John Wesly Mannual S/O M Mannuel Dead By ... vs M Vanajakshi D/O M Mannual on 27 September, 2010

[Cites 2, Cited by 0]

Karnataka High Court

John Wesly Mannual S/O M Mannuel Dead By ... vs M Vanajakshi D/O M Mannual on 27 September, 2010

Bench: S.N.Satyanarayana

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

 

V  ' "W V' 
DATED THIS 'I'1~£IE<3 52'? DAY OF 'f:°:L<¥'?€:W>f'5F2 20.1.0»-._ 

BEFORE

THE HON'BLE MRJUSTICE S.N.§ATYAN2hQAfYA;H;:A«.A  "

R.s.A.No.7o4/2,905..  L  " 
ISEYTXNEEZN '

1. JOHN WESLY MANNUAL V _ _ *-
S/O M MANNUEL DEAD 1-, LRS "_

W/O LATE JOHN WESLY M_Azj\'1N$AL;~.,_'1V ., 

67 YEARs,4(;H__R1s:_r1AN' V. 1: _   . 
R/O N0.€:9r3':J;VT.DI0R'FHI::RN EXTENSION
SERA (}u'~';'I"E, 'T_U.MKIJ_:1§ 'P(.)\?\fI\],.,.' V .

TUMKUR 1.01 . ¢ 

2. BB RATHNA  _  _
1:)'/_O I:3;:\{.s:3~nEQ(';\N1:3~A* -
45YEARS,-- ' j  
R/OQTH CROSS .. V'
S{§BHA'C-SP1' NAGAR

" MANDYA CITY 571401
  .,  ----------  ...APPELLAN'I'S

 (3.. :3AI;A{3ANGA1)HAR, ADV )

AN:)__ 

 .  _' ' .1. M VANAJAKSIMII

AA  D/() M MANNUAL
_ "MAJ()R, C1--iRIS']'£AN
" °I~~IEA[) MISTRESS
(}()VERNMENT MIIf)I)LE SCI»-10()1.



-3-

£\/1ANI.)YA C ITY, K. R. R( )AI)

R/() D.NO. 1668, K.R.ROAI),
CHRISTIAN C(')I.()NY, '
VII)!--'IA NAGAR, MANI')YA

.. . I{I§SI'?()NI) ﬁns"? ,  " ._

(By Sri M SE---11VA1:>PA, AIII)V'. 1.~'(_)R M.sI--£IvA;%:'§A'-..§z 

Alws)   _

TI"{IS RSA IS FILISD 1.1/s. 10o:"=0F1'_A_CdP'(: A{;A1Nsi

JUDC-EMI:CN'1" ea 1)£«:(:R1+:1:«: min. 1';2.2005 _P7ASS'EI)  IN
R..A.NO.207/2()04 ON T1 112: m1;1«::_ (~31: '.1'HI'%: ':)1sTI21c'*;_';5vU.1><;:a:,
MANDYA, ALLOWING TI41E APPEIAL ANI)".SPL'A1"I-INC; ASIDE
mien JUIDGEMEN1' AND Dr«:cRI+_:_1j:_:"Df_1~D, 22.8.2000 PASSED
I.N 0$ NO.56{)/1990 (3';a:.V_ '.1'H.E I4'ILj1€ OF Tr-1E"'PRL.cIv1L
JUDGE (.JR.DN.) &'JMF(i;\.M.AN~I)Y.{&;V " "  »

'I'I~-{IS APPEAL I-»1Av1N<;.13EEN '1~{EARI)"A'ND RESERVEI.)
FOR JUDGMENT" « THIS DAY,, 'Vin---19; '<~:0URT:'§)E1.IVERED THE
P'OI.LOWING:H     " 

Thié; p1éiirififf':s appeal challenging the

_is.1(igr1;éf1t, z1r;d"'{.i_{_-ﬁfee Vlpzissed in RA..N0.207/2004 dated

 ﬁle of iihe I')ist:rict Judge, 1\/Eandya, whérreira

Adi'he«.j:.1(}g§Vii:e;jt  decrc-.(:~. 1')asse(1 in ()S.N0.560/ 21.990 dated

22.8-..2()Q_0':>n--'tIne file of the I31-inc.s§pa.1 Civil Judge (JIZDII) &

 "J Mf1z'1(iya, decreeirlg the suit, of the plaintiff, was

 T ";1e'w3_r:§.e(E.

