The width of an easement by grant should be determined based on the intention of the grantor and the evidence, and should not be unduly restricted.

1. Both these Second Appeals are filed by a brother against his sister. He filed these appeals against the judgment and decree of the Principal Sub Judge, Thiruvananthapuram allowing A.S.47/2003 and dismissing A.S.13/2004. He is the defendant in O.S.1377/1999 on the file of the Additional Munsiff’s Court, Thiruvananthapuram, filed by his sister. For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial Court.

2. Their father Kunjukrishna Pillai executed Ext.A1 Will in the year 1962 bequeathing some of his properties in favour of his children including the plaintiff and the defendant. While allotting separate shares to his children, Kunjukrishna Pillai was vigilant to make specific provision for the ingress and egress of the sharers, with the solemn object of avoiding dispute between his children, in future. Since, even before the execution of Ext.A1 Will deed, there was a well defined pathway starting from the western public road, leading up to the family house which situated on the eastern side of the entire 29 cents of property covered by Ext.A1,the exact width of the said pathway was not specified in the will. The calculations of Kunjukrishna Pillai proved wrong, when the relationship between the children got strained. The suit filed by the sister for enforcing her right of easement by grant over a pathway having a length of 65 feet and width of 6 feet (plaint C schedule way), against her younger brother, is now in it’s 25th year. The trial court as well as the First Appellate court found that the plaintiff is entitled to get the way provided in the will. The trial court found that the width of the grant is only 3 feet, while the First Appellate court found that it’s width is 6 feet.

Before the sister could get a final answer to the disputed question, she left all of us to the heavenly abode, leaving behind her husband and children to get impleaded in the appeal as additional appellants 2 to 4, to continue the legal fight.

3. The plaint C schedule pathway is through the northern side of the defendant’s property (plaint B schedule property), starting from the western public road towards east and ending at the western boundary of the plaintiff’s A schedule property. According to the defendant, the pathway claimed is through the courtyard of his residence and that such a pathway through the courtyard will affect his privacy. Further, according to the defendant, while the father was alive, in the year 1972, he had shifted the pathway provided along the norther side of plaint B schedule towards it’s southern side. Therefore, according to the defendant, the pathway available for the plaintiff is along the southern side of the plaint B schedule and no pathway as scheduled in the plaint is in existence.

4. The trial court found that the plaint C schedule pathway as claimed in the plaint is not in existence. However, it granted relief to the plaintiff limiting the width of plaint C schedule pathway to 3 feet. Dis-satisfied with the above judgment and decree, the plaintiff preferred A.S.47/2003 and the defendant preferred AS 13/2004. The 1st Appellate Court found that the width of the C schedule pathway is 6 feet, against which the defendant preferred these Second Appeals.

5. At the time of admission, the following substantial questions of law were formulated by this Court in RSA 989/2006:

i) When Ext.A1 will dated 25.10.1962 only mentions about a pathway in between the properties bequeathed thereunder as schedules E and F, was the plaintiff entitled to claim a right of way over a 6 feet wide pathway described as per plaint C schedule property and were the courts below justified in granting a decree as claimed ?ii) When Ext.C1 report and Ext.C1(a) plan prepared by the Commissioner do not identify the plaint C schedule property and also do not describe plot No.II as a pathway, were the courts below justified in granting a decree on the assumption that plaint C schedule property is part