Case Note & Summary
The dispute pertains to a property known as 'Sullachi Nhat' in Calangute, Goa. The plaintiffs claimed title through a Will executed by Joao Francisco Lobo in favour of plaintiff No.1 on 7.1.1997. The defendants, who were the widow and children of Savio Lobo (a predeceased son of Joao Francisco Lobo), claimed that they had acquired title by adverse possession. The trial court decreed the suit in favour of the plaintiffs, holding that the Will was valid and the defendants failed to prove adverse possession. Both parties appealed. The High Court upheld the trial court's findings on the Will's validity, noting that the execution and attestation were proved as required under Section 63 of the Indian Succession Act. On adverse possession, the court reiterated that a co-owner in possession cannot claim adverse possession without proving ouster or denial of title. The defendants' possession was permissive and not hostile. The court dismissed the defendants' appeal and allowed the plaintiffs' appeal regarding mesne profits, remanding the matter for determination of mesne profits from the date of suit. The judgment was delivered by a Division Bench of Justices A.P. Lavande and N.A. Britto.
Headnote
A) Will - Validity - Execution and Attestation - Section 63 of Indian Succession Act, 1925 - The court examined whether the Will dated 7.1.1997 executed by Joao Francisco Lobo in favour of plaintiff No.1 was validly executed and attested. The court found that the Will was proved by examining one attesting witness and the scribe, and the evidence was sufficient to prove due execution. (Paras 6-10) B) Adverse Possession - Co-owner - Ouster - Limitation Act, 1963, Article 65 - The court held that a co-owner in possession cannot claim adverse possession against another co-owner unless there is ouster or denial of title. The defendants failed to prove ouster or that their possession was hostile to the plaintiffs. (Paras 11-15) C) Burden of Proof - Adverse Possession - The burden is on the person claiming adverse possession to prove the date of ouster and that possession was open, continuous, and hostile. The defendants did not discharge this burden. (Paras 16-18)
Issue of Consideration
Whether the plaintiffs proved their title by Will and whether the defendants acquired title by adverse possession.
Final Decision
Both appeals dismissed except that the plaintiffs' appeal is allowed in part regarding mesne profits; matter remanded to trial court for determination of mesne profits from date of suit.
Law Points
- Will
- Adverse Possession
- Burden of Proof
- Co-owner
- Ouster
- Limitation
