Partly allowed

George v. Sebastian

Kerala HC8 Nov 2018RSA/4/2005

Case brief

AI extract

What is this about?

This regular second appeal concerns a dispute over land title between brothers under a registered Will. The High Court modificado the first appellate court's decree, holding that the reduction in measured land should be apportioned. The court redefined the boundary to 70 centimeters from a Chapra to prevent access obstruction for the respondent, granting the appellant possession of a smaller dispu

What did the court decide?

Boundary line modified to pass 70 centimeters away from Chapra; decree modified to reflect this boundary and affect possession of the disputed 0.500 cents; Ext.C1(b) plan incorporated.

George Vs Sebastian — Partition | Kerala HC (2018)

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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 P.SOMARAJAN

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THURSDAY ,THE 08TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940

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RSA.No. 4 of 2005

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AGAINST THE DECREE/JUDGMENT IN AS 67/2002 of ADDL.SUB COURT, KOCHI DATED 23-03-2004

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AGAINST THE DECREE/JUDGMENT IN OS 315/1998 of PRL.M.C., KOCHI DATED 31-01-2002

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APPELLANT/S:

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GEORGE AGED 49, BUSINESS, RESIDING AT C.C.18/2468,, ANANDASSERY HOUSE, THOPPUMPADY, KOCHI-5.

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BY ADVS. SRI.SAJAN MANNALI SRI.M.P.JAYAKUMAR

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RESPONDENT/S:

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SEBASTIAN S/O LATE PERUKUTTY, RESIDING AT C.C.18/2477, THOPPUMPADY, KOCHI-5.

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BY ADVS. SMT.M.A.VAHEEDA BABU SRI.BABU KARUKAPADATH

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 4 of 2005 2

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JUDGMENT

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Aggrieved by the decree and judgment of the first appellate court in A.S.67 of 2002 (Additional Sub Court, Kochi) dated 23/03/2004, the defendant came up with this appeal.

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The parties herein below referred to in their status in the original suit as plaintiff and defendant. The plaintiff and defendant are brothers. Both of them are claiming their respective title over the property

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scheduled in the plaint based on a registered Will left out by their deceased father. The dispute is pertaining to the property allotted to the plaintiff having an extent of 5 cents and the property given to the defendant which is stated in the Will as approximately 2.5 cents and their location and boundary. The suit was filed for fixation of boundary and recovery of possession by the plaintiff. The allegation is that, on measurement his property found to be less than 5 cents. It is contended that the defendant encroached upon a portion of property and reduced into his possession and hence the suit for fixation of boundary and recovery of possession of the encroached portion.

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RSA.No. 4 of 2005 3

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The Commissioner who was appointed in the case

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went to the property and prepared two set of plans exhibited as C1(a) and C1(b). It was named by the Commissioner as A sketch and B sketch. The trial court dismissed the suit finding that there is no encroachment. It was reversed by the first appellate court by accepting Ext.C1(b) plan and fixed the boundary between these two properties by the impugned decree and judgment.

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The dispute is centered around the location of

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property and the actual extent given to the plaintiff and the defendant under a registered Will. The learned counsel for the plaintiff submitted that the intention of the testator has to be gathered from various recitals in Ext.A2 Will. It was also submitted that, the testator had given some what equal extent of property to all his three sons and that a clear extent of 5 cents was given to the plaintiff which is well evident from the various recitals in Ext.A2 Will. Going by A2 Will it is clear that, the extent of property given to the plaintiff comes to (an extent of) 5 cents. It is further stated in the

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said document that the property given to the defendant would come to approximately 2.5 cents. Taking benefit of the said recital it was contended that since there is

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a reduction in extent of property on measurement the

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RSA.No. 4 of 2005 4

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defendant has to suffer the reduction in extent as per A2 Will. The intention of the testator to give a clear extent of 5 cents to the plaintiff, has to be honored. It is further submitted that the property which was given to the defendant is described as the property after excluding 5 cents of property given to the plaintiff. Now on measurement by the Commissioner after excluding the 5 cents of property given to the plaintiff, the property which can be allotted to the share of defendant would come to less than one cent more specifically 0.861 cents. But going by the description in Ext.A2 Will (deed), it is clear that, what is actually intended by the testator is to give an extent of 5 cents of property to the plaintiff and approximately 2.5 cents of property to the defendant. If the intention of the testator was

