Karnataka High Court
Krishtappa vs Ananta Kalappa Jaratakhane And Another on 16 March, 2001
Equivalent citations: AIR2001KANT322, ILR2001KAR5239, AIR 2001 KARNATAKA 322, 2001 AIR - KANT. H. C. R. 1556, (2001) ILR (KANT) (2) 5239, (2001) 5 KANT LJ 130, (2002) 1 CIVLJ 586
Author: K.R. Prasad Rao
Bench: K.R. Prasad Rao
JUDGMENT
1. This appeal is filed by the appellant against the judgment in R.A. No. 47 of 1979, on the file of the Court of the First Additional District Judge. Dharwad, dated 25-3-1996 dismissing the appeal and confirming the judgment of the Court of Principal Civil Judge, Hubli, in O.S. No. 7 of 1971, dated 30-10-1979 dismissing the suit of the plaintiff.
2. The appellant/plaintiff filed the suit in the Trial Court for recovery of possession of plaint schedule house bearing C.T.S. No. 4344 situated at Toravigalli, Hubli, bounded on east by road, west by the house of Chalageri, north by the house of Basavaraj and south by backyard (Hit-talu) of Mugali Bellad and Sirasangi and for recovery of past mesne profits of Rs. 1,800/- and for further mesne profits from the date of filing the suit till the date of delivery of possession of the said house from the defendants at the rate of Rs. 75 per month alleging that the suit house was the ancestral property of his adoptive father Mahadevappa Gadag, who died in the year 1930 leaving behind him, his widow Bhagawwa and 2 daughters Subhadravva and Devakawa. Bhagawwa took him in adoption on 11-5-1953 at Muddebihal for perpetuating the line of her husband Mahadevappa. The said adoption is also evidenced by a registered adoption deed. Thus, the appellant became full and absolute owner of the suit property. The appellant being an employee, has been serving in different places. The adoptive mother of the appellant was in possession and enjoyment of the suit property with his permission. On the ill-advise of the persons ill-disposed towards him, Bhagawwa filed a suit L.C. No. 55 of 1957 on the file of the Court of Joint Civil Judge (Junior Division), Hubli, for declaration that the adoption of the appellant was not valid. That suit was dismissed on 7-4-1969 after trial and the said judgment of the Trial Court was confirmed in the First Appeal C.A. No. 198 of 1960, on the file of the Court of District Judge, Dharwar, and also in the Second Appeal R.S.A. No. 973 of 1969 by the judgment of this Court dated 18-2-1972. Smt, Bhagawwa died on 16-2-1962 and during her lifetime she was residing in the suit house as she had a right to reside in that house which belonged to her husband. Since her husband Mahadevappa died in the year 1930, she did not acquire any limited right in respect of the said house as widow under the provisions of Hindu Women's Rights to Property Act, 1937 state and she had only the right to reside in that house as the widow of Mahadevappa. It is the further case of the appellant that after the death of Bhagawwa on 16-2-1962, he became entitled to recover possession of the suit house which was in occupation of 1st defendant Kalappa Manneshappa Jaratakhane, who was the son-in-law of Bhagawwa and his 2 sons, who are the respondents herein. Defendant 1 died during the pendency of the appeal in the First Appellate Court. Since the defendants refused to deliver possession of the suit house, the appellant filed the suit in the Trial Court in the year 1971 for recovery of possession of the suit house and for past mesne profits of Rs. 1,800/- for a period of 3 years prior to the date of suit and for future mesne profits at the rate of Rs. 75/- per month from the date of filing the suit till delivery of possession.
3. Defendants contested the suit by filing their written statement contending that Bhagawwa acquired rights by adverse possession in respect of the suit house during her lifetime and after her death, the suit house has been in possession and enjoyment of all of them in their own right. Defendant 1 also became the owner of the suit house by "adverse possession". Further Smt. Bhagawwa executed a registered Will bequeathing the said property in favour of 1st defendant and thereby 1st defendant became the owner of the suit house after the death of Bhagawwa on 16-2-1962. They further contended that Smt. Bhagawwa asserted adverse rights in respect of the suit house from the date of filing the suit L.C. No. 55 of 1957, wherein she sought for a declaration that the appellant was not the adopted son and that she had not taken him on adoption. As the present suit was filed in the year 1971 long after the expiry of the period of 12 years from the date of filing the suit L.C. No. 55 of 1957, the defendants contended that they acquired rights by adverse possession in respect of the suit house and the suit is barred by limitation.
