Kerala High Court
Abraham Jacob vs Elizabeth George on 7 November, 2024
RSA NO. 335 OF 2022 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
RSA NO. 335 OF 2022
AGAINST THE JUDGMENT DATED 15.11.2021 IN AS NO.22 OF 2019 OF SUB
COURT, THIRUVALLA
ARISING OUT OF THE JUDGMENT DATED 30.03.2019 IN OS NO.645 OF 2014
OF MUNSIFF COURT, THIRUVALLA
APPELLANT/APPELLANT/DEFENDANT:
ABRAHAM JACOB
AGED 57 YEARS
S/O JACOB, KOCHUPLAMMOOTTILAYA MANALUKALAYIL HOUSE, KUMBANAD
P.O, THATTAKKATTU MURI, KOIPURAM VILLAGE, THIRUVALLA TALUK,
PATHANAMTHITTA DISTRICT, REPRESENTED BY HIS POWER OF
ATTORNEY HOLDER PHILIP CHANDY, S/O LATE K.C.PHILIP,
KANNAMALA, KERA- A6/1, POWDIKONAM P.O, ULIYUZATHURA VILLAGE,
TRIVANDRUM.
BY ADVS.
JOBY JACOB PULICKEKUDY
ANIL GEORGE
RESPONDENTS/RESPONDENTS/PLAINTIFF:
1 ELIZABETH GEORGE
W/O GEORGE JACOB, MAVELIPURAM HOUSING COLONY, 7/309,
KAKKANAD, THRIKKAKARA TALUK, ERNAKULAM DISTRICT
2 JACOB GEORGE,
S/O ELIZABETH GEORGE, MAVELIPURAM HOUSING COLONY, 7/309,
KAKKANAD, THRIKKAKARATALUK, ERNAKULAM DISTRICT
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3 ELZY GEORGE,
SISTER OF JACOB GEORGE, MAVELIPURAM HOUSING COLONY, 7/309,
KAKKANAD, THRIKKAKARATALUK, ERNAKULAM DISTRICT
BY ADVS.
C R REGHUNATHAN (C)HIRACKAL KOVILAKOM. (R)EVIVARMA
B.HARRYLAL(K/837/2009)
R.BALAKRISHNAN(K/141/2009)
U.RESHMA GOPAN(K/937/2013)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The defendant in a suit for declaration and mandatory
injunction is the appellant herein. The original Plaintiff and
the defendant are brothers.
2. The original plaintiff, who died during the pendency of the
suit, filed the suit to declare the right of the plaintiff over the
plaint schedule item No.3 pathway as per Ext.A2 Will of his
father, to direct the defendant to remove the obstruction in
the plaint schedule item No.3 property by cutting and
removing the trees standing in the plaint schedule item No.3
pathway and also to restrain the defendant and men under
him from obstructing the use of plaint schedule item
No.3 property by the plaintiff.
3. On the death of the original plaintiff, the additional plaintiffs
2 to 4 were impleaded in the suit.
4. Plaint Schedule Item No.1 Property is derived by the plaintiff
as per Ext.A1 Will. It has an extent of 6.07 Ares. Plaint
schedule item No.2 property, having an extent of 1.56 acres
of land, is derived by the defendant as per the very same
Ext.A1 Will. Plaint Schedule item No.2 is situated on the
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eastern side of the plaint schedule item No.1. The plaint
schedule item No.3 is described as the way starting from the
road on the eastern side and passing through the southern
side of plaint schedule item No.2 towards the western side
and ending at the south-eastern corner of plaint schedule
item No.1 property, having a width of about 12 feet and
length of about 250 ft. According to the plaintiff, the plaintiff
derived right through the said way as per Ext.A2 Will. Ext.A1
Will is dated 21.12.1987. Ext.A2 Will is dated 26.07.2000.
The father of the plaintiff and the defendant died on
27.09.2000.
5. As per the plaint allegations, the cause of action for the suit
is described as the mother having life-interest in both the
properties, and the mother died in the year 2012; that after
the death of the mother, the defendant closed the way, which
is described in Ext.A2 Will.
6. The Trial Court decreed the suit, declaring that the plaintiff
has right, title, and possession over the plaint schedule item
No.3, directing the defendant to remove the obstruction in
Plaint Schedule item No.3 property and restraining the
defendant and men from causing obstruction in the plaint
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schedule item No.3 property.
7. The defendant filed an Appeal before the First Appellate
Court. The First Appellate Court partly allowed the appeal,
declaring that the plaintiffs have the right over the plaint
schedule item No.3 pathway and maintained the other
directions with respect to the removal of obstruction and
prohibitory injunction.
8. The respondents have appeared through counsel since they
had filed a caveat.
9. I heard the learned counsel for the appellant
Sri. Joby Jacob Pulickekudy and the learned counsel for the
respondents Sri.C.R.Regunathan.