M



2. The appe11a.:'1ts I'1('I'(',iI'1 beirig plairitiffs in the trial
C()t.I.l'i' thr the sake of eonveriieriee the parties herein_._ are

re.t'ez-red to by their rank before the trial Court.

The, facts of this ease are that initiafly  ~

was filed by one John Wesly M'ar1r1u.al.. as 0rigi'11ai_i .pi'air'1.tii'§.v 

against his sister, respondent hereih:;"'i::«_--e' respect" of

scheclule property, which iS":'?i'~._.V.l'€Si&iﬂI'iﬁ&£ undisputed facts regarding [iarties is that original plaintiff is sori of one Manuellappa. Sa.i(iV_Man:ieII.a:i'1)pVa ir'i"'a.i1 sons and one daughter. I:3esi{c"iesf;,piaipritiffy§ViaiiueIIztppa=: had three sons, I18.i'I1€Iy,: and only daughter Van ajakstii; defexidéstrit in . Court.

3, Me;niiellt{'ppa had a brother by name '--.SaI1jeevz2:i--2th.~. Alt isH1'1'0'i:"'i'IV1 dispute that Manuellappa and his elcter"hi-Other'Ssnjeevaiah together acquired property bearing siteVNe.-41,.'prijié-:3;st1ri1':g 80x1. 1.'? '/2 (8021120) 'feet situated at iVVf§}.R.R0a(i,'«;_Chirist.ian Coiony, Mandya in their joint riame. f_'(+'.~riit'.i'setieciule property is half portion of the said property. The said property was aequ.ired by them on 3.2.1936 "*1 wan!"

vide documezit No.2S)/354-363. The property was acquired by them in exelrizmge of their oid ('.(}l.£I'1'i.I'y tiled house whicEi_ was t:;1ke1'i over by Mzirldya Town M11I.1iC.ipaiity for A' purpose. It is not in dispute that both Mariuellappa constructed two resideihtiaii Emiises' .iri_"r.heVs'a;id }I'0 }€I't in such a we that each one of thern woizldriet 5.096% 'V I I Y Y _ . . . 53 of property to their share i.e., 4();3.c.V1i--1:7 '/2. f4Qx{i2_"O) they were in possession and erzgoynierit' i

-4. It is the case of his paternal uncle Sanjeevz3ﬁiaii«._VvQ3ntt:_d half portion in the aforesaid4"pre1ie:"ty_, .3i};1s'v.:j0i.i1'tky acquireci by his father zihd ._Sarije+:'a';;_iah-' the piaintiff was gainfiiiiy empioyed étttliat iinie' of his personal resources he pu..1'ch;is'e.c}: the portion bVelor1g'i11g to his uncke Sanjeevaiah for 'V\i"Ei}.l'1.E:t'[)l(',;"t;t)E1%id§§1'ati0{1 of Rs. 1 ,5()O/ ~ under a sale deed dated i'1.iiS.,':€XC1LlSiVf§ use and enjoyment. Thereafter piaimiff }*re:si(1ing in the said house along with his « Vy.oAujnger-s.i'ste1', who is a spinster (defendant in this suit). T "S__t1bSE:§t'{l,1€I1i,ly he shifted his residence to Tuznkur, permitting % so sister to reside in the said house as a tenaxit on monthly "*1 rent: of Rs. .l 00/ -. Since he was e1'r1ploye('l in TL.1ii1k11r she C()l'lii£'}i.If'(.l to resicfe iii. the suit scE1e(.l1.1le property.