4. On the basis of the above pleadings between the parties, the Trial Court framed the issues and on appreciation of the evidence adduced by both parties came to the conclusion that the defendants have perfected their rights by adverse possession in respect of the suit house and dismissed the suit. The First Appellate Court concurred with the said find' ing recorded by the Trial Court and dismissed the appeal filed by the plaintiff. The Courts below have also recorded a concurrent finding that Bhagawwa became the absolute owner of the suit house during her lifetime by acquiring rights by adverse possession and that she executed a registered Will in favour of the 1st defendant bequeathing the suit house in his favour and that 1st defendant came in possession of the suit house in his own right as an absolute owner.
5. Earlier this appeal was disposed of on 14-7-1998 by another learned Single Judge of this Court allowing the appeal and setting aside the judgments and decrees of the Courts below. Against the judgment of this Court, respondents filed Civil Appeal No. 1 of 2000 in the Supreme Court and the said appeal has been allowed by the judgment dated 3-1-2000 and the matter has been remanded to this Court for fresh disposal in accordance with law and in the light of the limited jurisdiction available under Section 100 of the Civil Procedure Code.
6. Thereafter, this Court has formulated the following substantial questions of law for consideration in this appeal.-
"(1) Whether the concurrent finding recorded by the Courts below that late Bhagawwa became the absolute owner of the suit house, the coparcenary property, is sustainable in law having regard to the fact that the original owner Mahadevappa died in the year 1930 prior to the introduction of Hindu Women's Right to Property Act, 1937 and having regard to the fact that the appellant was taken in adoption by late Bhagawwa, widow of Mahadevappa on 11-5-1953, prior to the commencement of Hindu Succession Act, 1956?
(2) Whether late Bhagawwa had any bequeathable interest in the suit property and whether the Will executed by her confers any right, title or interest in favour of the respondent over the suit house?
(3) Whether the finding recorded by the Courts below that the respondents perfected their title to the suit property by adverse possession is sustainable in law, when the widow, late Bhagawwa, had a limited right to reside in the suit house during her lifetime as per the customary Hindu law prevailing at that time and when the suit was filed within 12 years from the date of the death of Smt. Bhagawwa?
7. I have heard the arguments advanced by the learned Counsel appearing for the appellant and the learned Counsel appearing for the respondents.
8. Sri G.S. Vishweshwara, learned Counsel appearing for the appellant, has vehemently contended that the Courts below failed to take note of the fact that Mahadevappa, the husband of late Bagawwa died in the year 1930 prior to the coming into force of Hindu Women's Right to Property Act, 1937 and she had only right of residence in the suit house, which is the ancestral family house, during her lifetime and that the appellant, who is the adopted son, became entitled to seek for recovery of possession of that house, only after the date of death of Bhagawwa, who died on 16-2-1962. He further contended that since the appellant filed the suit for recovery of possession of the suit house in the Trial Court in the year 1971 i.e., within 12 years from the date of death of deceased Bhagawwa, the concurrent finding recorded by the Courts below that Bhagawwa acquired rights by adverse possession in respect of the suit house and that the suit of the appellant is barred by limitation, is clearly erroneous. He further contended that since late Bhagawwa has taken the appellant in adoption in the year 1953, in the eye of law and by legal fiction, the adoption relates back to the date of death of his adoptive father late Mahadevappa in the year 1930 and that the appellant became entitled to succeed to suit property as if he were a natural born son and that he is entitled to take in defeasance of the rights acquired prior to his adoption by late Bhagawwa. He further contended that the appellant being the adopted son, had divested late Bhagawwa of the estate of his adoptive father and as such late Bagawwa did not acquire any right or title in the estate of her husband on the commencement of the Hindu Succession Act, 1956, even though she was in possession of the same and as such late Bhagawwa did not at all become the owner of the suit property. He further submitted that late Bhagawwa had no bequeathable interest in the said property and so the registered Will executed by her in favour of 1st defendant does not confer any right, title or interest in his favour in respect of that property.
