{"id":122607,"date":"2009-12-03T00:00:00","date_gmt":"2009-12-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/treesa-george-vs-karmeli-baby-on-3-december-2009"},"modified":"2014-07-08T07:43:59","modified_gmt":"2014-07-08T02:13:59","slug":"treesa-george-vs-karmeli-baby-on-3-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/treesa-george-vs-karmeli-baby-on-3-december-2009","title":{"rendered":"Treesa George vs Karmeli @ Baby on 3 December, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Treesa George vs Karmeli @ Baby on 3 December, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nEx.SA.No. 20 of 2008()\n\n\n1. TREESA GEORGE, W\/O.GEORGE, AGED 65,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. KARMELI @ BABY, D\/O.AUGUSTINE, AGED 54,\n                       ...       Respondent\n\n2. T.M.ADIOQUE, S\/O.HASSAN,\n\n3. AGNISA, W\/O.LATE XAVIER, D.NO.14\/1879,\n\n4. K.X.JOSEPH, S\/O.LATE XAVIER, KURUSINGAL\n\n5. HENRY, S\/O.LATE XAVIER, H.NO.14\/1879,\n\n6. BABY JOSY, D\/O.LATE XAVIER,\n\n7. SOOSYK JAIMY, D\/O.LATE XAVIER,\n\n8. JANCY MICHAEL, D\/O.LATE XAVIER,\n\n                For Petitioner  :SRI.K.MANOJ CHANDRAN\n\n                For Respondent  :SRI.S.B.PREMACHANDRA PRABHU\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :03\/12\/2009\n\n O R D E R\n                             THOMAS P. JOSEPH, J.\n                            --------------------------------------\n                               Ex.S.A.No.20 of 2008\n                            --------------------------------------\n                  Dated this the 3rd day of December, 2009.\n\n                                      JUDGMENT\n<\/pre>\n
              The Execution Second Appeal arises from judgment and decree of<\/p>\n
learned Sub Judge, Kochi in Execution First Appeal No.22 of 2008 arising from<\/p>\n
the order on E.A.No.93 of 2008 in E.P.No.117 of 1998 in O.S.No.594 of 1996 of<\/p>\n
the court of learned Principal Munsiff, Kochi.\n<\/p>\n<\/p>\n
       2.     Short facts necessary for consideration of Second Appeal are:<\/p>\n
one Xavier acquired title and possession of 7.610 cents of land together with a<\/p>\n
building thereon as per Ext.A3, assignment deed No.2380 of 1972. While so,<\/p>\n
he gifted allegedly the entire suit property in favour of his grandson, Antony (son<\/p>\n
of respondent No.1) as per Ext.A1, gift deed No.2742 of 1985. Antony, in turn<\/p>\n
assigned the suit property to respondent No.1 as per Ext.A2. Respondent No.1<\/p>\n
filed suit for recovery of possession of the suit property and building thereon<\/p>\n
from respondent No.2 alleging that respondent No.4 in the appeal, former<\/p>\n
husband of respondent No.1 unauthorisedly inducted respondent No.2 into<\/p>\n
possession of the suit property and building. A decree for eviction was granted<\/p>\n
in favour of respondent No.1 and that has become final.              In the course of<\/p>\n
execution one of the legal representatives of Xavier filed a petition in respect of<\/p>\n
610 sq. links of land (scheduled in E.A.No.93 of 2008) claiming that the gift as<\/p>\n
per Ext.A1 is excluding the said 610 sq. links and that on the death of Xavier all<\/p>\n
Ex.S.A.No.20\/2008<\/p>\n
                                           2<\/span><\/p>\n
his legal heirs are entitled to share in the said 610 sq. links. That petition did not<\/p>\n
succeed. Later appellant filed E.A.No.93 of 2008 in the executing court claiming<\/p>\n
that the said 610 sq. links which according to the appellant is not covered by<\/p>\n
Ext.A1 belonged to all the legal representatives of Xavier in co-ownership and<\/p>\n
hence in delivering possession as per the decree in the suit the said 610 sq.<\/p>\n
links has to be excluded.         That application was opposed by respondent<\/p>\n
No.1\/decree holder and after enquiry executing court found against the appellant<\/p>\n
which the first appellate court has confirmed. Hence the Second Appeal urging<\/p>\n
the following as the substantial question of law:\n<\/p>\n<\/p>\n
       When out of the 7.610 cents of property owned by late Xavier, three cents<\/p>\n
were sold to one Usha in the year 1985 and out of the balance extent of 4.610<\/p>\n
