Judgment This is plaintiff’s second appeal challenging the judgment and decree passed in RA.No.207/2004 dated 1.2.2005 on the file of the District Judge, Mandya, wherein the judgment and decree passed in OS.No.560/1990 dated 22.8.2000 on the file of the Principal Civil Judge (Jr.Dn) & JMFC, Mandya, decreeing the suit of the plaintiff, was reversed. 2. The appellants herein being plaintiffs in the trial Court for the sake of convenience the parties herein are referred to by their rank before the trial Court. The facts of this case are tat initially OS.560/1990 was filed by one John Wesly Mannual, as original plaintiff against his sister, respondent herein in respect of suit schedule property, which is a residential house. The undisputed facts regarding relationship between parties is that original plaintiff John Wesly Mnanual is son of one Manuellappa. Said Manuellappa had in all four sons and one daughter. Besides plaintiff Manuellappa had three sons, namely, David, Sundaram, Ravikanth and only daughter Vanajakshi, defendant in trial Court. 3. Said Manuellappa had a brother by name Sanjeevaiah. It is not in dispute that Manuellappa and his elder brother Sanjeevaiah together acquired property bearing site No.4, measuring 80x117 1/2 (80x120) feet situated at K.R.Road, Christian Colony, Mandya in their joint name. Suit schedule property is half portion of the said property. The said property was acquired by them on 3.2.1936 vide document No.29/35-36. The property was acquired by them in exchange of their old country tiled house which was taken over by Mandya Town Municipality for development purpose. It is not in dispute that both Sanjeevaiah and Manuellappa constructed two residential houses in the said property in such a way that each one of them would get 50% of property to their share i.e., 40x117 1/2 (40x120) feet, they were in possession and enjoyment of same. 4. It is the case of plaintiff that in 1953 his paternal uncle Sanjeevaiah wanted to dispose of his half portion in the aforesaid property, which was jointly acquired by his father and Sanjeevaiah. Since the plaintiff was gainfully employed at that time from out of his personal resources he purchased the portion belonging to his uncle Sanjeevaiah for valuable consideration of Rs.1,500/- under a sale deed dated 4.2.1953 for his exclusive use and enjoyment. Thereafter plaintiff was residing in the said house along with his younger sister, who is a spinster (defendant in this suit). Thereafter plaintiff was residing in the said house along with his younger sister, who is a spinster (defendant in this suit). Subsequently he shifted his residence to Tumkur, permitting his sister to reside in the said house as a tenant on monthly rent of Rs.100/-. Since he was employed in Tamkur she continued to reside in the suit schedule property. 5. ‘Subsequently, in the year 1990 plaintiff requested his sister to vacate suit schedule house. Since she refused to do so, he filed a suit in OS.No.560/1990 on the file of Court of Munsiff, Mandya, for the relief of declaration, possession and mesne profits. Subsequent to filling of suit John Wesly Mannual died, his wife came on record as, plaintiff 1(a). During the pendency of suit plaintiff 1(a) sold the suit schedule property in favour of B.S.Rathna, who came on record as plaintiff No.2 on 24.11.1997. In the meanwhile, defendant had already filed written statement. Wherein, she set up a claim that suit schedule property is joint family property of John Wesly Mannual, herself and their other brothers, Wesly Mannual being eldest brother suit property was purchased in his name out of joint family funds. The very fact that plaintiff did not reside in suit schedule property and it is defendant and her other brothers are residing therein, is proof of the fact that suit property is joint family property, jointly enjoyed by all of them. The plaintiff No.1 tried to set up exclusive claim over suit schedule property with an attempt to create relationship of landlord and tenant between 1st plaintiff and defendant, plaintiff having lost possession of suit schedule property for more than 25 years and defendant and her brothers being in possession of suit schedule property in their own capacity suit schedule property adversely belong to them. There is no cause of action for plaintiff to file the present suit. Subsequent to amendment, additional written statement was filed by defendant reiterating the stand taken by her in earlier written statement and further denying title of plaintiff 1(a) as legal heir of plaintiff No.1 and 2nd plaintiff as purchase of same. She also took-up a contention that at the instance of deceased plaintiff No.1 katha was jointly made in the name of herself and her remaining brothers, therefore, he had no right, title and interest in the said property. She also took-up a contention that at the instance of deceased plaintiff No.1 katha was jointly made in the name of herself and her remaining brothers, therefore, he had no right, title and interest in the said property. She also took a plea of non-joinder of necessary parties i.e., her brothers. 