9. In reply to these submissions, the learned Counsel for the respondents contended that since Mahadevappa died in the year 1930 and the appellant was born in the year 1933, he did not succeed to the suit property as the adopted son by virtue of his adoption in the year 1953 by late Bhagawwa and the said adoption does not divest the estate vested in late Bhagawwa, who inherited the suit property as the absolute owner as the legal heir to her husband, after the death of her husband in the year 1930. In other words, it is his contention that the doctrine of relation back cannot be applied in the present case so as to draw a legal inference that by virtue of the adoption of the appellant/plaintiff by late Bhagawwa in the year 1953, he divested estate vested in late Bhagawwa, as the legal heir of her husband, when the plaintiff was not in existence by the date of death of Mahadevappa in the year 1930 and when he was born subsequently in the year 1933. Alternatively, he contended that since late Bhagawwa challenged the adoption of the appellant by filing the suit L.C. No. 55 of 1957, it has to be taken that Bhagawwa had asserted her adverse rights in respect of the suit property during her lifetime from the year 1957 and since the present suit was filed in the year 1971 long after the expiry of the period of 12 years from the year 1957, the Courts below were justified in holding that late Bhagawwa acquired rights by adverse possession in respect of suit house and that the suit of the plaintiff is barred by limitation. It is finally submitted by him that the property tax register extract Ex. P. 8 pertaining to the suit house disclosed that Bhagawwa purchased site No. 4344/1 from one Avvappa for Rs. 215/- on 6-6-1934 which is the adjacent site to the suit house and the appellant is not entitled to the relief of possession in respect of the said vacant site which belonged to Bhagawwa and which has been bequeathed in favour of the 1st defendant under the registered Will executed by her.
10. I shall now consider the merits of the respective contentions urged by the learned Counsels appearing on both the sides with reference to the evidence placed on record and the law applicable to the facts of this case. It is an undisputed fact that the suit house is the ancestral property belonging to late Mahadevappa, husband of Bhagawwa, and that Mahadevappa died in the year 1930 leaving behind him, his widow Bhagawwa and his 2 daughters Subhadrawa and Devakawa. It is also an admitted fact that the appellant/plaintiff was taken in adoption by late Bhagawwa in the year 1953, which is evidenced by a registered adoption deed dated 11-5-1953 and the validity of the said adoption has been upheld in the suit L.C. No. 55 of 1957 filed by Bhagawwa and the said judgment and decree has been confirmed in Civil Appeal No. 198 of 1960, on the file of the Court of District Judge, Dharwar, by the judgment dated 28-2-1969 and the said judgment was confirmed in R.S.A. No. 973 of 1969 by the judgment dated 18-2-1972. Since Mahadevappa, adoptive father of respondent 1 died in the year 1930 leaving behind him, his widow Smt. Bhagawwa and his two daughters Subhadrawa and Devakawa they succeeded to the suit house as his legal heirs in the absence of a male issue. But soon after the appellant was taken in adoption by Smt. Bhagawwa for her husband on 11-5-1953, Bhagawwa and her daughters were divested of the estate (ancestral suit house) vested in them belonging to late Mahadevappa and he became the exclusive owner of the suit house. The learned Counsel for the appellant has relied upon a decision of the Supreme Court rendered in Krishnamurthi Vasudeorao Deshpande and Another v Dhruwaraj, wherein the above legal position has been explained as follows:
"Rights of adopted son with respect to property of adoptive father and collaterals -- Principles -- Death of last surviving coparcener leaving behind widow of his predeceased son and his own daughter -- Daughter succeeding to his property absolutely -- Subsequent adoption of son by widow -- Property vesting in daughter or persons claiming under her is divested by adoption".
According to the facts in that decision.-
"One B died in 1882 predeceasing his father N and leaving behind his widow T. N died in 1892 leaving behind K, his daughter who succeeded to his property as full owner. K died in 1933 and her son V who had succeeded to her property also died in 1934 leaving behind two sons, the appellants. T adopted D, the respondent in 1945. The respondent T thereupon brought a suit for recovery of the properties from the appellants on the basis that his adoption had the effect of divesting them of the properties.
Held that the respondent was entitled to succeed in the suit as his adoption had the effect of divesting the appellants of the property inherited from K. Though according to the Hindu Law prevailing in the area K had succeeded to the property of her father, N, as full owner, her title was defeasible on T, the widow of B, adopting a son to her husband. Similarly, the title of the appellants who were claiming under K was also defeasible on the adoption of a son by T. The fact that K inherited the property of her father absolutely did not change the character of the property from coparcenary property to self-acquired property of K so long as T the widow in the family existed and was capable of adopting a son who becomes a coparcener".
