what was sold to the defendant No. 31 by the defendant No. 77 was only 4 gondas out of total area of 1 kani and 9 gondas of R. S. plots Nos. 144 and 144/499 and also another plot being' numbered 200 ; and, therefore, the plaintiff would be entitled to the remainder of the lands of R. S. Dags Nos. 144 and 144/499. This contention of the appellant is sought to be repelled by Mr. Abdul Hye, the learned Advocate appearing for the defendant No. 31 respondent and he contends that on a proper construction of the document Exh. A, it would " be clearly manifest that what was purchased by the de fendant No. 31 was not 4 gondas of the Dags but the entire Dags and, therefore the Court below were perfectly right in non‑suiting the plaintiff in respect of Schedule 16 lands of Exh. A.
Both parties have referred to me freely to the document Exh. A and both of them also referred to the recitals and the operative portions and I have myself perused the docu ment. The question then really resolves to this whether the recitals in the document would prevail over the operative portion, or more broadly whether in the circumstances of this case, the recitals should be the proper guide for finding out the intention of the parties to the document or the operative portion would govern the intention. According to Mr. Rakshit as the recitals are clear, and the operative part may be held to be ambiguous, the recitals would govern the construction. Whereas Mr. Hye, who appears for the res pondent argues that the recitals are rather ambiguous but the operative part is clear; and, therefore, the operative part must prevail, and he argues alternatively that even if it be held that both recitals and operative part are clear, and they being apparently inconsistent with each other, the operative part is to be preferred ; in other words he makes his position clear by saying that if the whole of R. S. Dags Nos. 200, 144 and 144/499, were not meant to be sold there would have been clear indications in the document itself showing the intention of the parties. Mr. Hye further argues that in order to reach at the proper construction of the document, one will have to look into the language used by the parties and to gather the intention of the parties there from, and it is necessary to admit extrinsic evidence for the purpose of reaching at the real construction.
I have already narrated what .weighed with the two Courts below in giving effect to the contention of the defend ant No. 31 in preference to the contention of the plaintiff so far as this 16th Schedule land of Exh. A is concerned. But after anxious consideration, and in view of the well known principles deducible from authorities. I am unable to accept the con tention of Mr. Hye though it was in accord with the opinions of the two Courts below. Before I go more into this matter, I shall refer to two decisions to which my attention was drawn by Mr. Hye, first of all referred to me the decision in the case of Annada Prasad Mukhopadaya v. Mathura Nath Nag Mazumdar (13 C W N 702), a decision of a Division Bench of the Calcutta High Court presided over by Chitty and. Vincent, JJ., The question that arose before their Lordships in that appeal was whether the defendants were entitled to claim title to the lands covering about 1,500 bighas whereas their lease was in respect of about 800 bighas and the boundaries of the lease were given and in that connection the defence was that they were entitled to get total suspension of rent because all the demised lands were not placed in their possession. The suit was dismissed in the trial Court on the ground of suspension of rent, and on appeal the question arose whether the northern boundary of the demised lands was fixed and whether the defendants were entitled to possess the entire 1,500 bighas ; and it was held by both the learned judges that the plaintiffs would be entitled to get a decree for the excess lands beyond 800 bighas at the rate mentioned in the document. It must not be forgotten that these lands were jungly lands in the Suhdarban area and as has been rightly pointed out, by Vincent, J., that "it is clear also from the wording of the lease that it was the intention of the plaintiff to lease to the defendant the lands included in the boundaries stated and, in the case of jungly lands in the Sundarbans, it is so difficult to survey lands that areas are always or nearly always entered by guess." But in the aforesaid facts of that case, where the decision was given, Mr. Hye laid a great reliance on a passage in the judgment of Chitty, J., at page 705 to the effect:
"It is true that speaking generally the boundaries given in a conveyance are the true criterion of the amount of land conveyed. It is not, however, an absolutely hard and fast rule. The true construction to be put upon a deed is that which will as far as is possible bring its several provi sions into harmony with one another and express most nearly the intention of the parties."