5. 'Subsequeritly, in the year 1990 piailiti£f:*1'<?(iA;i'es"t(%{i."": ' his sister to vacate suit scsliethile l1o_1.a.se_._ Si;i(:e'V'sii_§;.refaiseqrp ' to do so, he ﬁled a suit in OS.No.56O}?_'li9'QOion"theViif(:.._5if_:

Court: of Munsiff, Mandya, 'reliefs oi"V:v'rie{elasratior1,h possession and inesne proﬁts. of suit John Wesly Mannual on record as, plaintiff 1(a). Duririg theor-rfiirieriveysoftisviiitipiaintiff 1(a) sold the suit V"o-f"i&[?i.S.RathI1a, Who Came on 'No.-2 {m"'24.11.ii997. In the mea.i1while,._ (i€'f€V'1'i'..l'ai':i4t$ haidralready ﬁled written statement. Wherein, she set Vupclahiriilthat suit schedule property is V joint._.¢f'arriily property of John Wesly Manriual, herself and ljiothers, Wesly Marinuai being eldest, brother sp1.it.i'p1fo1;)ei'ty was-v"f)1i.rel1ase(i in his name out of joint family f1.ii1(l's__. :i'ii:f};re1y fact that plaintiff did not reside in suit it V;'ss.:x11e(iul(::vproperty and it is (ieferlclarit and her other brothers T "art-.:< --r_esi(lir1g thereirl. is pr()()f()f1,11e fact that suit. property is Tjoiiii. family property, jointly enjoyed by all of tliern. The 'W1 -5- plaintiff No.1 tried to set. up exclusive claim over suit schedule property with an zittexiipt to create r£:rlati0;1vsi"i,_i.f§'s.()f laiicllorti and t(3I'1&1r'1'(, bet',weer1 I5' plaintiff and «cit':fei1{l§trit._ll plaintiff having lost possession of suit} st:E1eciz_i.lr,:j)~ro1)eé;§ty_ for' more than 25 years and clefeiiclarii, £i}Z1(I her «iufotlfﬁrfersi being' lluifi possession of suit: schecluie pr0_pert3i'iiri'--their v"c:eipva€":it'y suit schedule property a(ive1'seiy"'bfs:iong to lih_lcfi1.."? no cause of actiori for "-the llyirésérit suit. Subsequent to amsndinezitl '.iigfritt:eri'_Vstatement was filed by ('l€'.f€I'l(:i«";.'I1Al'j:V 'ttiken by her in earlier writteri dgnying title of plaintiff Ha) and '2nd plaintiff as purcliassof safiief llitlﬂkh-llf) a Contention that at the instarice of ti'eceasevciv._plairitiif No.1 katha was jointiy made in the ._i::1";(li;IH§f2_V.(Jf:'.l'l€I7Séll'*8;Z71(l her remaining brothers, therefore, l*1s.liar.,1_ -title and interest in the said property. She also 1:501; of no.r1-- _j0ir.adcr of necessary paities i.e., her j l')r()t..iiers 'vex/K

6. Based on these rivai eonteritions. trial Court framed following issues for its COl"lSi('1('.I'€iU()I12

1) Vifhether the. [)Idifl'Uff prove that he is it the suit schednie property'?

2) Vifhether the piajntiﬁ" prove'!that'tits"t§1efe1':tiant..V:Lh'étg§_ii' agreed to pay nominajs rent cf R§~..10o/}".t,:(§":11e stiit V house'?

3) Whether the eo:ii~'t_ hasfiiecrtriiaryﬁjuriséietton?

4) Whetllez' the suit isIbar:ii"fo1?n0r1¥jo'intier of necessary

5) erttitied for possession of 6} is entitled for mesne proﬁt?

7) Wiiét.he'1'ths: [)i--2_1iﬂ~~tiiff is e11t1'tled to decree? .. *3) 5 WE:a.t 0.r(}VeI" decree?

.7 Ar.jltiit=i0x1a1 ._ the piaintiffs further prove that during the z ""V,')er1'd..Ven(:y of the suit, piajr1tiff--}[a) has sold the suit V " vvseheduie property to p1air1tiff~2 i.e., on 18.7.1995? R191 -8-

2) Whether p1ainti£T~2 is entitled to recover possession of suit schedule property from the defendant? 3} Whether the aiefendant proves that suit.§'«~seif;e:c_'1_i,tl:f:A' property is the joint family property ofVp1:a.£r1t;iAff"no. L]; defendant; and their other bgrtothders? - '

4) Whether the defendarlt 'proves that schedule property joir1t'---- and enjoyment of p'ia;ntif£Ae'rioA.'V1'; their other brothers? '' VA H _ . .

