GOVINDA PILLAI Vs. NARAYANA PILLAI

JUDGEMENT

(1.) The 4th defendant in O. S. No. 528 of 1123 on the file of the court of the District Munsiff of Thiruvella is the appellant in the second appeal. The suit by the plaintiff respondents was for a declaration of the right of their sakha tarwad over the plaint properties and for recovery of possession of the same with mesne profits. The learned Munsiff dismissed the suit, but on appeal by the plaintiffs the learned Subordinate Judge of Thiruvella decreed the suit in terms of the plaint with costs in both the courts. In second appeal the 4th defendant canvasses the correctness of the aforesaid decision of the learned Subordinate Judge.

(2.) It is agreed by the learned counsel appearing on both sides that the question in the second appeal centres round the effect of Ext. II on the testamentary disposition made under Ext. A. If my conclusion is that Ext. II revokes the testamentary disposition under Ext. A, then the second appeal has to be allowed and the dismissal of the suit by the learned Munsiff has to be restored. If on the other hand I come to the conclusion that Ext. II does not validly revoke Ext. A, then the second appeal has to fail. Ext. II is a will executed by one Parameswaran Pillai, but registered after his death. Ext. A is a similar earlier testamentary disposition by the same person, which was also registered. The learned Subordinate Judge has held that under S.18 of the Wills Act (Act VI of 1074) the revocation of a registered will had to be done by another registered will registered during the life-time of the testator. This, I am constrained to hold, is not correct. S.18(a) of Regulation VI of 1074 reads:

(3.) The further question is whether the Will has to be proved as required by S.16 of Regulation VI of 1074. S.16 enacts that every Will or Codicil made in Travancore shall be either registered in the manner provided in Part IX of Regulation I of 1070 or deposited under Part X of the said Regulation or proved in the manner and within the time prescribed by law, if any, for the time being in force relating to probate. S.22 of the said Regulation lays down that no Will, not deposited, nor proved nor registered as required by S.16, shall take effect as a testamentary disposition so as to affect any property, movable, or immovable, comprised therein. Therefore, one of the aforementioned three requirements alone is necessary; that is, either registration under Part IX or depositing the Will under Part X of Regulation I of 1070 (Regulation II of 1087) or proving the Will in the manner and within the time prescribed by the law relating to probate. If one of these conditions is complied with, the testamentary disposition takes effect. In the case before me Ext. 11 having been registered under Part IX of Regulation 1 of 1070 (Regulation II of 1087), it takes effect as a testamentary disposition. Therefore, I do not think that any further proof of the Will is necessary.