cents late Xavier had gifted four cents alone to his grandson Antony and the<\/p>\n
balance extent 610 sq. links of property including a portion of the building should<\/p>\n
necessarily be found with him as has been observed by the advocate<\/p>\n
commissioner in Exts.A4 and A4(a), reports were the courts below justified in<\/p>\n
holding that the said 610 sq. links had automatically vested in respondent No.1?<\/p>\n
       3.     Appellant filed I.A.No.2889 of 2009 under Order 41 Rule 27 of the<\/p>\n
Code of Civil Procedure (for short, “the Code”) to receive additional evidence and<\/p>\n
produced the C.C. of assignment deed No.3046 of 1985 dated 10.10.1985<\/p>\n
executed by Xavier in favour of Usha in respect of the three cents towards east<\/p>\n
of the total of 7.610 cents. Since the document is relevant and necessary for a<\/p>\n
Ex.S.A.No.20\/2008<\/p>\n
                                           3<\/span><\/p>\n
proper decision of the controversy raised in this case that application is allowed<\/p>\n
and the document is marked as Ext.A6. It is contended by learned counsel for<\/p>\n
appellant that though Order 21 Rule 101 of the Code contemplated a detailed<\/p>\n
enquiry into all questions including title and possession when a claim petition is<\/p>\n
preferred,   executing court has conducted the enquiry in a summary nature<\/p>\n
without going into the merits of the contentions raised and decided against the<\/p>\n
appellant. It is also contended by learned counsel that first appellate court has<\/p>\n
disposed of appeal without referring to the contentions raised by the parties.<\/p>\n
Learned counsel contends that going by Ext.A1, entitlement of Antony was only<\/p>\n
for four cents and building situated thereon and hence he was not competent to<\/p>\n
transfer to respondent No.1 (as per Ext.A2) anything more than what he got as<\/p>\n
per Ext.A1.    Learned counsel has       referred to me the evidence on record.<\/p>\n
Learned counsel for respondent No.1 per contra contended that appellant has<\/p>\n
been put up by respondent No.4 who himself had preferred           a claim petition<\/p>\n
and lost.   It is also contended by learned       counsel that the entire decree<\/p>\n
schedule property and the building belongs to respondent No.1.<\/p>\n
       4.     No doubt when a claim petition is filed if the court does not refuse<\/p>\n
to entertain the same, it has to be enquired into and all questions regarding title,<\/p>\n
interest and possession arising between the parties to the proceeding are to be<\/p>\n
decided. The order of adjudication will have the force of a decree. Therefore<\/p>\n
the executing court is required to decide the questions relating to title and<\/p>\n
possession. So far as Ext.A1 is concerned, the contention raised by learned<\/p>\n
counsel for respondent No.1 is that though while describing the property gifted to<\/p>\n
Ex.S.A.No.20\/2008<\/p>\n
                                        4<\/span><\/p>\n
Antony the extent is stated as four cents, a reading of Exts.A1, A2 and A6 would<\/p>\n
show that what was gifted to Antony is the entire property lying within the<\/p>\n
boundaries mentioned in the schedule which according to the learned counsel<\/p>\n
would take in 4.610 cents and the building situated thereon. Learned counsel<\/p>\n
submits that Xavier assigned three cents towards east of the property in favour<\/p>\n
of one Usha as per Ext.A6 and that assignment is after the gift in favour of<\/p>\n
Antony as per Ext.A1. Ext.A2 is the document executed by Antony in favour of<\/p>\n
respondent No.1 where the extent of property assigned is stated as 4.610 cents<\/p>\n
and the building thereon. Controversy is regarding the 610 sq. links which the<\/p>\n
appellant say, did not form part of the gift as per Ext.A1. Learned counsel<\/p>\n
invited my attention to Ext.A5, copy of written statement filed by respondent No.1<\/p>\n
in O.S.No.59 of 2007 of the court of learned Munsiff, Kochi, a suit instituted by<\/p>\n
the appellant against other legal representatives of Xavier claiming partition<\/p>\n
and separate possession of the disputed 610 sq. links. Learned counsel submits<\/p>\n
that in Ext.A5 there is no contention for respondent No.1 that she is in<\/p>\n
