JUDGMENT

SURINDER SINGH NIJJAR, J. — 1. This appeal by special leave has been filed by the legal heirs of the original plaintiff, Lalithamma. OS No.195 of 1986 had been filed by Lalithamma in the Court of Civil Judge, Mysore which was subsequently re-numbered as OS No.1434 of 1990 in the Court of Principal Civil Judge, (Junior Division), Mysore. The suit was for declaration that the plaintiff and defendant No.4 are the absolute owners of the suit schedule property and for possession thereof. The suit was dismissed by the trial court. The appeal filed by the plaintiffs against the aforesaid judgment was allowed. The suit filed by the plaintiffs was decreed as prayed. The High Court, however, in regular second appeal filed by the respondent herein, set aside the judgment of the first appellate court and restored the judgment of the trial court, i.e. the suit filed by the plaintiffs-respondents was dismissed. In these circumstances, the legal representatives of the original plaintiffs have filed the present appeal by special leave in this Court.

2. Briefly stated the facts of the case are that the plaintiffs claimed that Puttathayamma was wife of Sivaramaiah who pre-deceased her in 1950. Puttathayamma died on 15.11.1979. She had four children. Lalithamma (daughter) who died in 1990, was the original plaintiff. Subbaramaiah (son) who died issueless in 1973 and Smt. Kamalamma (daughter) also died issueless in 1998. She was impleaded as defendant No.4 in this suit. Smt. Indiramma was the 4th child. She also died issueless on 24.10.85. It is claimed that upon the death of Subbaramaiah, Puttathayamma inherited the suit property and became the absolute owner being class one heir of Subbaramaiah. Upon the death of Puttathayamma, the deceased plaintiff, defendant No.4, Kamalamma and Indiramma inherited her property. During her life time, Puttathayamma was living with Indiramma. Upon her death, Indiramma continued to be in possession of the property. The dispute about the property arose soon after the death of Indiramma.

3. Since the original plaintiff – Lalithamma and defendant No.4 were residing outside, they did not come to know about the death of their sister, Indiramma. Defendant No.1 claiming to be close relative of deceased Indiramma organized and performed her cremation ceremony. The house in which Indiramma was residing i.e., schedule property contained a lot of movable properties such as gold and silver jewellery and other articles which were of considerable value. He took charge of the house as well as the moveable properties by putting it under lock and key. On learning about the death of their sister, appellants and defendant No.4 came to Mysore. They demanded that defendant No.1 should hand over the possession of the house and moveable properties. He, however, refused to do so asserting that he was the absolute owner of the entire property. Not only this, it is stated that defendant No.1 had taken away several lacs of rupees which had been kept by Indiramma in various fixed deposits. Defendant No.1 had declined to hand over the title deeds of the schedule property as well as the bank deposit receipts.

4. The appellant and defendant No.4 also learnt that the first defendant had taken heavy advances from defendants No.2 and 3 and put them in possession of different portions of the schedule property as tenant. He had been recovering heavy rent from defendants No.2 and 3. During the pendency of the suit, defendants No.2 and 3 vacated the suit schedule property. Later, defendant no 5 was put in possession of the property.

5. In the suit, it is made clear that appellant and the 4th defendant will take separate action regarding the bank deposits and other moveable properties in appropriate proceedings after ascertaining the particulars thereof. It is clarified that the present suit was filed for declaration of the title to the property and for possession as the first defendant has denied their title by refusing to hand over the pro