7. Thereafter; plaintift"1{a} addtteed evidence as PWs..i a;s1d*2,V"they*;.:got."wexa.rnir1edH two more witnesses as PWs.3 abd 4, I'r1ar};e"d, as_inahy_ as 14 documents, Exs.P1 to P14. The d[efer1d.a1rt.inesiiptiort of her case examined herself I)'?i[.} "a-.n(l g,o'i,"«ae2;_a_rn.§ned her brother as DW2 and an i»:rdepVe1:dent'.yifitr1ess as DW.3, got marked documents at 1i+:xs';1)Vt1 to {)_i1.{) 1: ' ' 'V "f§r1"a"rp;)reeiaUo1'1 of available oral and documentary .,evid:-:r1ceV'on record and after hearirlg the parties trial Court firoeetétieei to answer issues 1, 3, 5, 6, 7 and additionai "Wt issues 1 and 2 in the afﬁrmative and issues 2, 4 and add_iti(mal issues 3 and 4 in the negative. In effect, the__sL1it of plé-¥.iI1l.iff was decreed as prayed for and the c0n'te~ntio_ri l defendant regarding joint family status _walsagrejected." Additional issues no.1 and 2 were regarding right of 2"" plaintiff gowho p{1rcl1asedg.tli:s. 7p:op'¢;~ty< V from plaintiff 1(a) under sale deeid:fCla.ted her right to recover possession of and they are held in the deciding the additional trial declined the claim of defenldaritiAt'iia:;: property is joint family ;)rope1'ty"VofVdeeeasedﬂtariginai defendant and their other brothers in joint possession and enjoytnent of'~Vpl'aintiff AI'.?_o;'i"ilanci defendant and their other (.1efe.t1«:--la:at being aggrieved by same preferred an agaiiist the judgment and decree passed in <:)ss\i'oQ56o/"--ii9si') dated 22.8.2000. The said appeal in on the file of District; Judge, Mandya, was ..:ift:LAl<er1«;t.z[), notice was issued to plaintiffs lfa) and 2, who ' eni.erc(,l appearance.

"*1 -10-

9. In the said proceeding, after securing trial Court records 15' appellate Court proceeded to frame following points for its consideration-

1) Whether John Wesley has acquired'i;iU:ei~..oV'e:r it 'w plaint schedule property?

2) Whether defendant isihe joidritloivvnerie schedule property'? it V V C 'C V

3) Whether ~._vv:11 Hcanriot be enforced'? A C. it AA

4) Whether' has acquired

30. 'After IS' appellate Court has heldpppgthat. §)l2li.IV1JiH;l;V/i'JOhvi'i Wesley Manuel is not absolute V "schedule property, defendant is joint owner of Asuit-l'_sch'ed'ulVe 'property along with 13* plaintiff, is?» plaintiff _ being. Christian, his wife claiming title to suit schedule :";';::opertiz'vunder a Will cannot sell the same without getting _ lt§:p1e~»s2id Will probated. In the light of discussion made in the VA _j_u1dgment 15' appellate Court held that 2nd plaintiff has not """l -11- acquired any title to property and eonsequentky, judgment and decree of triai Court dated 22.8.2OQQa'._:""3.h OS.No.56()/ 1990 was set aside and the appeal of was aliowed holding that John Wesley 1\/iEar11;.e},_/L':1'*=*?Vv has equal share as that of deferidar;-it inthe property. The plaintiffs 1(a) and 2, who 21ppTe1§.a1p1ts"1vah(ii it 2 herein being aggrieved by jt1dgzrie11t.V.=a1'i"d- 'decree have come up in this appeal.