possession of the 610 sq. links. In response it is pointed out by learned counsel<\/p>\n
for respondent No.1 that though the disputed 610 sq. links is shown by the<\/p>\n
advocate commissioner in Exts.A4 and A4(a) as situated on the eastern portion<\/p>\n
of the property admittedly gifted to Antony as per Ext.A1, going by the plaint<\/p>\n
averments in O.S.No.59 of 2007 the disputed 610 sq. links is shown in that<\/p>\n
plaint as situated on the south-west of the property gifted to Antony as per<\/p>\n
Ext.A1. It is submitted by learned counsel that O.S.No.59 of 2007 has ended in<\/p>\n
a dismissal and the matter is pending consideration in the Sub Court, Kochi in<\/p>\n
Ex.S.A.No.20\/2008<\/p>\n
                                          5<\/span><\/p>\n
A.S.No.12 of 2009.\n<\/p>\n
       5.     It is seen from the copy of decree in the present suit given to me for<\/p>\n
perusal by learned counsel for respondent No.1 that the extent of property<\/p>\n
described therein is 4.416 cents (and not 4.610 cents) ofcourse, lying within<\/p>\n
the boundaries mentioned therein and the building situated thereon.            The<\/p>\n
boundary description in the decree schedule tallied with the description in<\/p>\n
Ext.A1. Learned counsel for respondent No.1 states that mention of the extent<\/p>\n
as 4.416 cents in the plaint schedule is a         mistake in drafting the plaint .<\/p>\n
Appellant also has no case that entitlement of respondent No.1 is for 4.416<\/p>\n
cents. Dispute is whether it is four (4) cents or 4.610 cents.<\/p>\n
       6.     It is contended by learned counsel for respondent No.1 that a<\/p>\n
reading of Ext.A1 would show that less the three cents towards the eastern side<\/p>\n
which was later assigned to Usha and others as per Ext.A6, the entire property<\/p>\n
on the west (ie. 4.610 cents) including building was gifted to Antony as per<\/p>\n
Ext.A1.   It is also the contention of learned counsel when there is conflict<\/p>\n
between extent, survey number, boundaries, etc. the one description which is<\/p>\n
more clear is to prevail over the other and in this case, considering the fact that<\/p>\n
eastern boundary in Ext.A1 is stated as property of Xavier (which according to<\/p>\n
learned counsel was later assigned to Usha as per Ext.A6) and other boundary<\/p>\n
descriptions and particularly taking into consideration that the entire building (a<\/p>\n
portion of which admittedly comes within the disputed 610 sq. links) has been<\/p>\n
gifted to Antony as per Ext.A1, it must be taken that Xavier had gifted 4.610<\/p>\n
cents and entire building to Antony as per Ext.A1.\n<\/p>\n
Ex.S.A.No.20\/2008<\/p>\n
                                        6<\/span><\/p>\n
       7.     At the time when Xavier gifted a portion of his property the total<\/p>\n
extent of which, it is not disputed by either side is 7.610 cents the donee<\/p>\n
(Antony, his grandson) was a minor. The donee was represented by his father in<\/p>\n
Ext.A1, the gift deed. Ext.A1 states that the four (4) cents together with the<\/p>\n
building bearing door No.XV\/1359 is gifted to Antony. Ext.A1 does not give the<\/p>\n
measurements of the property but states the extent as four (4) cents. The<\/p>\n
boundary descriptions in Ext.A1 is property of Xavier (the donor) on the east,<\/p>\n
property in same survey number on the north and property of third parties on the<\/p>\n
west and south. In Ext.A2, assignment deed executed by Antony in favour of<\/p>\n
respondent No.1, the property assigned is stated to be 4.610 cents made upto<\/p>\n
four (4) cents referred to in Ext.A1 and 610 sq. links in his possession and<\/p>\n
enjoyment and bounded by property in the same survey number on the east and<\/p>\n
north and property of third parties on the west and south. After gift of the<\/p>\n
property covered by Ext.A1, Xavier assigned the three cents forming the eastern<\/p>\n
portion of the 7.610 cents to Usha as per Ext.A6 describing the western<\/p>\n
boundary as property of himself in the same survey, property of third party on the<\/p>\n
east, five (5) links wide way on the north and puramboke way on the south.<\/p>\n
Learned counsel for appellant submits that when after gift of the western portion<\/p>\n
