SREEDHARA PAI Vs. DAMODARA NAIKEN SRVA NAIKEN

JUDGEMENT

(1.) These Civil Miscellaneous Appeals arise from two suits, O.S. Nos. 1096 of 1971 and 363 of 1972 on the file of the Additional Munsiff of Shertallay. The facts of the case in O.S. No. 363 of 1972, which is the main suit, are as follows: The suit relates to 64 cents of property in Survey Number 236/54 B.C. of Shertallai North village. Item 2 is a building situated in item 1. The suit is for declaration of the plaintiffs' title and for recovery. The property originally belonged to one Saraswathy Bai. She was the grandmother of the plaintiffs through her daughter, Saradha Bai. Saraswathi Bai died on 16th July 1971. The first defendant is the son of the sister of Saraswathi Bai. Defendants 2 to 4 and 7 are the children of deceased son of Saraswathi Bai. According to the plaintiffs the share of defendants 2 to 4 and 7 in the assets of Saraswathi Bai were given to them during her life time and hence they have no right in the suit property. The plaintiffs came to know that the first defendant was attempting to meddle with the suit property on the strength of a settlement deed alleged to have been executed by Saraswathi Bai in his favour on 21st May 1966. The plaintiffs' case is that Saraswathi Bai has not signed the said document, that she was partially blind and mentally incapacitated due to old age and that she could not have gone to the Sub Registrar's Office for execution of the said document. Apprehending that the first defendant would alienate the property, publications were taken out in some dailies alerting the public that the first defendant had no right over the property. Since the first defendant persisted on his right on the strength of the aforesaid document, the suit had to be filed for a declaration for the plaintiffs' right and for recovery.

(2.) The first defendant's case is that the document is validly executed, that he had been looking after Saraswathi Bai after her retirement, that she had gone to the Sub Registrar's Office for registering the document, that Saraswathi Bai had to file O.S. No. 631 of 1965 against the trespass by defendants 2 to 4, which ultimately was compromised, and that the suit was not maintainable. Defendants 2 to 4 and 7 filed a written statement disputing the averments in the plaint that they had no right over the property and asserting their right also in the property as the grandchildren of Saraswathi Bai through her son and putting forward the case supporting the plaintiff regarding the invalidity of the document.

(3.) O.S. No. 1096 of 1971 is filed by defendants 2 to 4, 6 and 7 in O.S. No. 363 of 1972. The first defendant is the same. The suit relates to the same property and the relief claimed also is the same as in the other suit.