6. Based on these rival contentions, trial Court framed following issues for its consideration: 1) Whether the plaintiff prove that he is the owner of the suit schedule property? 2) Whether the plaintiff prove that the defendant had agreed to pay nominal rent of Rs.100/- to the suit house? 3) Whether the court has pecuniary jurisdiction? 4) Whether the suit is bad for non-joinder of necessary parties? 5) Whether the plaintiff is entitled for possession of the suit property? 6) Whether the plaintiff is entitled for mesne profit? 7) Whether the plaintiff is entitled to decree? 8) What order or decree? Additional issues: 1) Whether the plaintiffs further prove that during the pendency of the suit, plaintiff-1(a) has sold the suit schedule property to plaintiff-2 i.e., on 18.7.1995? 2) Whether plaintiff-2 is entitled to recover possession of suit schedule property from the defendant? 3) Whether the defendant proves that suit schedule property is the joint family property of plaintiff no.1, defendant and their other brothers? 4) Whether the defendant further proves that suit schedule property is in joint possession and enjoyment of plaintiff no.1, defendant and their other brothers? 7. Thereafter, plaintiff 1(a) and 2 adduced evidence as PWs.1 and 2, they got examined two more witnesses as PWs.3 and 4, marked as many as 14 documents, Exs.P1 to P14. The defendant in support of her case examined herself as DW.1 and got examined her brother as DW.2 and an independent witness as DW.3, got marked documents at Exs.D1 to D101. 8. On appreciation of available oral and documentary evidence on record and after hearing the parties trial Court proceeded to answer issues 1, 3, 5, 6, 7 and additional issues 1 and 2 in the affirmative and issues 2, 4 and additional issues 3 and 4 in the negative. In effect, the suit of plaintiff was decreed as prayed for and the contention of defendant regarding joint family status was rejected. In effect, the suit of plaintiff was decreed as prayed for and the contention of defendant regarding joint family status was rejected. Additional issues no.1 and 2 were specifically framed regarding right of 2nd plaintiff who purchased the property from plaintiff 1(a) under sale deed dated 18.7.1995 and her right to recover possession of property from defendant and they are held in the affirmative. While deciding the additional issues the trial Court specifically declined the claim of defendant that suit schedule property is joint family property of deceased original plaintiff, defendant and their other brothers and said property was in joint possession and enjoyment of plaintiff No.1 and defendant and their other brothers. The defendant being aggrieved by same preferred an appeal against the judgment and decree passed in OS.No.560/1990 dated 22.8.2000. The said appeal in RA.No.84/2000 on the file of District Judge, Mandya, was taken-up, notice was issued to plaintiffs 1(a) and 2, who entered appearance. 9. In the said proceeding, after securing trial Court records 1st appellate Court proceeded to frame following points for its consideration:- 1) Whether John Wesley has acquired title over the plaint schedule property? 2) Whether defendant is the joint owner of the plaint schedule property? 3) Whether without probate the Will cannot be enforced? 4) Whether the purchased/plaintiff no.2 has acquired title to the property? 5) What order? 10. After hearing the parties 1st appellate Court has held that plaintiff/John Wesley Manuel is not absolute owner of suit schedule property, defendant is joint owner of suit schedule property along with 1st plaintiff, 1st plaintiff being Christian, his wife claiming title to suit schedule property under a Will cannot sell the same without getting the said Will probated. In the light of discussion made in the judgment 1st appellate Court held that 2nd plaintiff has not acquired any title to property and consequently, judgment and decree of trial Court dated 22.8.2000 in OS.No.560/1990 was set aside and the appeal of defendant was allowed holding that John Wesley Manuel/1st plaintiff has equal share as that of defendant in the plaint schedule property. The plaintiffs 1(a) and 2 who are appellants 1 and 2 herein being aggrieved by the said judgment and decree have come up in this appeal. 11. At the time of admission, this Court after hearing appellants framed following substantial question of law and admitted this appeal. The plaintiffs 1(a) and 2 who are appellants 1 and 2 herein being aggrieved by the said judgment and decree have come up in this appeal. 11. At the time of admission, this Court after hearing appellants framed following substantial question of law and admitted this appeal. 