JUDGMENT :

RSA No.2245/2005 was filed by the defendant No.2 in O.S.No.104/1984 challenging the Judgment and Decree dated 31.03.1997 passed by the Munsiff and JMFC, Banhatti and the concurring Judgment and Decree of the First Appellate Court (District and Sessions Judge and Presiding Officer, Fast Track Court, Jamakhandi) dated 12.08.2005 in R.A.No.72/1997. Both the Courts held that the defendant No.1 (Smt.Bhowrawwa/Bhourawwa/Bourawwa) had a limited interest in the suit property and that the sale deed executed by her as such limited owner in favour of the defendant No.2 did not bind the right, title and interest of the Plaintiff in the suit property.

2. The plaint filed in O.S.No.104/1984 disclose that the defendant No.1 was the maternal aunt of the plaintiff and she was given in marriage to Basalingappa Uttappa Gallapagol. After the death of her husband, the defendant No.1 lived with Tippanna/Thippanna Girimallappa Huddar (henceforth referred as ‘Thippanna’) as his mistress, till his death. The plaintiff, as a boy then aged 8-10 years, lived with the defendant No.1 and Thippanna. The plaintiff claimed that the said Thippanna executed a settlement deed dated 01.07.1946 (Ex.P8), in terms of which, the said Thippanna handed over 18 guntas of land in R.S.No.29/1 for the maintenance of the defendant No.1. In the said settlement deed, the defendant No.1 was referred to as Thippanna’s mistress. The plaintiff stated that the said Thippanna sold a house to the defendant No.1 and in the sale deed, the defendant No.1 was referred as Bhourawwa, D/o Kashawwa Jagadal of Navalagi. He further stated that from the sworn statement recorded by defendant No.1 in P & SC. No.5/76 before the Principal Munsiff, Jamakhandi, and the evidence adduced by the defendant No.1 in O.S. No.152/1980 on the file of the learned Munsiff, Banahatti, it was impossible to consider defendant No.1 as the legally wedded wife of the said Thippanna. He further stated that the deceased Thippanna was a chronic patient, many years, before his death and he was completely under the control of the defendant No.1. Under those circumstances, the defendant No.1 allegedly obtained a Will on 11.05.1965, which was duly registered. By the aforesaid Will, the suit property was to be held by defendant No.1 during her lifetime and after her, it was to go to the plaintiff. After the death of Thippanna, on 06.10.1974, the plaintiff and the defendant No.1 were allegedly in actual possession and cultivation of the suit schedule property.

3. The plaintiff alleged that the defendant No.1 arranged the marriage of her niece with the plaintiff. However, later, she despised the wife of the plaintiff and expected the plaintiff to divorce his wife, which he refused. This irked the defendant No.1 and as a reprisal, she executed a deed of absolute sale dated 22.05.1984 in favour of the defendant No.2 conveying the suit schedule property. Therefore, the plaintiff filed the present suit seeking for a declaration that the plaintiff had a life interest in the suit property in terms of the Will dated 11.05.1965 and therefore the sale deed dated 22.05.1984 executed by the defendant No.1 in favour of the defendant No.2 did not bind the interest of the Plaintiff in the suit property.

4. The defendant No.1 filed her written statement and contended that she was the wife of the deceased Thippanna and she had succeeded to the estate of the deceased as a Class I heir. She contended that the plaintiff and the deceased Thippanna were not related. She also contended that she had filed P & SC No.5/76 before the Court of Prl. Munsiff and JMFC., Jamakhandi, and obtained a succession certificate in respect of a claim for Rs.3500/-, following which she filed O.S.No.152/1980 to recover a sum of Rs.3,500/-from the defendant No.2 herein. She contended that these two cases indicated that she was the wife of Thippanna. She averred in her written statement as follows “It is false to allege that the deceased Thippanna was completely