OSWALD LAWRENCE JOHN SERRON Vs. ANTHONY D ABRAO

JUDGEMENT

(1.) THE Respondents have been served. But they are absent and none present for them. THE appeal pertains to the year 1988 and it has been mentioned in the hearing board as listed for final hearing. THErefore, this Court is hearing this appeal finally and deciding it in accordance with provisions of law.

(2.) SOME facts need to be stated for unfolding the controversy. The subject matter of the suit is house no. 18-B in H. Ward No. 1837 (1) situated at New Kantwadi, Bandra, Mumbai. The father of the petitioners named Ignatius DAbreo bequeathed the said house to his wife Mary for her life time and indicated that after her death it would go to one Daisy. Plaintiff No. 1 is the husband of one Ruby and Plaintiff No. 2 is her daughter and said Ruby is daughter of deceased Ignatius who executed the Will. Defendant No. 1 Anthony DAbreo is the younger brother of Daisy and Defendant No. 2 is his wife. Plaintiffs claim to be in possession of the suit property mentioned above.

(3.) THE respondents (original defendants) averred that the so called Will dated 17. 1. 1946 has not been probated and, therefore, the title did not pass to the appellants (original plaintiffs) and, therefore, they were not owners of the suit premises. In fact they denied the averment made by the appellants in respect of execution of the Will. THEy contended that they were joint owners of the said house as heirs of deceased Ignatius and contended that defendant no. 1 was residing in the suit house since his birth as a matter of right. THEy contended that they had a short stay at Vakola. However, they continued to stay in the suit house and were contributing towards the payment of municipal tax in respect of the suit house. THEy contended that false complaint was lodged in Bandra Police Station. THEy further averred that for the sake of convenience the suit premises were allowed to stand in the name of the original plaintiffs but taxes were paid by the defendants. THEy prayed that the said suit be dismissed.