1) Whether the finding of the 1st appellate court in revering the judgment and decree passed by the trial Court is perverse and arbitrary for non consideration of the material on record and misreading of the evidence? 12. In this appeal, after substantial question of law was framed entire records of both the Courts below were secured, notice was issued to defendant. After securing records and after defendant being represented by his Counsel, matter was taken up for final hearing and this Court proceeds to answer the substantial question of law in the affirmative for the following reasons: Admittedly original plaintiff, defendant and their brothers are Christians. The concept of joint family is alien to said community. The fact that there was no joint family in existence between plaintiff No.1 and defendant’s father Manuellappa and his brother Sanjeevaiah is admitted. The only relationship that was there between them was joint ownership of a property which was a residential site/house bearing No.4 measuring 80x117 1/2 (120) feet situated at K.R.Road, Christian colony, Mandya, as it was jointly allotted in their favour. 13. It is not in dispute that by partition joint ownership between the brothers in respect of entire extent of land was divided and Manuellappa was residing in one portion of property along with his sons and daughter and Sanjeevaiah was residing in another portion along with his wife. Though defendant deny sale of suit schedule property by Sanjeevaiah in favour of original 1st plaintiff, documents on record, more particularly, Ex.P1, which is sale deed dated 4.2.1953 executed by Sanjeevaiah in favour of 1st plaintiff, wherein the recital clearly discloses that as on the date of purchase of suit schedule property by original plaintiff John Wesly Mannual he was gainfully employed in Mandya Electricity Office, sale deed was executed in his favour, he purchased it in his individual capacity. The sale deed does not disclose that 1st plaintiff acquired property for and on behalf of his other brothers and sister and it was intended to be utilised for joint possession and enjoyment of himself and his brothers and sister. The sale deed does not disclose that 1st plaintiff acquired property for and on behalf of his other brothers and sister and it was intended to be utilised for joint possession and enjoyment of himself and his brothers and sister. The property that was purchased by him under the said dale deed is a property measuring 40x117 1/2 feet (120). It is also in dispute that on that property a house measuring 20x25 feet is constructed, which was earlier in possession of Sanjeevaiah and later on it has come to the possession and enjoyment of 1st plaintiff. Further, revenue documents/ assessment register extract produced at Ex.P2 clearly discloses the same. It is seen that during the life time of plaintiff No.1 he executed a Will on 22.10.1993 bequeathing suit schedule property which is a site measuring 40x117 1/2 (120) feet with a house built thereon measuring 20x25 feet in favour of his wife. In evidence, the wife of Plaintiff No.1 has brought on record certain developments which had taken place during the life time of John Wesly Manuel i.e., after suit schedule property was purchased by John Wesley Manuel from his uncle Sanjeevaiah, Sanjeevaiah’s wife Shiromaniamma filed a suit for declaration, possession and mesne profits against 1st plaintiff and others in respect of entire extent of property i.e, property measuring 80x117 1/2 (120) feet i.e., portion which was owned by her husband as well as her husband’s brother Manuellappa. In the said suit, written statement is filed jointly by original plaintiff and defendant along with their other brothers. In the said written statement all five of them have clearly admitted that in the year 1936 suit schedule property mentioned in the said original suit OS.9/1979 i.e., property measuring 80x117 1/2 (120) feet was originally granted in favour of Sanjeevaiah and Manuellappa by Mandya City Municipality for having acquired their ancestral country tiled house for the purpose of expansion of town, the entire extent was in joint possession of both the brothers, who were divided in the year 1950 dividing the suit schedule property in OS.9/1979 into two portions each one of the brother taking one share to their respective share. In the said written statement, particularly at paragraph 11, they have together admitted as under “The defendants are absolute owners of the suit schedule property having inherited eastern half portion from their father and 1st defendant having purchased the western half portion under the registered sale deed dated 4.2.1953 and from that day they are in continuous possession of the same paying tax to the municipality.” The 1st defendant in the said OS.9/1979 is none other than John Wesley Manuel i.e., the plaintiff No.1 in this proceeding. In the said suit, the defendant as well as other brothers of defendant and plaintiff No.1 have all together accepted that eastern half portion is inherited by them from their father Manuellappa and plaintiff No.1 has exclusively acquired western portion from Sanjeevaiah and the said western portion is the subject matter of this litigation. This is the clear admission made by all the parties concerned at an undisputed point of time i.e., as on 19.3.1980, when written statement was filed by them in OS.No.9/1979. 