SANKARANARAYANA REDDIAR Vs. RAMASWAMI REDDIAR AND ANR.

JUDGEMENT

(1.) THE dispute in this second appeal relates to an extent of 5 cents of land. The defendant who has failed in both the Courts below, is the appellant. One Subbaraya Reddiar was the owner of S. No. 2215/5D1 of an extent of 1 acre and 10 cents in Moolaikaraipatti Panchayat limits. Under Exhibit A -1 dated 4th November, 1951, he othied an extent of 90 cents in S.No. 2215/5D1 in favour of one Subbammal and another for Rs. 1,000. Under Exhibit B -1, dated 25th September, 1954, the defendant purchased an extent of 25 cents in the southern portion of the property for a sum of Rs. 700. The plaintiffs have purported to purchase under the registered sale deed Exhibit A -2 dated 14th November, 1960 the extent of 90 cents, usufructuarily mortgaged to Subbammal and another, for a sum of Rs. 1,500. Under Exhibit A -3 dated 17th November, 1960, the plaintiffs discharged the usufructuary mortgage. The plaintiffs have filed the suit claiming that they are entitled to the entire 90 cents in the north and the defendant's claim for 25 cents in the survey field is untenable. According to the plaintiffs, the defendant is entitled only to 20 cents in the south and no more. The plaintiffs charge the defendant with attempting to encroach to an extent of 5 cents on land which they redeemed from the usufructuary mortgagees, by virtue of their title to 90 cents under the sale deed Exhibit A -2. The Courts below have granted the plaintiffs declaration of their title to the entire go cents in the north in S.No. 2215/5 D1 and issued the consequential injunction prayed for. The defendant's purchase has been limited to 20 cents.

(2.) THERE is no dispute that the total extent of S. No. 2215/5 D1 is 1 acre and 10 cents, and Subbaraya Reddiar has only this extent in his enjoyment. It is the finding of the Courts below that the northern 90 cents out of 1 acre and 10 cents had been in the possession of the usufructuary mortgagees under Exhibit A -2 till redemption. At the time of the sale in favour of the defendant, Subbaraya Reddiar had been in possession of only the remaining 20 cents in the south. The case of the defendant that the land of an extent of 25 cents in the south was measured and possession of it was given to him, has been found against, quite properly, as the mortgagees had possession of 90 cents. The ultimate observation of the appellate Court shows the approach of the Courts below to the determination of the case. It is observed : 'D.W. 1 (defendant) confesses that at the time of Exhibit B -1, Exhibit A -1 was still subsisting, that the in mortgagees were in possession of the 90 cents (covered by Exhibit A -1) and that remaining property was lying vacant at the time of his purchase. This admission..conclusively establishes that Exhibit A -1 property was in the possession of the mortgagees and under their cultivation and that it is exactly this property of the northern 90 cents which Subbaraya Reddiar sold to the respondent under Exhibit A -2, to the exclusion of the remaining land of 20 cents, which was vacant and which he sold to the appellant as per Exhibit B -1..' The Court below would hold that, notwithstanding the fact that Exhibit A -2 is later in point of time and fact than Exhibit B -1, it takes precedence over Exhibit B -1. The emphasis which the Courts below would place is on the fact that the entire extent of 90 cents was under the usufructuary mortgagees and Subbaraya Reddiar could have sold free of encumbrance, only the remaining 20 cents.

(3.) LEARNED Counsel for the appellant contends that the Courts below have not borne in mind the principles applicable in a case of this kind. The appellant has purchased the specific extent of 25 cents in the south. His vendor was entitled to convey that extent to him, notwithstanding that there was an outstanding encumbrance over a part of it, and the same was in the possession of the usufructuary mortgagees. Learned Counsel submits and rightly that, when a specific extent of property is conveyed and the vendor has a right to make the conveyance, the title of the purchaser to the property is absolute. The purchaser can pursue his remedies against vendor if there is an encumbrance over a part of the property and part of the property is not given immediate possession. But the subsequent purchaser cannot, on that account, contend that the vendor could not convey that part of the property. The short question for consideration is whether the vendor Subbaraya Reddiyar intended to convey full 25 cents. There could be no question about the competency of the vendor to convey the 25 cents in the south. It may be that the vendor was not really in a position to give possession of the 5 cents, but that would not affect his right or title to convey 25 cents. The defendant has admittedly purchased the property, of the extent of 25 cents for putting up a cinema theatre. The sale deed Exhibit B -1 makes no reference whatsoever to the usufructuary mortgage. The preamble to the sale deed and the operative portion of it do not describe the property sold. In the operative portion the property sold, is referred to as the land described in the schedule to the deed. So it is the schedule of property that sets out the property sold. For the plaintiffs, reliance has been placed on the recital in Exhibit B -1 that ''having received the full consideration as hereunder I have now left for your enjoyment the land described in the schedule", and also the recital '' I declare that there is no encumbrance on the schedule land." I shall now set out the schedule itself : " In Moolakaraipatti Panchayat Board limits, Tirunelveli District Moolakaraipatti Sub Registration District, Moolakaraipatti village, Ayan Punja S. No. 2215/5 D 11 acre and 10 cents : within this, in the south 25 cents, boundaries whereof : south of the land retained by me and well ; west of Venkatasubbaraya Chettiar's land : north of Poromboke path way and east of your people's land, twentyfive (25 cents whole. "There is no dispute above the eastern, western and so them boundaries of the property sold. The extent of the property sold, namely, 25 cents, has been emphasised in the schedule thrice, twice in numerals and once in letters. But according to the plaintiffs the defendant is entitled under this document only to 20 cents. The difficulty is about fixing the northern boundary of the property sold. If the boundaries are specific and clear they could and so would govern. Here the northern boundary cannot be said as clearly defined : as a boundary line it is imprecise. Whether the northern boundary line runs so as to give the vendee 25 cents or runs as to limit it to 20 cents is the question. As it is, it can run anywhere within the field, and still be true to its description. In the schedule there are three descriptions given for identifying the property: (1) its location with reference to the entire survey field in the south, (2) its extent in the south, (3) its boundaries. It is contended for the plaintiffs that the property sold to the defendant is unencumbered property and that defines the location of the northern boundary. So we have to consider first whether the description of the property in the body of the document as unencumbered property, has to prevail and control the interpretation of the schedule.