In para 5 of the above decision, the principles deducible from decision in Srinivas Krishnarao Kongo v Narayan Devji Kango and Others , with regard to rights of the adopted son with respect to the property of the adoptive father and of the coliaterats are summarised as follows:
"(i) An adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption on the ground that in the eye of law his adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son.
(ii) As a preferential heir, an adopted son (a) divests his mother of the estate of his adoptive father; (b) divests his adoptive mother of the estate she gets as an heir of her son who died after the death of her husband.
(iii) A coparcenary continues to subsist so long as there is in existence a widow of a coparcener capable of bringing a son into existence by adoption; and if the widow made an adoption, the rights of the adopted son are the same as if he had been in existence at the time when his adoptive father died and that his title as coparcener prevails as against the title of any person claiming as heir to the last coparcener.
(iv) The principle of relation back applies only when the claim made by the adopted son relates to the estate of his adoptive father. The estate may be definite and ascertained, as when he is the sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family in which the interest of the coparceners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. This principle of relation back cannot be applied when the claim made by the adopted son relates not to the estate of his adoptive father but to that of a collateral. With reference to the claim with respect to the estate of a collateral, the governing principle is that inheritance can never be in abeyance, and that once it devolves on a person who is tbe nearest heir under the law it is thereafter not liable to be divested. When succession to the properties of a person other than an adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested could not be divested.
(v) The estate continues to be the estate of the adoptive father in whosoever's hands it may be, that is, whether in the hands of one who is the absolute owner or one who is a limited owner. Anyone who inherits the estate of the adoptive father is his heir, irrespective of the inheritance having passed through a number of persons each being the heir of the previous owner".
In the instant case, since late Mahadevappa died in the year 1930 leaving behind him, his widow and 2 daughters without any male issue, the suit house inherited by Bhagawwa and her 2 daughters as L.Rs of her husband, has been divested from them by virtue of the adoption of the appellant by late Bhagawwa in the year 1953 and he became tbe absolute owner of the suit house with effect from the date of his adoption.
11. It is contended by the learned Counsel for the respondents that since the appellant was born in the year 1933 and was not alive by the date of death of Mahadevappa in the year 1930, the suit property which came to be vested in Smt. Bhagawwa, his widow and 2 daughters of Mahadevappa, does not get divested from them by virtue of his adoption by Bhagawwa in the year 1953. But, I am unable to accept this contention for the simple reason that an adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption on the ground that in the eye of law his adoption relates back by a legal fiction to the date of the death of his adoptive father, he being put in position of a posthumous son, as is clarified in the above decisions of the Supreme Court. As such the appellant must he deemed to have been in existence as the son of his adoptive father, at the time of the latter's death by virtue of the said legal fiction. Further, it is clarified by the learned Counsel for the appellant at this stage that after the date of adoption, the only right Smt. Bhagawwa as a widow of Mahadevappa had is a right of residence in the said house which is an ancestral family dwelling-house in which she lived with her husband, during her lifetime. This position is clarified in the 16th Edition of Mulla's Principles of Hindu Law at page 569 in para 573 and in Book of Hindu Law by the learned Author Raghavachar, 8th Edition, page 191 at paragraph 225, wherein it is observed.-
"Where a Hindu dies leaving a widow and an unmarried daughter, the widow for her life and the unmarried daughter till her marriage, Will be entitled to continue to reside in the family dwelling-house in which they have been residing with him during his lifetime, but this right arises only on his death".
