DEVASSIA MATHEW Vs. MATHAI

JUDGEMENT

(1.) THE rigour of the statutory mandate contained in section 213 of the Indian Succession Act(for short the Act)falls for consideration in this Second Appeal.The defendant -appellant assails the decrees of the courts below on the ground that they have been passed without jurisdiction since the right enforced by the decree was based on an unprobated Will.The plaintiff -respondent support 's the decrees with the plea,that the right claimed is not on the strength of the Will but on the strength of the earlier decrees between the parties in which the Will was not questioned.

(2.) THE suit was for a declaration of title and for recovery of possession.Item 1 is a garden land and Item 2 a building standing on it.One Augusthy Thommen had executed Ext.A -4 Will in favour of the plaintiff,who is his son -in -law.The defendant is the son of Kathri,the youngest daughter of Thommen.Under Ext.A -4 the suit properties were bequeathed to the plaintiff,reserving life interest in favour of the testator 's wife,Anna and his daughter,Kathri.The testator died in 1115 M.E.His widow was,thereafter,in possession of the property.She was residing in the house with Kathri and her son,the defendant.Anna died on 17th November 1960.The plaintiff,thereupon filed O.S.No.275 of 1960,in Palai Munsiff 's Court,for recovery of possession from Kathri.The matter came up to this Court and this Court in second appeal dismissed the suit,holding that the property could be recovered only after the life -time of Kathri.Kathri died on 4th July 1975.The defendant had been continuing in possession even thereafter.Hence the suit.

(3.) THE trial court negatived the contentions of the defendant and decreed the suit.In appeal the defendant raised an additional contention that the suit was not maintainable since the Will,of which the suit was laid was unprobated.Hence this second appeal.