VAREED Vs. P C GEORGE

JUDGEMENT

(1.) THE two questions that arise for consideration in this appeal are: (1) Whether under the terms of Ext. P1 Will executed by Ittiachan in 1083 his widow Iittianam was competent to execute Ext. P3 lease dated 22-9-1093 to the defendant's father, in respect of the plaint properties and (2) If so whether the defendant is entitled to the benefit of the proviso to Clauses (i) to (vii) to Sub-section (1) of section 3 of Act I of 1964.

(2.) THE plaintiff who is entitled to possession of the plaint items under the terms of ext. P1 instituted the suit for their recovery from the defendant. The suit hag been concurrently decreed by the courts below. The second appeal is filed by the defendant against the decrees of the courts below.

(3.) PARAMEL Ittiachan executed Ext. P1 Will on 19-10-1083 in respect of his properties including the plaint items. Ittiachan died in Mithunam 1083. The plaint properties are A Schedule items 1 and 2 in Ext. P1. It is agreed that A schedule items 6 and 8 in Ext. P1 were given absolutely to Ittianam. The dispute between the parties relates to the nature of the right created in favour of Ittianam in respect of A Schedule items 1 to 5, 7 and 9 to 17 in Ext. P1. It is admitted that these items were given to the plaintiffs father subject to the rights created in favour of Ittianam. The plaintiffs father died in 1932 and in the partition in the plaintiffs family evidenced by Ext. P2 dated 26-1-1960 the plaint properties were allotted to the share of the plaintiff. The plaintiff claims recovery of possession of the plaint items from the defendant on the basis of his title.