SURESH CHANDRA ROY CHOWDHURY; SURENDRA CHANDRA ROY CHOWDHURY Vs. SURENDRA CHANDRA ROY CHOWDHURY; SURESH CHANDRA ROY CHOWDHURY

JUDGEMENT

(1.) This is an appeal from the judgment of the learned District Judge of Rajshahye, dated the 14th March 1914, modifying the decision of the learned Subordinate Judge of the same place. The suit was brought by the plaintiff for a declaration of his right to the use of a cartain private road and for an order compelling the defendants to remove certain obstructions. The road consisted of two parts; namely, first, what is called in these proceedings the main road and secondly, the branch road. The present appeal relates wholly to the road which is called the main road. Originally this property, the road, with the adjoining lands belonged to the plaintiff and the defendants jointly. Subsequently, a partition suit was instituted. Daring the course of those proceedings, the parties arrived at a settlement and it was agreed that certain land should be given to the plaintiff and certain land to the defendants. The main road clearly falls within the limits of the land which was given to the defendants as taken by the boundaries. The question is whether, on the documents that were executed between the parties, the plaintiff has the right of still using that main road which falls within the limits of the property that was given to the defendants. During the partition proceedings, the parties executed material documents in each other s favour-called ladavi ekranamas. Those documents were duly registered and they operated as mutual conveyances and as transfers of properties within the meaning of the Transfer of Property Act, 1882. It is quite true that subsequently, after those documents had been completed by execution and registration, a petition was presented to the Court and a consent decree was obtained; but the foundation of the title in this case seems to be based, without doubt, on the material conveyances that the parties executed in favour of each other. Now, it is a common factor in this ease, as have already said, that within the limits of the property that was allotted to the defendants by the documents that were executed by the parties the site of this road---the road which is called the main road---fell. The question, therefore, is reduced to this, namely, whether under the terms of Section 8 of the Transfer of Property Act the plaintiff reserved to himself the right of using this road which would otherwise pass to the defendants under the terms of the document that he executed in their favour. The learned Judge in the first Court came to the conclusion that, having regard to the other terms of the document and the acts of the parties subsequent to the execution thereof, the plaintiff had reserved to himself the right of using this road. The terms of Section 8 of the Transfer of Property Act are as follows: "Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof." It has been argued by Mr. Chaudhury, the learned Vakil who appears for the appellant, that, for the purpose of discovering whether a different intention should be necessarily implied the Court is not confined to the terms of the document itself but it must consider the object of the grantor and other circumstances and the acts of the parties since the date of the execution of the document. I am not at present prepared to assent to that view. Of course, if there is an ambiguity in the document those matters might well be considered; but as at present advised, I am not prepared to say that, on the construction of Section 8, a different intention which may necessarily be implied under that Section can be implied except from the terms of the document itself. However, even if the view that Mr. Chaudhury has put forward is correct, I am unable to see any ground for interfering with the judgment of the lower Appellate Court. I see no necessary implication which should require us to read the conveyance of this property in favour of the defendants in the way that has been suggested. The document is perfectly plain in its terms. The suggested, convenience of leading the ladies of the plaintiff s family to the temple to perform their worship by this private road instead of proceeding by the public road perhaps may be a matter of importance to the plaintiff and the members of his family, but that there is any necessity for implying such reservation is immediately negatived by the terms of the deed. It may be inconvenient for the females of the plaintiff s house to go to the temple by the other way and that inconvenience of proceeding by the public mad may be a matter of moment to Hindu ladies. But Hindu ladies do, at times, have to proceed by public roads. The method of proceeding by a public road may be different in each case, but it is a matter of every day observation that in this country the ladies are properly secluded when they pass by a public road. Those ladies of the plaintiff s household may as well go to the temple and perform their worship there by using this public road. I see no reason why we should imply in the grant to the defendants by the plaintiff of his interest in the land, which would include the site of this main road, a different intention, which it is said, would be a matter of convenience to the ladies of the plaintiff s family, that is, of proceeding along this private road. I think the learned Judge of the lower Appellate Court arrived at a correct conclusion when he held that there were no reasons for reading into this document exceptions which must be taken to have been deliberately omitted by the conveying party, the plaintiff, when he executed the document. I think the decision of the learned Judge of the lower Appellate Court is right. The present appeal, therefore, fails and must be dismissed with costs. Richardson, J.

(2.) I agroe. In No. 1505.

(3.) This appeal will stand dismissed. The appellants must pay to the respondent his costs in this appeal.