A co-owner may recover possession from a permissive occupant whose authority has been terminated.

The respondent sued for possession, alleging that the appellant had been permitted to occupy the ground and first floors of the property from June 2010 on payment of ₹7,000 per month, and had failed to vacate after notice.

The appellant denied any tenancy, claimed ownership under a Will dated 29 March 2010, and alternatively asserted that he occupied the property as a caretaker.

The trial court dismissed the suit, finding that the respondent had not proved the tenancy or his asserted Will.

On first appeal, the District Judge found that neither party had proved their respective Will, but held that the respondent had inherited an interest as a co-owner and decreed possession; it denied occupation charges for want of proof.

The appellant challenged that decree in this second appeal.

1. Whether the respondent, despite failing to prove the Will relied upon, had locus standi as a legal heir and co-owner to seek possession.

2. Whether the appellant established an independent right to remain in possession through his Will or caretaker claim.

3. Whether the possession decree could stand despite the absence of a landlord–tenant relationship and an issue specifically framed on the Wills.

4. Whether the appeal raised a substantial question of law under Section 100 CPC.

Section 100 CPC limits a regular second appeal to cases involving a substantial question of law.

Under the Hindu Succession Act, 1956, property devolves upon the deceased’s legal heirs where no effective testamentary disposition is established; a legal-heir co-owner may maintain a possession claim against a person unable to establish a superior or independent right.

A Will must be duly proved, and where suspicious circumstances arise, the propounder must satisfactorily explain them; proof of execution and attestation alone may not suffice.

The judgment also treated the notice to vacate as terminating any permissive occupation.

The Court accepted that the respondent had failed to prove his Will, but found that this did not defeat his claim: the deceased owner was survived by the respondent, his son, and the children of a predeceased daughter, giving the respondent an inherited co-ownership interest.

The appellant, in turn, failed to establish his claimed Will: although attestation evidence was offered, the circumstances surrounding the Will—including its execution shortly after the property’s purchase, the lack of evidence supporting the alleged caregiving or financial contribution, and the exclusion of the deceased’s natural heirs—remained unexplained.

The Court held that the Wills were relevant to the parties’ competing claims of right even though no separate issue had been framed on them.

Because the appellant established no independent right to possession, the absence of a landlord–tenant relationship did not bar the respondent, as co-owner, from obtaining possession.

The respondent had not, however, proved his claim for mesne profits.

It upheld the decree for possession, directing the appellant to deliver peaceful vacant possession within three months; failing that, he was directed to pay ₹10,000 per month for unauthorised occupation.

The claim for user and occupation charges before that period remained denied for want of evidence.