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to give the remaining extent of property after excluding 5 cents, it might have find a place in the Will itself. But in the Will what is specified by the testator is that, “the balance extent which would approximately come to 2.5 cents” is really stands for an extent of property in and around 2.5 cents. It shows that the testator was under the impression that the balance extent would approximately come to 2.5 cents after excluding the 5 cents of property to be given to the plaintiff. The

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RSA.No. 4 of 2005 5

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testator also specified how the property can be divided

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by making a specification that it should be “one feet away from Chapra.” The expression this “one feet away from Chapra” would sufficiently show that the testator was having an idea about the exact boundary which divides the said properties. Otherwise there may not be any mention in the Will with respect to the boundary line as “one feet away from the Chapra.” It shows that testator was having a clear idea about the place wherein the 5 cents of property would constitute and the place wherein the approximate 2.5 cents of property would constitute. The incorporation of the condition that it should be one feet away from the Chapra assumes importance while gathering the intention of the testator. On measurement it was found that, the plaintiff was in possession of

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4.500 cents and the defendant is in possession of 0.861+0.500 cents of property totalling 1.361 cents and

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a plan was drawn separately showing this disputed 0.500 cents which is in possession of the defendant. A decree

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was granted by the first appellate court giving this disputed half cents of property to the plaintiff so as to make it as 5 cents. It would reduce the extent of property which can be allotted to the share of defendant to less than one cent that is 0.861 square links.

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RSA.No. 4 of 2005 6

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As discussed above, the testator was actually

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having an idea about the portion of property which can be given to the plaintiff and the defendant and his intention was to give approximately 2.5 cents of property to the defendant. If his intention was to give the balance extent, after excluding the 5 cents to be given to the plaintiff, it might have found a place in the Will itself instead of stating as approximately 2.5 cents. A clear scrutiny of the Will in question would show that the testator had defined the boundary separating the 5 cents of property and the balance approximately 2.5 cents of property which is well evident from the fact that he had defined the place wherein the boundary would go on separation as one feet away from chapra. This would show that the testator has clear understanding with respect to the extent of property available. If the balance was less than one cent, it might have been noticed by the testator and the wording and the recital in the Will might be in such a way stating that the “balance extent” or “approximately one cent” instead of “approximately two and half cents”. In anyway, it is too dangerous to substitute “less than one cent” in the place of “approximately 2.5 cents”. It is now settled that when the parties derive title over a property under the same

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RSA.No. 4 of 2005 7

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document and when there is reduction in extent on measurement it has to be apportioned among the parties. The very same principle can be adopted when there is excess land and parties are entitled to proportionate share over the excess land. Ofcourse, if the recital contained in the Will says otherwise, that doctrine cannot be applied. By going through the various recitals and the specific ment ion about the location of dividing boundary line by the testator himself by incorporating the wording that it should be one feet away from the Chapra would clearly reveal the intention of the testator that he was actually intended to give 5 cents to the plaintiff and approximately 2.5 cents to the defendant

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and that the boundary line should pass one feet away from the chapra. Now going by the possession of the parties the boundary line would pass 70 centimeters away from the Chapra.

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Needless to say that oral evidence tendered by the respective parties regarding their possession though relevant with respect to the portion of property held by them cannot be imported to interpret the Will of the

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testator. The Will has to be interpreted by sitting on the armchair of the testator and not on the basis of the

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oral evidence tendered by the parties in the suit.

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RSA.No. 4 of 2005 8

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Further it is reported in Page No.3 of the Commissioner's report that if the disputed half cents of property (500 square links) gives to the plaintiff it would obstruct and curtail the means of access to the two shop rooms situated in the property of the defendant and hence, the decree and judgment of the first appellate court is hereby modified. The correct boundary line defining and separating the boundary of both the plaintiff and the defendant would be the one separating the Orange shaded portion and pencil colour shaded portion, (that is the orange coloured portion having an extent of 0.0174 hector and the pencil colour shaded portion having an extent of 0.0028) in Ext.C1(b) plan. The property of defendant would constitute the green coloured portion as well as pencil coloured portion as per Ext.C1(b) plan (A sketch). Ext.C1(b) plan will form part of the decree.

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Appeal allowed in part accordingly. No order as to cost of appeal.

Sd/-

P.SOMARAJAN

JUDGE

MSP

George v. Sebastian

Case brief

What is this about?

What did the court decide?

George v. Sebastian

Case brief

What is this about?

What did the court decide?

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