JOHN BAPTIS LOBO Vs. BONIFACE FELIX LOBO

JUDGEMENT

(1.) This is a third defendant's appeal aggrieved by the judgment and decree dated 27-7-1988 passed by the learned Civil Judge, Mangalore in O.S, 61 of 1988 on his file.

(2.) The brief facts which are required to be stated for a fast disposal of this appeal are as follows: The plaintiff filed the suit for possession of certain immovable and movable properties in which she had acquired a life interest under testamentary disposition of her late husband. Defendant No. 1 - her eldest son was the executor named in the will. Defendants 2 and 3 were her other sons. Defendant-4 is her daughter. Other defendants have jural relationship as persons in possession of some of the suit schedule properties. Her prayer in the suit was for possession of immovable properties as well as two taxi cabs, movables, bequeathed to her by her late husband, which were not given possession even after probate of the will by the 1st defendant - executor of the Will.

(3.) It is most unfortunate that the suit was allowed to progress in the trial Court when the relief should have been sought under the provisions of Indian Succession Act to remove the executor and appoint another to give effect to the terms of the will under Section 301 of the Indian Succession Act. Much time has been wasted in the Court of Civil Judge seeking the reliefs.