Case Note & Summary
The appellant, Smt. V. Lalitha, was the plaintiff in a suit for declaration of title and permanent injunction in respect of a property bearing Sy. No.29/1 of Kacharakanahalli Village, Bengaluru. She claimed that her father, M. Venkatesh, was the original owner of the property and that she inherited it after his death through an unregistered Will dated 20.06.1983. The defendant, K.H. Puttaswamy Gowda, claimed title through a sale deed executed by the plaintiff's father in 1985 and also claimed adverse possession. The trial court partly decreed the suit, declaring the plaintiff's title but dismissing the suit for injunction on the ground that the plaintiff was not in possession. The plaintiff appealed against the dismissal of the injunction. The High Court framed issues regarding the validity of the Will, the defendant's title, and adverse possession. The court analyzed the evidence, including the testimony of the attesting witness (PW-2) and the defendant's failure to prove his sale deed or adverse possession. The court held that the plaintiff had proved her title through the Will and that the defendant had not acquired title by adverse possession. The court allowed the appeal, setting aside the trial court's judgment and decree, and decreed the suit for declaration and permanent injunction in favor of the plaintiff.
Headnote
A) Succession Law - Proof of Will - Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 - Unregistered Will - The court held that an unregistered Will can be proved by examining at least one attesting witness, and the propounder must prove that the Will was executed in accordance with law. In this case, the plaintiff examined one attesting witness (PW-2) who deposed about the execution of the Will by the testator, and the court accepted the Will as genuine. (Paras 10-15) B) Property Law - Declaration of Title - Plaintiff in Possession - The court held that a plaintiff who is in possession of the property can seek a declaration of title without seeking possession, as per Section 34 of the Specific Relief Act, 1963. The trial court erred in dismissing the suit on the ground that the plaintiff did not seek possession. (Paras 16-18) C) Property Law - Adverse Possession - Burden of Proof - The court held that the defendant claiming adverse possession must prove that his possession was hostile, open, continuous, and exclusive for the statutory period of 12 years. The defendant failed to produce any evidence to show that his possession was adverse to the plaintiff's title. (Paras 19-22)
Issue of Consideration
Whether the plaintiff has proved her title to the suit property through an unregistered Will and whether the defendant has acquired title by adverse possession.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the trial court dated 18.08.2018, and decreed the suit for declaration and permanent injunction in favor of the appellant/plaintiff.
Law Points
- Unregistered Will can be proved under Section 63 of the Indian Succession Act
- 1925 and Section 68 of the Indian Evidence Act
- 1872
- Plaintiff in possession can seek declaration of title without seeking possession
- Adverse possession requires clear and unequivocal evidence of hostile possession
- Burden of proof on party claiming adverse possession