It is next contended by the learned Counsel for the respondents that in spite of the adoption of the appellant by Smt. Bhagawwa in the year 1953, by virtue of the provisions of Section 3 of Hindu Women's Rights to Property Act, 1937, Bhagawwa became entitled as limited owner to half share in the suit house as a widow's estate and that after the Hindu Succession Act, 1956 came into force, by virtue of Section 14(1) she acquired full rights in respect of her half share in the suit house. But, I find no merits in this contention, since it is found that the suit property vested in Bhagawwa and her 2 daughters Subhadravva and Devakawa became divested of suit house in the year 1953 on account of the adoption of the appellant by Bhagawwa and Bhagawwa became entitled only to a right of residence in the said family house as per the customary Hindu Law prevailing at the time of death of her husband Ma-hadevappa, who died in the year 1930. It is, therefore, clear that Smt. Bhagawwa had not acquired any limited interest in respect of half share in the suit property under the provisions of Section 3 of Hindu Women's Right to Property Act, 1937. In fact, the said Act has no retrospective operation, as could be seen from the provisions of Section 4 of the said Act. Consequently, the question of Smt. Bhagawwa getting absolute rights in respect of half share in the said house under the provisions of Section 14(1) of the Hindu Succession Act, 1956 does not arise. Without going into all these aspects, the Courts below have proceeded to consider the question as to whether Smt. Bhagawwa acquired rights by adverse possession in respect of the suit house and became absolute owner of the said property. While considering this question, the Courts below have held that Smt. Bhagawwa declared her hostile intention and asserted adverse rights in respect of the suit property from the date of filing her suit L.C. No. 55 of 1957 challenging the validity of the adoption of the appellant and if the period of 12 years is counted from the date of filing the suit in the year 1957, she acquired rights by adverse possession in respect of the said house by 1969. The Courts below have, therefore, held that by the date of filing the present suit Smt. Bhagawwa acquired rights by adverse possession in respect of the said house and that by virtue of the registered Will Ex. D. 2 executed by her in favour of the original first respondent, he became the absolute owner of the said property. The Courts below have further held that late Bhagawwa was in possession of the suit house as the owner and that after her death on 16-2-1962, first respondent who continued in possession of the said house became the owner of the said house by virtue of the Will Ex. D. 2 executed in his favour by Smt. Bhagawwa. The Courts below have also held that the adverse possession of Bhagawwa will have to be tagged on to the adverse possession of respondents also and after a lapse of 12 years from 11-3-1957, the date on which Bhagawwa filed the suit L.C. No. 55 of 1957 the respondents became the owners of the suit property by adverse possession and the present suit filed by the plaintiff on 30-1-1971 after the expiry of 12 years period, is barred by limitation.
12. But while recording the said concurrent finding, the Courts below have presumed that Bhagawwa remained in possession of the suit property adverse to the interests of the appellant and in denial of his right to suit property from the date 11-3-1957, the date on which she filed the suit L.C. No. 57 of 1957. But as rightly pointed out by the learned Counsel for the appellant, in the suit L.C. No. 55 of 1957 Bhagawwa sought for a mere declaration that the appellant herein is not an adopted son and that she has never taken him in adoption. The issues raised in that suit also relate to adoption only. Even in the pleadings in the said suit, Bhagawwa never alleged that she is in possession and occupation of the suit house in her own right and in denial of the right of the present appellant, So, the question regarding the nature of her possession of the suit house did not arise at all in that suit. As such, the question of expressing her adverse animus against the appellant with regard to the suit house did not arise at all in that suit. The Courts below have overlooked the legal position that according to old Hindu Law applicable to her, Smt. Bhagawwa had a right of residence in the suit house during her lifetime consequent upon the death of her husband in the year 1930 and divesting of all her ownership rights in the 8uit property in the year 1953, soon after the appellant was taken in an adoption for her husband late Mahadevappa. The Courts below have overlooked the fact that the right to recover vacant possession of the suit house arose in favour of the appellant only after the death of Smt. Bhagawwa, who died on 16-2-1962 and the fact that he had no right to claim vacant possession of the suit house during the lifetime of Smt. Bhagawwa, as she was entitled to right of residence in the said house during her lifetime. I therefore, find that the Courts below erred in holding that Smt. Bhagawwa asserted and acquired rights by adverse possession in respect of the suit house during her lifetime itself and that she acquired bequeathable interest in the suit house by the date of the execution of the registered Will Ex. D. 2, dated 14-7-1960 in favour of the original 1st respondent. Since the present suit O.S. No. 7 of 1971 was filed on 30-1-1971 by the appellant within 12 years from the date of death of Smt. Bhagawwa, who died on 16-2-1962, it must be held that the suit is within time. I, therefore, find that the Courts below have erred in holding that the suit is barred by limitation and that Smt. Bhagawwa had acquired rights by adverse possession in respect of the suit house by the date of her death and that the respondents continued to be in possession of the suit house in their own right and are not trespassers in respect of the suit house. Since the concurrent finding recorded by the Courts below on the question of adverse possession, is not based on proper appreciation of the evidence placed on record and the correct legal position applicable to the facts of the case, I find that the said finding cannot be sustainable and the same is liable to be set aside.