In that connection, Mr. Hye also refers to me the observa tions to the same effect which was' made in that case by Vincent, J. I can only mention with respect to those learned Judges that they have laid down their nothing new from which the principle of construction of a document will have to be reached. I shall presently show from the observations of the. House of Lords and in other cases in England, what is the law. In order to complete the narrative and citation of cases of, Mr. Hye, I shall only refer to the order decision to which lie drew my attention and that was the decision in the case of Shailendra Nath Mitra v. Girijabhushan Mukherji (I L R 58 Cal. 686), and that was a case for settlement of fair rent under section 105 of the Bengal Tenancy Act, and their Lordships were construing the Kabuliyat in question as well as previous Kabuliyat in order to determine what should be the fair rental of the demised lands and in course of that decision it was observed at pages 689‑690
"The document, Exhibit A, itself taken as a whole, and, in the absence of any provision for a subsequent survey and adjustment of rents in accordance therewith, gives sufficient indication that the parties intended that the demise in favour of the lessee was with reference to the boundaries specified in the lease, and not with reference to the estimated area. If the whole of the instrument is looked at, and it is read along with the recitals contained in the previous document, Exhibit 1, there is no inconsistency in the document with reference to the boundaries specified in the documents, and the estimated area stated in the docu ment, Exhibit A. It is permissible in a case of this descrip tion where there is seeming inconsistency as between boundaries and the area stated in the instrument to have recourse to extrinsic evidence, and evidence of user by acts of parties, for the purpose of gathering the real intention of the parties to the instrument."
If I may say so with great respect to those learned judges of the Calcutta High Court that they had not been laying down any principle but was only repeating what was enunciated in case by the House of Lords and in other decisions of the appeal Courts in England. It is an established principle on authorities, which is too late in the day now to raise a controversy over it, that in order to construe a document one has got the right to look into the document itself and take into consideration the terms of the instrument along with extrinsic evidence in order to find out the intention of the parties. Therefore, the two decisions cited by Mr. Hye is not of much real assistance to decide in favour of his client. Here the question that arises is whether in the circumstance like this, where there has been an apparent inconsistency between the recitals and the operative, portion what should be the guiding factor of the Court in finding out the intention of the parties as expressed in the document. I can support that proposition by citing innumerable decisions from English decisions. But for the present, I need refer only to the case of Ex parties Dawe. In Re: Moon ((1886)17QBD275), and shall make a pointed reference to the observations of Lord Esher. M. R. at page 286:
"It is to be construed by what appears, on the face of it, and by nothing else. You may of course look at the state of circumstances which existed at the time when it was made but in the present case that will not help us at all in the construction. The deed must be construed as it stand, and by reference to nothing else.
Now there are three rules applicable to the con struction of such an instrument. If the recitals are clear and the operative part is ambiguous, the recitals govern the construction. If the recitals are ambiguous, and the operative part is clear, the operative part must prevail. If both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is to be preferred."
The question, therefore, that arises here is to find which of those three rules will apply. But I may pause and mention that this principle of law laid down by Lord Esher, M. R. has stood the test of time since that date. In support of that proposition I may refer to the decision of Mellor v. Walmesley ((1905) 2 C D 164). But it appears to the that the final word, if not the last word, has been said in the case of Eastwood v. Ashton ((1915) A C 900), and there this question about conflict between boundary and area has been sufficiently dealt with in the judgment of Earl Loreburn at pages 906‑908 and a very lucid exposition of the law will be found in the observations of Lord Parker of Waddington at pages 909‑913 and I shall fail in my duty if I do not refer to the observations of Lord Sumner at pages 914‑917. These are well known observa tions and that do not require to be recited here. If we judge the present case from that point of view, what we find ‑is this that in the present case the defendant No. 77 proposed in the year 1937 to sell out to the defendants three R. S. Dags, namely, Nos. 200, 144 and 144/499 and the rental was stated to be Rs. 5 which appears to me that it may be an interpola tion or it may not and I may leave it at that. In the recitals of Exh. A, we do find that the vendors were selling their entire lands but in the operative part of Schedule 16 of the document it was stated that only 4 gondas were sold. Now what are the facts. The lands of 144 and 144/499 comprised an area of 1 kani and 9 gondas at a rental of Rs. 5‑6‑0 and what was sold by Exh. A was those two plots along with another plot and the area sold was only 4 gondas, but the rental taking, as it appears from Exh. A, was stated to be Rs. 5. In those circumstances and keeping in mind's eye the real facts in the recitals of the document, it is not possible for me to hold along with the two Courts below, in view of the principles which I have tried to formulate by citing authorities hereinbefore that the entire lands of R. S. Dags Nos. 200, 144 and 144/499 were sold. In that view of the matter I am of opinion that the decision of the learned District Judge of Chittagong should be reversed and that of the trial Court be modified holding that the plaintiff would be entitled to get not only lands of Schedules, 1‑14 and 16 of the plaint but also lands of Schedule 15 in the plaint, excepting 4 gondas, sold to the defendants.
The appeal is, therefore, allowed and in the circumstances as the point is not free from difficulties I shall not saddle either parties with costs in this Court.
K. B. A/M. S. Appeal allowed.