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2017 Supreme(Ker) 191
IN THE HIGH COURT OF KERALA AT ERNAKULAM
B.KEMAL PASHA, J.
EBENEZER HOSPITAL, KAYAMKULAM REPRESENTED BY ITS MANAGING PARTNER DR.JOHN EBENEZER – APPELLANT
Versus
ABDUL KALAM AZAD – RESPONDENT
R.S.A. Nos.1545 & 1548 of 2012 and 8 of 2013
Decided On : 11-01-2017
For the Appellant : ADV. SRI. K.V. SADANANDA PRABHU
For the Respondent: ADV. SMT. SUMATHI DANDAPANI (SENIOR), ADV. SRI. MILLU DANDAPANI (CAVEATOR)
The central legal point established in the judgment is the interpretation of Ext.A6 Will and the rights of the parties over the pathway provided in the will. The court emphasized the non-extinguishment of the title of Laurence Rosario and Mervin Rosario over the pathway and the entitlement of the plaintiff to the relief of injunction sought for in O.S. No.17/2007.
Headnote:
R.S.A. - Property Dispute - Ext.A6 Will, Exts.B1 to B5 - The court discussed the interpretation of Ext.A6 Will and the rights of the parties over the pathway provided in the will. The court also addressed the purchase of properties by the respondent through various sale deeds and the implications on the pathway rights. The judgment also highlighted the erroneous findings of the lower appellate court in fixing the boundaries of the properties and the relief of injunction sought by the plaintiff.
Fact of the Case:
The case involved three suits jointly tried and disposed of by the Munsiff's Court, Kayamkulam. The suits related to property disputes, including declaration, injunction, and fixation of boundary. Disputes arose over the pathway provided in Ext.A6 Will and the purchase of properties by the respondent.
Finding of the Court:
The court found that the plaintiff was entitled to the relief of injunction sought for in O.S. No.17/2007. It also set aside the erroneous findings of the lower appellate court in fixing the boundaries of the properties and the relief of mandatory injunction sought in O.S. No.23/2007. No interference was called for in the judgment and decree passed in O.S. No.103/2007.
Issues: The issues involved the interpretation of Ext.A6 Will, the rights of the parties over the pathway, the purchase of properties by the respondent, and the fixing of boundaries of the properties.
Ratio Decidendi: The court concluded that the title of Laurence Rosario and Mervin Rosario over the pathway did not extinguish, and the plaintiff alone could not claim a declaration of his title or possession over that portion of the property. The court also emphasized the need for proper maintenance and free user of the pathway by both parties.
Final Decision: The appeals were disposed of with the plaintiff being entitled to the relief of injunction sought for in O.S. No.17/2007. The erroneous findings of the lower appellate court in fixing the boundaries of the properties and the relief of mandatory injunction sought in O.S. No.23/2007 were set aside. No interference was called for in the judgment and decree passed in O.S. No.103/2007.
R.S.A. No.8/2013 has arisen from the judgment and decree passed by the Additional District Court-I, Mavelikkara in A.S. No.15/2011, which arose from O.S. No.17/2007 of the Munsiff's Court, Kayamkulam. R.S.A. No.1545/2012 has arisen from the judgment and decree passed by the Additional District Court-I, Mavelikkara in A.S. No.16/2011, which arose from O.S. No.23/2007 of the Munsiff's Court, Kayamkulam. R.S.A. No.1548/2012 has arisen from the judgment and decree passed by the Additional District Court-I, Mavelikkara in A.S. No.32/2011, which arose from O.S. No.17/2007 of the Munsiff's Court, Kayamkulam.
2. There were originally three suits, which were jointly tried and disposed of by the Munsiff's Court, Kayamkulam through a common judgment. O.S. No.17/2007 was one filed for declaration and injunction. O.S. No.23/2007 was one filed for perpetual injunction as well as mandatory injunction. O.S. No.103/2007 was filed for the fixation of boundary of the scheduled property.
3. The parties are referred to in the order in which the parties are referred in O.S. No.17/2007. All the properties in question involved in these suits originally belonged to late Edward Rosario. He had three sons namely, Lawrence Rosario, Mervin Rosario and Hubert Rosario. The total extent of the property was 66.5 cents. Edward Rosario executed Ext.A6 registered Will on 19.11.1981, thereby bequeathing his aforesaid properties to his three sons. The southern portion of the property abutting the road side, having an extent of 30 cents, was bequeathed to Lawrence Rosario and Mervin Rosario in equal shares of 15 cents each. The northern most portion of the property having an extent of 36.5 cents was bequeathed to Hubert Rosario.
4. In Ext.A6 Will, he has provided a pathway through the eastern extremity of the properties for having access to the southern road. The following terms were recited in Ext.A6 Will :-
"Nobody shall obstruct the transportation facility through the eastern extremity of the property for having access to the southern road. The persons, who are allotted with item No.1 and 2 property in this document, shall equally make use of the corridor situated at the middle of the shop building."
5. Subsequently, the legatees have parted with the properties. The respondent herein initially purchased 4 cents of property through Ext.B2 and thereafter, 7.919 cents of property through Ext.B1 from Mervin Rosario. Similarly, he purchased 4 cents of property through Ext.B3, 4 cents of property through Ext.B5 and lastly, 5 cents of property through Ext.B4, from Laurence Rosario. In Exts.B1, B2, B3, B4 as well as B5, both Mervin Rosario and Laurence Rosario had identified and acknowledged the existence of the pathway through the eastern extremity of the property and had further acknowledged that the said pathway was being used by Hubert Rosario.
6. Even though an extent of 30 cents of property was bequeathed to both Laurence Rosario and Mervin Rosario, they had limited their claims to a lesser extent of property, evidently because of the provision regarding that pathway. Mervin Rosario had acknowledged that he had only 11.919 cents of property in his possession and he had transferred that extent only. Laurence Rosario had initially claimed only 11.879 cents of property instead of 15 cents of property. He executed Ext.B3 at first, followed by Ext.B5. Ext.B3 was executed for 4 cents of property and in that document, he had acknowledged about the balance property as 7.879 cents. Subsequently, he executed Ext.B5 for 4 cents of property. In that document also, he had acknowledged his then possession over an extent of 7.879 cents of property only. Even though the balance property could only be 3.879 cents only, it seems that Ext.B4 was executed for 5 cents of property by including one cent of property as excess land. Whatever it is, through Exts.B1 to B5, the total extent of property to which the respondent is entitled, is 24.919 cents.
7. Similarly, Hubert Rosario also