to Antony as per Ext.A1, Xavier assigned the eastern portion to Usha as per<\/p>\n
Ext.A6 he described the western boundary of the property assigned as per<\/p>\n
Ext.A6 as “my property in the said survey number”, the inescapable conclusion<\/p>\n
is that even after Ext.A1, Xavier retained some property on the east of the<\/p>\n
property referred to in Ext.A1 which was shown as the western boundary in<\/p>\n
Ex.S.A.No.20\/2008<\/p>\n
                                         7<\/span><\/p>\n
Ext.A6. According to the learned counsel, the said property is the 610 sq. links<\/p>\n
which is not dealt with as per Exts.A1 or A6. Learned counsel contends that<\/p>\n
Ext.A2, assignment deed also would indicate        that what Antony got by way of<\/p>\n
gift as per Ext.A1 is only the four (4) cents and over the 610 sq. links in dispute<\/p>\n
he was only claiming possessory right which cannot defeat the claim of the legal<\/p>\n
representatives of Xavier over the said 610 sq. links.        Learned counsel for<\/p>\n
respondent No.1 would argue that in Ext.A6 the western boundary is described<\/p>\n
as “my property in the said survey number” only because as per Ext.A1, Xavier<\/p>\n
gifted the property to his grandson, Antony represented by the father of the<\/p>\n
latter, property was put in possession of the father for and on behalf of Antony<\/p>\n
and since Xavier had retained a life interest for himself in the building referred to<\/p>\n
in Ext.A1.\n<\/p>\n
        8.    Reading of Exts.A1,A2 and A6, there appears to be a conflict in<\/p>\n
the extent of property referred to in Ext.A1. If one is to prefer the extent, it has<\/p>\n
to be held that the property gifted as per Ext.A1 is only four (4) cents in which<\/p>\n
case contention of appellant regarding the disputed 610 sq. links should prevail.<\/p>\n
But when there is conflict between boundaries, extent, etc. the one which is<\/p>\n
more clear and more specific has to be preferred. In some cases it may be the<\/p>\n
extent while in some other cases it may be the boundaries or the side<\/p>\n
measurements that would prevail. The rule is one of construction (see Savithri<\/p>\n
Ammal Vilasini Ammal v. Jayaram Pillai Padmavathi Amma<\/a><\/p>\n
(1989 (2) KLJ 709). In Parameswaran Pillai v. Gowrikutty Amma<\/p>\n
Ex.S.A.No.20\/2008<\/a><\/p>\n
                                          8<\/span><\/p>\n
(1984 KLT SN. No.111) description by fixed boundaries was preferred to<\/p>\n
description by area.\n<\/p>\n
       9.     I stated from Ext.A6, and it is not disputed by either side also that<\/p>\n
what is assigned to Usha as per Ext.A6 is the three (3) cents described by the<\/p>\n
side measurements mentioned therein and situated towards the eastern portion<\/p>\n
of the 7.610 cents. When Xavier gifted a portion of the property towards the<\/p>\n
western side of Antony as per Ext.A1, the remaining portion on the eastern side<\/p>\n
belonged to and was in the possession of Xavier. Hence the eastern boundary<\/p>\n
description in Ext.A1 is justified.  Then the question is whether the extent gifted<\/p>\n
is four (4) cents or it takes in the disputed 610 sq. links also. Going by Exts.A4<\/p>\n
and A4(a), the said 610 sq. links (marked as plot B in Ext.A4(a)) has a length of<\/p>\n
16.9 metres and width 1.05 metres (this is also not disputed by either side). It<\/p>\n
extends north-south. Xavier had no property on the north or south of the 7.610<\/p>\n
cents so that, he retained the 610 sq. links for his convenient user of such<\/p>\n
property on the north or south at the time of Exts.A1 and A6. Going by the<\/p>\n
boundary descriptions in Ext.A1, the disputed 610 sq. links cannot be said to<\/p>\n
have been excluded by that description though the extent stated is only four (4)<\/p>\n
cents. I stated that there was no necessity or occasion for Xavier to retain such<\/p>\n
a small strip of land with him for no use at all. One can understand if the dispute<\/p>\n
raised   was by the assignee of the eastern portion on the strength of Ext.A6.<\/p>\n
Yet another circumstance in favour of acceptance of the boundary descriptions<\/p>\n
over the extent stated in Ext.A1 is that indisputably and as Ext.A1 says, the<\/p>\n
