JOY Vs. ANTONY

JUDGEMENT

(1.) Appellants are the defendants 1 to 4 in 0. S.71 of 1989 of the Sub Court, Trichur. They challenge the judgment and decree of the Sub Judge. The Sub Judge granted decree in favour of the respondent plaintiff allowing him to recover possession of the building and also items 2 and 3 of the plaint A schedule from the defendants.

(2.) Plaintiff and first defendant are the children of late Mrs. Margret Joseph. They have a sister by name Etty. Their mother executed Ext. A1 will in 1974. In accordance with the terms of the will plaint A schedule properties were bequeathed 10 the plaintiff. Item No. l of plaint A schedule is a building standing in item No. 2. Item No. 2 has the extent of 9 cents. Item No. 3 is a portion of a compound in Cherur village. As per the will 20 cents of property is bequeathed to the plaintiff out of the total extent of 80 cents. The case of the plaintiff is that in the building allotted to him (Old No. 618/ 25 of Trichur Municipality) defendants have no right and as per the terms of the will first defendant has to vacate the premises and give him peaceful possession of the building.

(3.) First defendant contended that the building bequeathed to him under the will for his residence was in the occupation of a tenant, that the tenant was willing to surrender the building to him, that the plaintiff who has been appointed as the executor under the will resisted him from taking surrender of the building, that the plaintiff was responsible for obtaining stay of the proceedings in R.C.O.P. 80 of 1986 and that on account of it he could not get possession of the building and as the executor as per the will did not take any steps to give him possession of the building and as the building has been completely ruined on account of the mismanagement and maladministration of the executor he has virtually lost the legacy.