Allowed

Vanajakumari K.K. v. Nil

Kerala HC23 Nov 2012MFA (G & W)/145/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal and set aside the District Court's dismissal of an Original Petition. The Court held that due to the emergence of a public municipal road, the proposed assignment of the private right of way to the brother-in-law is advantageous to the minors. Relief includes permitting the assignment contingent upon depositing the consideration money in a bank in the minors' name

What did the court decide?

The Original Petition to release the right of way was allowed; the impugned order dismissed. Permission granted to assign rights to Vinodkumar provided `50,000/- is deposited in bank accounts for the

Vanajakumari K.K. Vs Nil — Partition | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE

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THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

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FRIDAY, THE 23RD DAY OF NOVEMBER 2012/2ND AGRAHAYANA 1934

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MFA.(G&W) No. 145 of 2012

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C(OP).131/2012 of VI ADDL.DISTRICT COURT, ERNAKULAM

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APPELLANT/PETITIONER/MOTHER AND NATURAL GUARDIAN OF MINORS

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VANAJAKUMARI K.K.,, AGED 41 YEARS W/O.T.V.SREEVALSAN,PATTAMANA VEMMELIL THEKKUMBHAGAMVILLAGE,PUTHIYAKAVU,THRIPUNITHURA.P.O.

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BY ADVS.SRI.ABRAHAM P.GEORGE

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SRI.K.VINODKUMAR (707/89)

SMT.M.SANTHY

RESPONDENT:

NIL

THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.

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M. F. A. (G & W) No.145 of 2012

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Dated this the 23^rd day of November, 2012

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JUDGMENT

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Pius C. Kuriakose, J

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The appellant is the widow of one P.V.Sreevalsan who died intestate on 30/01/2010. In her wedlock with late Sreevalsan she has two children P.Vishnu Valsan and P.Vysakh Valsan, both of whom are minors. Late Sreevalsan was the absolute owner in possession of five cents of land in Sy. No.617/4 of Thekkumbhagam village allotted to him under schedule-A to partition deed No.582/2003 of the South Registry, Tripunithura. The 'B' schedule property in that partition deed is alloted towards the joint share of Malathiamma and Vinodkumar, mother and brother respectively of Sreevalsan. Right of way is provided under that partition deed to 'A' schedule property through the 'B'

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M. F. A. (G & W) No.145 of 2012 -2-

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schedule property. In fact the partition deed provides for a path way having a width of three metres and length of nine metres through 'B' schedule property for accessing the 'A' schedule property. It is that pathway which is described in the schedule to the Original Petition filed by the petitioner before the court below under Section 29 of the Guardian & Wards Act.

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The petitioner's case is that at the time when the partition deed was executed on the northern side of 'B' schedule property there was a private pathway. But now the owners of that private pathway surrendered the same to Tripunithura municipality and that pathway has now become a public pathway which is being maintained by the municipality. The above pathway has been tarred and made motorable by the municipality. It has become a public pathway in all respects. The appellant and her minor children are now enjoying the facility of that public pathway.

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M. F. A. (G & W) No.145 of 2012 -3-

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They have installed a gate opening to the public way on the northern boundary. Thus the appellants are not putting the scheduled pathway through 'B' schedule property in the partition deed to use. According to the appellant, Malathiamma, her mother-in-law is no more and Vinodkumar her brother-in-law has become absolute owner of the 'B' schedule in the partition deed as well as the pathway described in 'B' schedule to the Original Petition. Vinodkumar intends to sell his property to others. It is agreed between the petitioner and Vinodkumar that whatever rights the petitioner and her minor children are having upon the pathway being legal heirs of late Sreevalsan will be assigned by them to Vinodkumar. Vinodkumar has agreed that as consideration he will pay ` 50,000/-. The intention of the appellant is to utilise the amount for the welfare of the children who are now school going boys. Even though nobody resisted the Original

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Petition before the District Court the learned court dismissed the Original Petition taking the view that in the pleadings the appellant has no case that release of the right of the petitioner and her wards over the schedule pathway is of necessity and evident advantage to the wards. According to the District Court assignment of the pathway rights will diminish the value of the property belonging to the petitioner and her wards.

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In this appeal, the above order of the District Court is challenged on various grounds.

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We have heard the submissions of Sri.Abraham P. George, the learned counsel for the appellant who submitted that the approach of the learned District Judge was highly technical. The appellant does not have any ownership over the pathway. What the minors and the appellant is having is only a right of way through the pathway. Appellants are no longer using that pathway in view of the municipal road

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M. F. A. (G & W) No.145 of 2012 -5-

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which has come by the side of their property. As directed by us the appellant has produced two photographs before this Court which will show the existence of the municipal road on the northern side of the appellant's property newly formed as well as the schedule pathway which is seen as a beaten track not under regular use. According to us, in view of the emergence of the pucca tarred public road virtually belonging to the municipality the case of the appellant that she and her wards are no longer using the schedule pathway is highly probable. The oral evidence of PW1 is quite convincing. We hold that the proposed assignment will be of advantage to the minors.

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In the result, the impugned order is set aside. OP No.131/12 is allowed. Petitioner and her minor children represented by herself are permitted to release their rights of way over the pathway made mention of in the OP in favour of Vinodkumar who is the brother of the late husband

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of the petitioner and the paternal uncle of the two minor children on condition that before the sale deed is executed the consideration of 50,000/- will be deposited as two deposits of 25,000/- each in favour of two minors with State Bank of India, High Court Branch till such time as the two minors attain majority. The proceeds of the deposits will be released to the minors upon their attaining majority.

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The appeal is allowed without any order as to costs.

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Sd/PIUS C. KURIAKOSE JUDGE

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Sd/BABU MATHEW P. JOSEPH JUDGE

kns/-

//TRUE COPY//

P.A. TO JUDGE

M. F. A. (G & W) No.145 of 2012 -7-

Vanajakumari K.K. v. Nil

Case brief

What is this about?

What did the court decide?

Vanajakumari K.K. v. Nil

Case brief

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