13. For the above reasons, I answer points 1 and 3 in the negative.
14. It is pointed out by the learned Counsel for the respondents that in the plaint, the appellant has given the description of the suit house as one bearing CTS No. 4344 situated at Toravigalli, Hubli, bounded on east by road, west by the house of Chalageri, north by the house of Basavaraj Thalikote and south by Hittalu of Mugali Bellad and Sirasangi and no measurements are given in respect of the said property. It is further pointed by him that the said property described in the plaint includes adjacent site purchased by Smt. Bhagawwa from Av-vappa for Rs. 215/- and this fact is admitted by the appellant/plaintiff in para 6 of his deposition. It is also pointed out by him that the extract of the property register card produced and marked as Ex. P. 8 and the entry in the record of rights clearly disclose that the adjacent site bearing No. 4344/1 was purchased by Smt. Bhagawwa on 6-6-1934. Since the above said adjacent site bearing No. 4344/1 was the self-acquired property of Smt. Bhagawwa he contended that by virtue of the Will, Ex. D. 2 executed by Smt. Bhagawwa in favour of the 1st defendant, he became the owner of the said adjacent site and in respect of the said adjacent site, the appellant is not entitled for the relief of recovery of possession. On a perusal of the deposition of the plaintiff, it is found that he has clearly admitted that the suit property includes adjacent vacant site purchased by Smt. Bhagawwa and that the said site is also included in the description of the suit property given in the plaint. It is also disclosed from the property register card extract, Ex. P. 8 produced by the plaintiff himself that the adjacent site bearing No. 4344/1 was purchased by Smt. Bhagawwa on 6-6-1934 from one Awappa for Rs. 215/-. The learned Counsel for the respondents submitted that in the adjacent site Smt. Bhagawwa had put up construction by way of extension of ancestral house and the said extended portion of the property in the site bearing No. 4344/1 is to be excluded while granting a decree for recovery of possession of the suit ancestral house in favour of the appellant. I agree with the above contention of the learned Counsel for the respondents and I find that the appellant is not entitled to a decree for recovery of possession in respect of the property bearing No. 4344/1 and the construction put up on that site. Since the Courts below have recorded a concurrent finding holding that the Will, Ex. D. 2 has been executed by Smt. Bhagawwa in favour of the original 1st defendant in a sound disposing state of mind and that the said Will is a genuine Will and since the said concurrent finding has been recorded by the Courts below on a question of fact, this Court is not entitled to interfere with the said finding. Further, no serious challenge has been made by the learned Counsel for the appellant in respect of the said concurrent finding recorded by the Courts below, I, therefore, find that the 1st defendant became the owner of the site bearing No. 4344/1, which is an adjacent site to the suit ancestral house and the construction put up on that site by Smt. Bhagawwa, by virtue of the Will, Ex. D. 2 executed on 14-7-1960 in his favour by Smt. Bhagawwa. The present respondents, who are the sons and legal representatives of the original first defendant Kalappa Manneshappa Jai Atakhane became entitled to the said adjacent property, after the death of Kalappa.
15. For all the above reasons, I answer Point No. 2 that late Bhagawwa had bequeathable interests only in respect of the adjacent site bearing No. 4344/1 and the construction put up on the site and the Will executed by her confers right, title and interest in respect of the said property in favour of the respondents and I further find that in respect of the suit ancestral house bearing No. 4344 excluding the said adjacent site and the construction put up on that adjacent site by late Bhagawwa, she had no bequeathable interest and the Will executed by her does not confer any right, title or interest in favour of the respondents in respect of the same.
16. In the result, this appeal is allowed in part setting aside the judgments of the Courts below and the suit is decreed in part for recovery of possession of the "suit ancestral house" bearing No. 4344 excluding the adjacent site beating No. 4344/1 and the construction put up on that site, by ejecting the respondents/defendants therefrom and for recovery of past mesne profits of Rs. 900A for a period of 3 years prior to the date of filing the suit. The appellant is also entitled to future mesne profits in respect of the suit house from the date of filing the suit till the date of recovery of possession which will be determined on a separate application to be filed by the appellant in the Trial Court. The suit is dismissed, insofar as it relates to the claim for adjacent site bearing No. 4344/1 and the construction put up thereon which is also included in the suit property.
In the circumstances of the case, I direct the parties to bear their respective costs.