1st appellate Court while reassessing the facts and circumstances has not looked into all these factual positions and blindly guided by pleadings of defendant and evidence led in by defendant wrongly presuming that concept of joint family is in existence among Christians plaintiff No.1, defendant and their other brothers are living in joint family, original plaintiff No.1 as Kartha of said joint family acquired property of his uncle Sanjeevaiah for benefit of himself and also his other siblings i.e., defendant and other brothers. The said finding of 1st appellate court is totally baseless, erroneous and perverse conclusion with that it reversed the finding of trial Court. 14. Therefore, when once it is accepted that there is no joint family concept, either defendant or other brothers of plaintiff No.1 claiming a share in the said property or trying to say that they are in joint possession and enjoyment of same, does not arise. At the most, possession of defendant over suit schedule property could be termed as permissive possession and at any cost it cannot be considered as joint possession and no right can be established by her in suit schedule property. Therefore, presumption of 1st appellate court in proceeding in this manner is perverse. At the most, possession of defendant over suit schedule property could be termed as permissive possession and at any cost it cannot be considered as joint possession and no right can be established by her in suit schedule property. Therefore, presumption of 1st appellate court in proceeding in this manner is perverse. It is seen that 1st appellate Court has arbitrarily proceeded to decide the appeal without taking into consideration any of documents and pleadings which are produced by plaintiffs in support of their case. 15. It is seen that finding of 1st appellate court that sale deed executed by plaintiff 1(a) in favour of 2nd plaintiff pursuant to the Will executed by 1st plaintiff on 22.10.1993, is not in force, is incorrect. Section 213 of the Indian Succession Act as it existed on the date of execution of Will put restriction on the right of legatee to the effect that the legatee has to obtain probate of the said Will under which he or she claims rights from a competent Court and the same was a mandatory requirement. However, subsequently in the year 2002 by an amendment the embargo put by Section 213 was removed. Infact as on the date when Will was executed by 1st plaintiff, litigation was already there. During the pendency of suit Will was executed and thereafter, 1st plaintiff died. Subsequent to his death, pursuant to bequeath made in her favour in the said Will, plaintiff 1 (a) sold and conveyed suit schedule property in favour of 2nd plaintiff. 2nd plaintiff came on record which was not challenged by defendant at the initial stage. Only when the suit was decreed a plea was taken to the effect by defendant in regular appeal. As on the date when regular appeal was taken-up for consideration the restriction of condition imposed under Section 213, was not in force. 16. The Counsel for appellants in support of this relied upon the judgment of Kerala High Court in the matter of Acho Dominic @ Reenku & Ors., -vs- Xavier & Ors., reported in 2000 AIHC 2210, wherein it is held as under:-“16. The next substantial question arising in this case is whether the Will need to be probated in terms of S.213 of the Indian Succession Act. An amendment has been made by the State Legislature inserting the words ‘Indian Christian’ after the word ‘Muhammadan’ in the said section. The next substantial question arising in this case is whether the Will need to be probated in terms of S.213 of the Indian Succession Act. An amendment has been made by the State Legislature inserting the words ‘Indian Christian’ after the word ‘Muhammadan’ in the said section. By reason of that Indian Christians no longer have the liability to apply to probate a Will in terms of the said section. Of course this statutory change took place during the pendency of this appeal. When the lower appellate Court decided the matter it ought to have been probated. The law available was to that effect. Because of the change now effected the Indian Christian will need not be probated. Whether that amendment could be applied to pending appeals is now no longer res integra. This Court as per the decision reported in Syndicate Bank v. Soji Chacko (1998) 2 Ker Land Tribunal 25 held that it was only a prospective amendment. Even then that amendment can be applied to a case pending in appeal as well. This Court held as follows: “The right to sue (See Mani