11. At the tirne of after hearing appeklants franied iji,t;Y_0L}1}t'OWi:I.:1,'_Z_'.Sl<1bS.tas3lfta1:dtt€StiOI1 of law and admitted this < gr" the 18'» appellate court in reyeririg jiitiéirilent and decree passed by the perverse and arbitrary for non , consideration of the material on record and « V'tr:i_srea_(.11"hg of the evidence'? I!.2'.".yIr1.dthis appeai, after substantial question of law "..fvvas*~fraIh'ed entire records of both the Courts bekow were sec1.:re(i, notice was issued to defendant. After securing 'W:

-12-

records and after defendant being represented by his Counsel, matter was taken up for final hearing this Court proceeds to answer tlie substantial qiiestionefjlaw V~l.i'.".E_"

the afﬁrmative for the following reasons: Admittedly original plaintiffglhi de:fAen{:lant'7A brothers are Christians. The COIlC€pt"0f'!j'-'.)iI1t is aiieii V to said community. The fact: thatii«thfere was in existence between plaiii'ti__ft l\io'.'l father Maniiellappa and his broétlierp 'admitted. The only relationsiiipilizit "them was joint ownership of :1 pro1::eif,ty which. residential site/ house b€<':lI'iI]g:ﬁl§l't')VV.V-4" (120) 'feet situated at K.R.Road,--. ..--~IVIa3:idya, as it was jointly allotted in their f'avoi'V--ir.A':_ V V It i.sA'not------«in dispute that by partition joint ownersphipizetween the brothers in respect of entire extent of la'nd"was diVi,d1ed and .§V1anu.ellaPDa was residing in one '.Vp0i"t'.i()uIi.. property along with his sons and daughter and ..:iSai'ijeevaiah was residing in another portion along with his "'AI711o1,i;_gh defericlant deny sale of suit schedule property utrvi

--».W,,\_ -

b Sarieevaiah in favour of ori >"i1'1::1l 15*» .)l.aint,if{, documents Y I I on record. more particularly, EXP}, which is sale (iced (iategi 4.2.1953 executed by Sarijeevaiah in favour of if?"[::'l.aiz1_t.iiE}.vA' whereiri the recital clearly discloses that of"

purchase of suit schedule property 0rigir.eai.p'lai:1tii"f. Wesly Mannual he was gaipnfnpliy he;-i1_1ployeci'.v*inJ.. Electricity Ofﬁce, sale deed was'V'Vi'e:.;:ecLitedl"iri he purchased it in his indivititlai sale" deed does not disclose that W for and on behalf of his other": :was intended to be utilised lenjoyment of himself and his brothers that was purchased by him untier: the is a property measuring

-41()x117__ 1/2 (120); it is~°aiso not in dispute that on that 'V'~.property;_.a .h011se"'measuring 20x25 feet :is constructed, whictrwaslearlyier. in possession of Sanjeevaiah and later on it..has'lc(>rr1e the possession and enjoyment of 1*" plaintiff. '.l'«'urtl1e1f, reveriue documents / assessment register extract ..fpro€iu;:ed at Ex.P2 clearly discloses the same. It is seen that

-- c1i'r1*ilr1l;_A__; the life time of plaintiff No.1 he executed a Will on '»v.«&,\ -14- 22.10.1993 bequeaiihing suit S(1h(-3C11,l1{3 property which is a site H1E}21S1,1I'ii'lg 40x'11'7 1/2 {120} feet with a house Vrt)u.iIt thereori ineasuring 20x25 feet. in favour of his in evidence, the wife of Plaintiff No.1 has EJrot1gE1t_:"On certain developments which had taiten ni4a<:Ve"'ti1,irii1§i.ne_y"i'ife_i' time of John Wesly Manuel i.e,; after is-uit'r--se11edu7ie: iprtopéjrtyi V was purchased by John Weslteyyitrmaniieti' his uncle Sanjeevaiah, a suit for declaration, possession I against 151 piaintiff and oth.e<:'s:V of property i.e. property { feet i.e.. portion which was her husband's brother Man11ella'pp'a<. written statement is ﬁled jointiyy by original. Vgiviairitiffsariti defendant along with their V' tifﬁtilers. Inx'th'e~~~said xwitten statement ali ﬁve of them ".«:1e;:ufiy-farfiiutzed that in the year 1936 suit schedule propes'f*t:y rneié.'t.ioi1ed in the said original suit 08.9/1979 syhpropetrty'rneasuring 80x11? 1/2{120} feet' was originally it "..:igraIitt:eti in. favour of Sanjeevaiah and Manueiiappa by City Municipality for having acquired their ancestral 'W:

country" tiled house for the purpose of expansion of town. the entire extent was in joint, possession of both the l:)roth§,:rs,_ who were divided in the year 1950 dividing the sui'€'t"sehed.tile.;__ _ property in 08.9/1979 into two portions ea--e1:».. the"

brother taking one share to their 1:?_espeetii='e4'--rsha.i"e.,"inzther.T f said written statement. p21r'ti<:uia_r1y aQt._prtragr:;p'l1tV.1:1; thefj have together admitted under V» "The (lefenda,nts;._'_sre .oim1ers of suit schedule inherited eastern h:alf__po1'i.ion" lst . p't1rehtt_sed"'*the"'Western half portion 'stile deed dated day they are in i1(_:on_tintioi.:s'V.giossession*of the same paying tax < The lst'-defentiant-V_in said OS.9/ 1979 is none other Wes1e§'~M--a:i1.a.ei Le... the plaintiff No.1 in this proe'e:edi'£1g;i ;'En:t.?te said suit, the defendant as well as other brothers oi'.v~4'i1'e4f-iantlant and plaintiff No.1 have all t.0gether '.Vae(:e1ii.(:(iV'"theit, eastern half portion is inherited by them from "..ft:,he.i.r'..fat.her Manuellappa and plaintiff No.1 has exclusively acquired western portion from Sanjeevaiah and the said '*1 -15- western portion is the subject matter of this litigation. This is the clear admission made by all the parties concernedfat an undisputed point of time as on 19.3.1_9'80',~f.fw{ien__' _ written statement was filed by them in Ietvjll' appellate Court while reasses:-sing:_,,the,» hi circumstances has not looked into alllthhelse factual and blindly guided by j)leaciings'Vi'so:fdefendant"aiiclllevidence led in by defendant wrov.ri:gly of joint family is in existence No.1, defendant and in joint family, original said-joint family acquired propertylvlof beneﬁt of himself and also his and other brothers. The said ﬁr_1ding4"%of' .1§';--. a;_)ple'llate court is totally baseless, ~.erron__elfo1,!j_s.AaI1ci perVei*s~c'conclusion with that it reversed the V' findin of trial» Court.

A when once it is accepted that there is

- 'no joint .fainily concept. cithcr defendant or other brothers of "}">_iz~.i..i_n.t':'i'A._F.'f No.1 claiming a share in the said property or trying toﬁsay that they are in joint, possession and enjoyment of Quux./K -17- same, does not arise. At the most, possession of defendant over suit schedule property could be termed as permis_siv_e possession and at any cost it cannot. be considered'as'jolnt possession and no right can be established by, suit"

schedule property. Therefore, prestirnption of '«a§)pGl§'2its3.. court in proceeding in this manner is pertrerse. IS' appellate Court has art)itrariiyi:p.roceetiet:1""'to-I the appeai without taking oivlidocurnents and pieadings which are in support of their case.

15. It is appellate court that sale cieeti e2<ecitit"e:.i'fhy~ p'l'ajr1'tifi' 1-ta} in favour of 2" plaintiff pursuant to.thevWiii_e2§ee1:iteciVby is plaintiff on 22.10.1993, is riot inzforce§' incorrect. Section 213 of the Indian Act~._as it existed on the date of execution of Will the right of iegatee to the effect that the V V' _ legatee iias toiobtairi probate of the said Will under which he . im: she c'iai.ms right from a competent Court and the same _ was»..a5r11aI1(l21tory requirement. However, subsequently in . .4 year 2002 by an amendnmnt the embargo put by Section wt ..18..