entire building bearing door No.XV\/1359 was gifted to Antony and over which<\/p>\n
Ex.S.A.No.20\/2008<\/p>\n
                                          9<\/span><\/p>\n
Xavier retained a life interest. Exts.A4 and A4(a) would show that a small<\/p>\n
portion of the said building towards its eastern side also falls in the disputed 610<\/p>\n
sq. links and excluding that portion of the building, width of the disputed land on<\/p>\n
the east of the building is just 0.6 and 0.8 metres on either side (out of the total<\/p>\n
width of 1.05 metres of the 610 sq. links). When it is seen from Ext.A1 that the<\/p>\n
entire building is gifted to Antony, necessarily, the land occupied by and<\/p>\n
appurtenant the building also should go along with it, unless there is a contrary<\/p>\n
intention expressed by the donor that in the disputed 610 sq. links, only that<\/p>\n
portion of the building falling in it is gifted and Xavier retained title of the<\/p>\n
remaining portion of 610 sq. links. There is no such intention discernible from<\/p>\n
Ext.A1 expressly or impliedly. There is nothing to show that at the time of<\/p>\n
Ext.A1 a measurement was made and Xavier intended to give away by gift only<\/p>\n
the four (4) cents. I stated that the building as a whole is gifted as per Ext.A1.<\/p>\n
Necessarily the land appurtenant also should go with it.<\/p>\n
         10.   So far as the boundary description in Ext.A6 is concerned, the<\/p>\n
explanation given by respondent No.1 which is appealing is that it was so said<\/p>\n
as the gift as per Ext.A1 was in favour of the minor grandson represented by his<\/p>\n
father, the father was put in possession and Xavier, the grandfather reserved a<\/p>\n
life interest in the building. The western boundary description in Ext.A6 is not<\/p>\n
inconsistent with the contention of respondent No.1. Nor am I inclined to think,<\/p>\n
in the facts and circumstances of this case that a wrong mention in Ext.A2 as to<\/p>\n
the derivation of title over the disputed 610 sq. links in Ext.A2 would cut down<\/p>\n
title of the donee under Ext.A1 over the disputed portion and consequently the<\/p>\n
Ex.S.A.No.20\/2008<\/p>\n
                                         10<\/span><\/p>\n
title of respondent No.1 over that portion acquired as per Ext.A2.<\/p>\n
        11.   Learned counsel for appellant has a contention that the executing<\/p>\n
court has not conducted a proper enquiry into the matter. But there is no case or<\/p>\n
reason to think that any of the parties were denied opportunity to adduce<\/p>\n
evidence. Executing court though not in so many words has construed Ext.A1<\/p>\n
to hold that appellant’s claim over the disputed 610 sq. links cannot be<\/p>\n
sustained.\n<\/p>\n
        12.   On going through the evidence, facts and circumstances and on<\/p>\n
hearing counsel on both sides, I am unable to uphold the title claimed by the<\/p>\n
appellant over the disputed plot of land. In the facts and circumstances of the<\/p>\n
case the boundary description in Ext.A1 has to be preferred to the area stated<\/p>\n
therein and in consequence, the claim petition has to fail.       The substantial<\/p>\n
question of law framed is answered accordingly.\n<\/p>\n
        Resultantly, the Second Appeal fails. It is dismissed.\n<\/p>\n<\/p>\n
                                                THOMAS P.JOSEPH,
\n                                                         Judge.\n<\/p>\n
cks<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Treesa George vs Karmeli @ Baby on 3 December, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM Ex.SA.No. 20 of 2008() 1. TREESA GEORGE, W\/O.GEORGE, AGED 65, … Petitioner Vs 1. KARMELI @ BABY, D\/O.AUGUSTINE, AGED 54, … Respondent 2. T.M.ADIOQUE, S\/O.HASSAN, 3. AGNISA, W\/O.LATE XAVIER, D.NO.14\/1879, 4. K.X.JOSEPH, S\/O.LATE XAVIER, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-122607","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nTreesa George vs Karmeli @ Baby on 3 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/treesa-george-vs-karmeli-baby-on-3-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Treesa George vs Karmeli @ Baby on 3 December, 2009 - 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