Case Note & Summary
The dispute concerns a property at Calangute known as 'Sullachi Nhat' with a house, originally owned by Joao Francisco Lobo and his wife Joanita Lobo. Joao Francisco Lobo died on 1.2.1998, and his wife predeceased him on 30.3.1979. The plaintiffs, Carlos Tavora and others, claimed title under a Will executed by Joao Francisco Lobo on 7.1.1997. The defendants, Maria Felicidade Fernandes e Lobo and others, are the widow and children of Savio Lobo, who died on 17.10.1984. The defendants claimed title by adverse possession. The trial court decreed the suit in favor of the plaintiffs, holding that the Will was proved and that the defendants failed to prove adverse possession. Both parties appealed. The High Court held that the Will was not proved as required by Section 63 of the Indian Succession Act, 1925, because only one attesting witness was examined and the other was not produced. However, the court also held that the defendants failed to prove adverse possession, as they did not establish ouster or hostile possession for the requisite period. The court allowed the plaintiffs' appeal in part, setting aside the trial court's decree and remanding the matter for fresh consideration on the issue of title, while confirming that the defendants did not acquire title by adverse possession.
Headnote
A) Property Law - Will - Validity - Burden of Proof - The plaintiff claiming title under a Will must prove its valid execution and attestation. The court held that the Will dated 7.1.1997 was not proved as required under Section 63 of the Indian Succession Act, 1925, as only one attesting witness was examined and the other was not produced. (Paras 10-12) B) Property Law - Adverse Possession - Co-ownership - Ouster - A co-owner claiming adverse possession must prove ouster or denial of title to the other co-owners. The court held that the defendants failed to prove ouster or that their possession was hostile to the plaintiffs' title. (Paras 13-15) C) Limitation - Adverse Possession - Period - The period of adverse possession is 12 years under Article 65 of the Limitation Act, 1963. The court found that the defendants' possession, even if exclusive, did not commence from a date prior to 12 years before the suit. (Paras 16-18)
Issue of Consideration
Whether the plaintiffs proved title by Will and whether the defendants acquired title by adverse possession
Final Decision
Both appeals allowed in part. The judgment and decree of the trial court are set aside. The matter is remanded to the trial court for fresh consideration on the issue of title based on the Will, after giving opportunity to the plaintiffs to prove the Will. The finding that the defendants failed to prove adverse possession is confirmed.
Law Points
- Will validity
- adverse possession
- burden of proof
- limitation
- co-ownership
- ouster