Iyer v.Azhakan, ILR (1972) 1 Ker 248 and the right of appeal (See State of Bombay v. S.G.Films Exchange, AIR 1960 SC 980 ) are vested rights. Even the right to a forum could be a vested right (See Garikapati v.Subbiah Chowdhry, AIR 1957 SC 540 ). In my view, a right to relief if grounds are made out in support of it at the trial, is also an accrued or vested right, the said right having accrued to the litigant on his filling the suit. As observed by his filing the suit. As observed by the Supreme Court, normally a litigant is entitled to relief on the day he approached the Court for relief, (See Rameshwar v.Jot Ram, AIR 1976 SC 49 ). The bar to the grant of a relief to him as the one enacted in S.213(1) of the Act cannot be said to be merely procedural. It bars the grant of relief to a plaintiff (even to a defendant, if it comes to that) and such a bar cannot be held to be merely procedural. The removal of such a bar, in my view, cannot be considered to be merely procedural. It bars the grant of relief to a plaintiff (even to a defendant, if it comes to that) and such a bar cannot be held to be merely procedural. The removal of such a bar, in my view, cannot be considered to be merely procedural. It is, therefore, not possible to hold that the Kerala Amendment is merely procedural and hence retrospective and consequently must be applied to suits instituted prior to the amendment.” The Court further held that: But since the bar, as indicated by the Supreme Court in Hem Nolini’s case ( AIR 1962 SC 1471 ) and the other decisions referred to is only to the grant of a decree, the plaintiff can take advantage of the prospective amendment and request this court to grant her relief on the plea that the bar to relief does not any more subsist. The plaintiff would be entitled to relief from this Court on the strength of the Will if she had proved the Will in the present suit as required by law.” 14. Thus, as the defendant has in this case proved the Will as held above, the requirement of probate no longer stands in the way. This substantial question of law also is answered in favour of the appellant reversing the finding to that effect entered into by the lower appellate Court.” 17. Even otherwise, in the instant case, correctness or otherwise of sale deed executed by widow of 1st plaintiff in favour of 2nd plaintiff can be questioned by other legal heirs of plaintiff No.1 i.e., his daughters and son. As could be seen from records, one of the son-in-law of plaintiff No.1 is a witness in this proceeding as PW.3. He has given evidence in support of the case of plaintiffs 1(a) and 2. Further there is document executed by the only son of plaintiff No.1 giving up his right, title and interest in suit schedule property in favour of his mother. The sale deed executed by plaintiff 1(a) in favour of 2nd plaintiff and the Will executed by plaintiff No.1 in favour of plaintiff 1(a) which are now sought to be produced by appellants is not necessary at this stage, for the reason, that sale deed is not denied by defendant. On the contrary the correctness of execution of sale deed in favour of 2nd plaintiff, is challenged by defendant. On the contrary the correctness of execution of sale deed in favour of 2nd plaintiff, is challenged by defendant. Since defendant being neither a legal heir of deceased plaintiff No.1 nor having any subsisting right in suit property, she has no right to challenge the sale transaction between plaintiff 1(a) and 2nd plaintiff. If at all, there is any person who has right to challenge the said sale transaction is the children of deceased plaintiff No.1 and plaintiff 1(a). When they do not have any objection for this sale transaction, defendant who is a total stranger to suit schedule property has no manner of right, title or interest to challenge the correctness or otherwise of sale transaction entered into between widow of 1st plaintiff and third party. 18. So far as right that is available for defendant in this proceeding is to show whether suit schedule property is joint property of herself and plaintiff No.1 or whether she has any manner of right, title or interest/share in respect of site measuring 40x117 1/2 (120) feet and the house measuring 20x25 feet constructed thereon wherein she was staying at the time of filing of the suit by plaintiff No.1 against her. Since defendant has miserably failed to establish that either she is co-owner or said property is joint property in which she has a share, it is not open for her to challenge the correctness of the transaction between plaintiff 1(a) and 2nd plaintiff. 19. In the result, second appeal of plaintiffs is allowed. The judgment and decree passed by 1st appellate Court in RA.No.207/2004 reversing the judgment and decree passed in favour of plaintiffs in OS.No.560/1990, is set aside. Consequent judgment and decree passed in O.S.No.560/1990 is confirmed. The appellants are entitled for cost of this proceedings through out.