MALLAIAH Vs. T N BASAVARAJU

JUDGEMENT

(1.) This appeal is filed by the defendant in the suit. The suit was filed seeking a declaration that the will dated 21-12-1990 executed by one Mallamma, as her last will and testament and consequently to declare the plaintiff as the owner of the suit schedule property. There was also a prayer for recovery of arrears of rent from a tenant, defendant no.2 who was said to be in occupation of the property.

(2.) The facts of the case are as follows : The suit schedule property originally belonged to one Basamma and was purchased from her by Mallamma, who was the sister of the grandmother of Plaintiff no. 1, Basavaraju. The property was said to have been purchased under a registered sale deed dated 27-2-1939. A property adjacent to the suit property was also acquired by Malamma under a Sale certificate issued by the Town Municipal Council, Hassan, dated 18-10-1945. A part of this composite area was sold by Mallamma in favour of one Shantamma under a Sale deed dated 29-6-1972. In the remaining area there was a dwelling unit consisting of three tenements. Mallamma was residing in the eastern portion and she had let out the remaining portions to the defendants. The first defendant was residing in the middle portion and the second defendant was residing in the western portion. The first defendant, who was a head constable was paying a rent of Rs.205 in the year 1989. It transpires that Mallamma was aged and she had requested the plaintiff who was living in Somvarapete, to reside with her to take care of her. The plaintiff had gone to visit his son in Somvarapete for about three months in the year 1990. During this time Mallamma is said to have met with a motor accident. It is alleged by the plaintiffs that it is at this point of time that the first defendant had taken advantage of Mallamm's illiteracy and making her believe that he was taking steps to lay a claim for compensation in respect of injuries suffered by her in the accident, had obtained her signature on various documents and had even managed to obtain a concocted will executed by Mallamma in his favour. The very circumstance is unusual as the first defendant was a stranger to Mallamma before the year 1989. Mallamma fell ill during November 1990 and was admitted to hospital in Somavarapete as the first plaintiff could not stay in Hassan during that time. It was during this period that Mallamma had expressed a desire to bequeath her properties to the first plaintiff and had got the will drafted with the assistance of an advocate , in this regard. She had died thereafter on 28-3-1991. The plaintiff is said to have intimated the death of Mallamma to the first defendant by telegram on 28-3-1991. The first defendant had obtained a death certificate of Mallamma at Hassan, on a misrepresentation that she had died at Hassan and also proceeded to obtain the change of Khatha in respect of the property on the strength of a registered will said to have been executed by Mallamma as on 19-9-1990 in his favour. The first plaintiff on coming to Hassan found that the first defendant had broken open the lock on Mallamma's house and had occupied it by putting his own lock on the same. The first plaintiff with the help of the neighbourers had broken open the lock and had entered the house to find that the first defendant had removed all of Mallamma's movable properties. The first defendant had in turn attempted to have the second plaintiff and her son detained in police custody on false allegations. It is with the help of neighbourers who had vouched for the relationship of the plaintiffs with Mallamma that they were able to resist further harassment by the police.

(3.) Whether plaintiffs are entitled for rent as prayed for