10. The learned counsel for the appellant argued that Ext.A2
Will is not properly proved before the Trial Court. The
plaintiff has not removed the suspicious circumstances
surrounding the execution of Ext.A2 Will. The father of the
original plaintiff and the defendant were more familiar and
fluent in English, and the first Will was accordingly executed
in English, but the second Will was seen executed in
Malayalam, which is highly improbable. The attesting
witness, who was examined as PW2, is not a witness to
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Ext.A2 Will. He has admitted in evidence that he is only a
scribe. As per Ext.A2 Will, what is bequeathed is an existing
way, whereas no such way was available as on the date of
execution of the said Will. A transfer cannot be made with
respect to a non-existing property. While modifying the
judgment and decree of the Trial Court, the Appellate Court
also committed a mistake by declaring the right of the
plaintiff over the plaint schedule item No.3 pathway. Even if
it is assumed that the right of way is granted by the father,
the plaintiffs have only easement rights over the plaint
schedule item No.3 pathway, and the possession of the
property shall be with the defendant.
11. On the other hand, the learned counsel for the
respondents argued that the plaint schedule item No.2 alone
has road frontage, and the father wanted to give a pathway
to the property given to the original plaintiff and hence,
Ext.A2 Will was executed subsequent to Ext.A1. In Ext.A2
Will itself, it is stated that the way was omitted to be included
in the first Will. Though Ext.A2 Will is of the year 2000, the
cause of action for filing the suit arose only after the death
of the mother, who had a life interest, when the defendant
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closed the pathway.
12. I have considered the rival contentions.
13. Exts.A1 & A2 are registered Wills. Both the Wills were
prepared by PW2, who is an Advocate by profession. In
Ext.A2, even though it is stated that Ext.A2 is prepared by
PW2, he has signed as Witness No.2 in Ext.A2. Hence, the
contention of the appellant that PW2 is only a scribe to
Ext.A2 is unsustainable. There is no legal bar for the Scribe
to act as a witness to the Will. The contention of the
appellant is that since Ext.A2 Will was executed in English
and the father was more familiar and fluent in English if the
father really wanted to execute a Will, the Will would have
been executed in English only. Such contention is not seen
raised either in the Written Statement or in the evidence of
DW1. When PW2 was cross-examined, no suggestion was
made with respect to the same. PW2 was not questioned as
to why Ext.A1 Will was prepared in English, and why Ext.A2
Will was executed in Malayalam.
14.The next contention of the appellant is that an existing right
alone can legally be transferred and what is transferred as
per Ext.A2 is not an existing right and that even though it is
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stated in Ext.A2 that the way is existing the prayer for a
mandatory injunction for removal of trees would indicate
that the way does not exist. Here is a case where the father
bequeathed plaint schedule item Nos.1 & 2 properties in
favour of the original plaintiff and the defendant. The said
Will will come into effect only after the death of the father. If
the father wanted to give a way, in addition to the bequest
already made, the only option available to him is to execute
an additional Will with respect to the said way, which will
come into operation along with the first Will. If a transfer is
made with respect to the way, the father will not be able to
revoke or modify the same even if he wants to vary or modify
Ext.A1 Will. In Ext.A2 Will, it is specifically stated that it was
omitted to include the way to plaint schedule item No.1
property while executing Ext.A1 Will. The said
circumstances clearly indicate that the father wants to give
a way through the southern side of the plaint schedule item
No.2 property to item No.1 property. Merely because the
width of the way and the position of the way is stated, it could
not be assumed that it is with respect to an existing way
available in plaint schedule item No.2. Since plaint schedule
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items No.1 & 2 are to be divided only after the death of the
father there was no question of any existing way at the time
of execution of Ext.A2 Will.
15.As rightly pointed out by the learned counsel for the
appellant, even while modifying the judgment and decree of
the Trial Court, the First Appellate Court committed an error
in granting right over plaint schedule item No.3 pathway in
favour of the plaintiff. The only right available to the plaintiff
is an easement right, and the possession shall always remain
with the defendant. The plaintiff has no right or authority to
enclose the said pathway on the basis of the aforesaid right
declared by the appellate court. Hence, the declaration of
the Appellate Court that the plaintiffs have right over the
plaint schedule item No.3 pathway is liable to be modified to
declare that the plaintiffs have only easement right over the
plaint schedule item No. 3 pathway.
16. The learned counsel for the appellant pointed out that on
the strength of the appellate decree, the plaintiffs have
carved out a way and enclosed the said way by fixing barbed
wires separating plaint schedule item No.3 from plaint
schedule item No.2. As found earlier, the plaintiffs have no
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right or authority to enclose the said pathway. Their rights
are limited to the usage of plaint schedule item No.3
pathway for passage as well as for drawing of electricity lane
and cable, etc., as provided in Ext.A2.
17.The learned counsel for the respondents admitted that the
rights of the plaintiffs are limited to the easement right and
assured that if any separation of the plaint schedule item
No.3 is made by the plaintiffs with the rest of plaint schedule
item No.2, property, the same will be removed by the
plaintiffs at their expenses. In case the respondents violate
this assurance, the appellant is free to get it done through
the process of the court and recover expenses from the
respondents. Since the learned Counsel for the respondents
concedes this, there is no need to formulate any question of
law in this regard for interfering with the judgment of the
First Appellate Court.
18.In view of the aforesaid circumstances, this Regular Second
Appeal is partly allowed by modifying the declaration in the
judgment and decree of the First Appellate Court to the
effect that the plaintiffs have only easement right over plaint
schedule item No.3 pathway. Since such modification is not
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objected to by the learned counsel for the respondents,
I have not formulated any question of law in the Regular
Second Appeal.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg/xx