213 was removed. lilfaet. as on {the ('late when Will was exeeutecl by IS' plaintiff, lit.ig'at.io:'1 was already there. 4.£V)l1::.;l1~1g the penderiey of suit Will executed and thei_:'§ai'{??'1";~.."'l?'.___ _ plaintiff died. Subsequent to his death-,~"pi.il=suaht«.Atar bequeath made in her favour in the said zV\]i'l}., "plat-rif1'=ffV.ls,'_1 .« sold and conveyed suit S(:l1€d»lil.e. ;)reV;')e"1;t'3* in of plaintiff. 2nd plajI1t;ilT came eiiirtreerdl" 'xtzllieh not challenged by defer1clar1't:a"t,_t.he iivhen the suit. was decreed a plea that by defendant in regular a;);)eal;'E[¥s appeal was taken-up fti-'fl Vliﬁestfietion of condition irnposecviy wasulnet in force.

in support of this relied_1--.1pon tlie;viu(lg.i1"1e.r'1t Kezfala High Court in the matter "of Aehoi,"E3oIninie @"""Reenku & ()rs., ~Vs-- Xavier 8;. Dis, l:('1'f.IQ_I;t:(3'i:.Vl1.l'2'f3(3¢".l§.IHC 2210, wherein it is held as under- ' "'16. next substant.ial question arising in this xwhether the Will need to be probated in V A. terms of S213 of the Indian. Succession Act. An 'V_a;:11<:ndr11er1t has been made by the State '"v'"'l -19- begislatii1'e i1.1se1't.i.1'ig the words 'irldiazi Christian' after the word 'Muha:1'1ma(ian' in the said se(:tior!.p;""--.p By reason of that Indian Christians no longer i"i'aire, the liabiiity to apply to probate a Will in '7' the said section. Of Course this stati.1to._ry _ took place during the })t?I1deI£i(§j}"(1f p_ti.iis.; when the lower appeiiate Co11rt'1.ciee_i(1'e(1 the"ir1att:epy~p,,.,iiT A it ought to have been proVba_ted.V" law'a=.%i1va1he was to that effect. 'E3eca'iiseV'tof the" ~C_ha;1ge how effected the Indian." need"not'V: be probated. V'&'I"1ethc%'rV:~"tha--tp could be applied to pending Aap:pea1s__V ionger res integra. 'I1*1i's,.¥(L_'o11ri;'_as€ per reported in 2 Ker Land Tri13u.nai..V2:£5V:"Io'el(i ':§0IV1ly a prospective aiiletidmetit, ..__E3-.re11«.Vtfie_n that amendment can be appiiedto a oase~§)ieo__di'rig.--~iri appeal as well. Thispp Coort, held: as ivfoliiowsz to sue (See Mani iyer v.Azhakan.

V - I Ker 248 and the right of appeal Stat.e of Bombay v. S.G.Fiirns Exchange. :Ali1"v'il.9(3O SC 980) are vested rights. Even the it v.v__i'ight to a forum could be a vested right (See Garikapati v.Sz.1bbiah Chowdhry, AIR I957 SC

540). In my view, a right t.o relief if grounds are made out in support of ii at the trial, is vi -20- also an accrued or vested right, the said right having accrued to the litigant. on l1is ﬁlling tlhelrr suit. As ol')server'l by his ﬁling the sui.t.m observed by the Supreme Court, nor1riallyja»:.s:"' litigant is entitled to relief on .

approached the Court :v.l"orll"r'elief. -1' Rameshwar v. Jot Ram. flhe» it A bar to the grant of allrelief to'-hirriVasi'vthe: eerie enactecl in S.2i3(l_) of vth_el'Act car1n:ot.*li)e to be merely proceduerlal'. * the of relief to a p1airitii'f--{everigltoﬂaelleilenciant, if it comes tothat) a1c:ril_s1ichAaL be held to betinerely pi?oced:l..a'ral«.. of su.ch a bar]:'car1rioi«l_'be_considered to be * therefore, not possihle €.oV3ho1d{Vthat the Kerala Ainencfment is E'~merely-- .::1I1d hence retrospective ar1d_Vllconseqoer'1tl'v'l' must be applied to suits l V "iI3St.ltlx1't';',.._(V,l prior to the amendment." , ., ., _fl"n.e 'C()u_rtvf_urther held that:

is "Bl,11, SlI:liC.€':: the bar, as indicated by the Supreme '."'(:o1m.'1r'i I-{lem N01ini's case (AIR 1962 so 1471) _ zm(l.--tl1e other decisions referred to is only' to the V' V. _ grzirit of a decree, the plaintiff can take advantage of the prospective ameridment and request this court to grant her relic!" on the plea that the bar to V1 -21- relief does not any more subsist. The plaintiff would be entitled. to relief from this Court on tile strerlgth of the Will if she had proved the the present suit as required by law."

