The central legal point established is the necessity of obtaining probate for a will to establish rights over the property, as per Section 213 of the Indian Succession Act, 1925.

JUDGMENT - CHITRE J.G., J.:---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 plaintiffs averred that in May 1964, the defendants resided in a room at Vakola with their six children and in the last week of May the defendant No. 1 approached the plaintiff Oswald Lawrence John Serron and begged for a shelter in the suit premises for the monsoon as his children were attending a school at Bandra. Showing mercy on them as averred by the appellant-original plaintiffs Oswald Lawrence allowed them to occupy Room No. B and allowed them to use bath room, lavatory, latrine and assessories as well as allowed access through verandah for common use along with them as non-paying guest. Daisy and her sister Ruby were residing in the suit premises. Ruby was residing with Daisy prior to marriage of Ruby which took place in the year 1959.

4. The appellants averred that Anthony started drinking heavily and under the influence of drink he used to assault Oswald Lawrence and in that context Oswald Lawrence had lodged complaint to Bandra Police Station. He also apprehended that the respondents (original defendants) were likely to take away his furniture and other articles belonging to him and his wife. Therefore, the original plaintiffs filed the suit for declaration that the defendants be declared as trespassers in the suit premises and they be evicted from it.

5. 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.

6. The trial Court dismissed the said suit on two counts. First, by holding that the original plaintiffs did not obtain the probate in respect of the said alleged Will and on the second ground that the plaintiffs failed to establish that the original defendants had no interest whatsoever in the suit house. He also held that the original plaintiffs did not prove that the original defendants had committed the acts of nuisance as averred by original plaintiffs. Decree of dismissal of the suit is being assailed by the appellants by this first appeal.

7. Mrs. Mandale submitted that the learned trial Judge committed the error of not appreciating the evidence on record properly and lan

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