THRESIA Vs. KOCHUTHOMMEN

JUDGEMENT

(1.) This second appeal came up for consideration before us on an order of reference by a learned single Judge of this court. The reference order is as follows:

(2.) Now deceased Vareed had two wives. Defendant is one of the children born through his first wife. First plaintiff is the second wife and second plaintiff is her daughter born to Vareed. Ext. Al dated 19-8-1974 is said to be registered Will executed by Vareed bequeathing the property in dispute to both the wives. The property consists of five cents of land with a house in which plaintiffs are residing and in which defendant is said to have been permitted to reside along with the plaintiffs. The Will, while bequeathing the property of Vareed directed a sum of Rs. 500/- to be paid to the defendant and some other sums to other children of Vareed. Plaintiffs are amenable to make payments. On these averments they filed a suit to evict the defendant from the suit property. Defendent contended, inter alia, that unless the Will is probated the suit cannot be decreed. The trial court overruled all his contentions and decreed the suit as prayed for without costs. In appeal, the appellate Court took the view that unless the Will is probated the suit could not be decreed and accordingly reversed the decree and dismissed the suit without costs. Appellate decree and judgment are now challenged.

(3.) The only controversy before us is whether merely on the strength of certificate issued by the Administrator General under S.29 of the Administrators General Act, 1963 but without obtaining a probate from the District Court under the provisions of Part IX of the Indian Succession Act, 1925, the Civil Court can grant relief to legatee under a Will from a person to whom the provisions of Part IX apply.