l4. Thus, the defendant l'ias~'in this c-_ase.pjrove(l the Will as held above, the f€ql£.if€3i1€~l'lt of_7~"

no longer stands in t,l'1(j.*%,K{ay. V"This stshstantiel question of law also is ansvvered in'feivo.ur_= ofithe appellant I'€VE3I"SiI1g. the Vii-n(.iing'--~..pAto that, epffect entered into by the lovfer e,pp;_ellat'elCo'urt."

17, Even other\vise';"ii1*the. correctness or otherwise ()f.'S'n33'€' execijited of 1*" plaintiff in favour of"e.aii.b'e qufestioned by other legal heirs of plaintiff "No.1 :i;e.l;.,_hiséfvdtlatlighters and son. As could be seen from records, 'o.neAoi"tljie son--in--law of plaintiff No.1 is a Witrlq-/A§:;;:.S irithis pro--cee__<_,l_ir.g as PW.3. He has given evidence in S-'\l:pf'(V')VI'[.,()f'1;l'i'%CEl_S€ of plaintiffs 1(a) and 2. Further there is by the only son of plaintiff No.1 giving up . his :4igm?,_ title and interest in suit schedule property in vefavoiii' "his mother. The sale deed executed by plaintiff 1(a) ii':_Vfé1vo1.1.r of 2"" plaintiff arlcl the Will executed by plaintiff if " "No.1 in favour of plaintiff Ha} which now Sought to be W1 -33- I)I'O('ltICt?d by appellants is not riecessary at this stage, for the reason, that sale deed not denied by defendant. V(_)n_'th.e ('.0I'll.I'?lI'y the correctness of executiori of sale deed'"iii.ffayo{,:r of 12"" plaintiff, is ehal1e1'1ged by defendant. being neither a legal heir of (leceasedud plz1int:iff v1_\i()--_i.,V_LrV1'cV):r having any subsisting right in, suit schedule ?;)t*.o.*r'§erty. 'she V has no right to challenge traiisaetionldloetween plaintiff 1(a) arid. 2nd plaixgtifl'. person who has right to challenge is the children of 1(a). Vlfhen they do not; this sale trarasaction, (1ei'e11(iar1t a to suit schedule property has no manner of or interest to challenge the correctness o1'V_otl1e:nvi'sed"of sale transaction entered into 'V V' «betvs§té~e11:_w:idosgv of 9'? piairititt' and third party. right that is available for defendant in thisjproceeclirieglis to show whether suit schedule property is

- 'joint 1)rope~rty of herself and plaintiff N0. 1 or whether she has V"--z«.'1_:ny_ 1'x4'i;'1.r'111er of right, title or interest/ share in respect of site I'1'1(}é1SE.1.riIi§§, 40x} l7 '/1; {E20} feet" and the house n'1eas1.ir'ir1g "*"'\ 20x25 feet constructed thereon wherein she was staying at the time of filing of the suit by plaintiff No.1 againstizer. Since defendant has miserably faiied to estabiish ~ V. she is co-owner or said property is joint properegit she has 3. share, it is not open fc;r""::e;~. 'thex"g correctness of the transaction between plaintiff.

19. In the I'€S'vL£'.!-,.t._...:" seoooid of olatntiifs is ailowed. The judgment p'é1ssee1 ls' appellate Court in judtgment and decree passed in ' 0§vS;'No.560/ 1990, is set aside. C:3zase<;'tm'§I1t't _]$l41(.§::§i'Y}.€l'l,f;. and decree passed in O.S.NO.56(}/_1*39OV'1s'eonfifxneti. The appellants are entitled for ofthis p'1'oeeetiiI1::_§s through out. 55/ '1 3116199 ' Nd/L" &

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