KALLYANI AMMA CHELLAMMA Vs. JANAKI AMMA PADMAVATHI AMMA

JUDGEMENT

(1.) The plaintiffs are the appellants. They filed the suit from which this appeal arises for a declaration of their title to the properties scheduled to the plaint on the basis that they were the legatees under a Will executed by one Krishna Pillai to whom the properties belonged. Krishna Pillai died on 10-10-1960. The plaintiffs are his sisters. Defendant No. 1 is his widow and defendants 2 to 6 are his children. According to the plaintiffs, Krishna Pillai had executed a Will, Ex. P1, on 1-10-1112 and deposited it in the District Registrar's Office, Trivandrum, as a closed Will inside a cover, Ex. P2. He took it back in 1950, and according to the plaintiffs, entrusted it with the 7th defendant, who is the son inlaw of the first plaintiff, for safe custody and with a direction to keep it secret and not to open it until his death The plaintiffs claim that it was his last Will The defendants contested the case, and according to them, the deceased Krishna Pillai, though had deposited a document called a 'Will' before the District Registrar, took it back, as an act of revocation of the Will, in 1950, and made an entry to that effect in his diary, Ex. D5. He also executed a Will on 30-10-1952 in which he clearly stated that he had revoked the earlier Will evidenced by Ex. P1. It was also alleged that the subsequent conduct of Krishna Pillai was clear evidence to show that he had revoked the earlier Will and constituted his wife and children as his sole legal heirs.

(2.) The Trial Court, after taking the entire evidence, came to the conclusion that deceased Krishna Pillai had by the act of withdrawing the Will from the District Registrar's office, revoked the Will, and this revocation was further confirmed by Krishna Pillai by the execution of Ex D4 Will dated 30-10-1952. Therefore the plaintiff's were found to be not entitled to claim any right under Ex. D1 and the suit was dismissed. It is against that this appeal is filed.

(3.) The learned counsel for the plaintiffs contended that in the nature of the defence plea that Krishna Pillai had executed a Will, Ex. P1, it is for the defendants to show that it had been validly revoked, that the evidence let in this case by the defendants would not justify a conclusion that Ex. P1 had been revoked. On the other hand, the respondents contended that the proof of revocation of the Will should arise for determination only if there was a valid Will as contemplated under S 63 of the Indian Succession Act. According to them, Ext. P1 did not satisfy this requirement They further contended that if for any reason Ex. P1 was a valid Will, the act of withdrawal of the Will from the District Registrar's office amounted to a revocation of the Will as contemplated by law and further that this revocation had been confirmed by Krishna Pillai by the execution of Ext. D4 Will. Two questions, therefore, arise for determination in this case: (i) whether there was a valid Will executed by Krishna Pillai, and (ii) if there was one, whether that had been revoked by Krishna Pillai.