A subsequent Will, when proved in accordance with the Indian Succession Act, 1925 and the Indian Evidence Act, 1872, effectively supersedes any earlier Will, particularly when the earlier Will remains unproved and the claim of property transfer is based on an unregistered document.

THIS APPEAL COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

ORAL JUDGMENT

This regular second appeal is filed by the defendants calling in question the judgment and decree dated 04.09.2020 passed in R.A. No.17/2015 on the file of the Senior Civil Judge and JMFC, Channapatna, (‘First Appellate Court’ for short), whereby the First Appellate Court dismissed the appeal and confirmed the judgment and decree dated 30.01.2015 passed in O.S. No.23/2007 on the file of the Principal Civil Judge and JMFC, Channapatna, (‘Trial Court’ for short) for declaration and mandatory injunction.

Plaint averments:

2. The plaintiff states that he is the ‘absolute owner of the schedule property by virtue of a registered Will dated 12.06.1997 executed by Sundara Bai.’ After her death on 09.08.1997, khata was mutated in his name and he has been in lawful possession. It is stated that the defendants unauthorisedly encroached upon the ‘B’ schedule property (part of ‘A’ schedule property) and put up a temporary shed. It is stated that despite panchayat and demands, the defendants failed to vacate the property, thereby constraining the plaintiff to file the suit for declaration and mandatory injunction.

Written statement:

3. The defendants appeared and filed their written statement denying the plaintiff's title and possession and contended that Sundara Bai had earlier executed a Will dated 08.08.1996 in favour of Lakshman Rao, Son of Siddoji Rao, who is the brother of Sundara Bai and Lakshman Rao had subsequently transferred the property through a ‘panchayat parikath’ to the defendants. It is stated that the plaintiff is not the son of Sundara Bai and he has suppressed the material facts in this regard. It is submitted that the suit is not maintainable and liable to be dismissed.

4. The Trial Court, based on the pleadings, framed the issues. In order to substantiate the claim, the plaintiff examined himself as PW.1, attesting witness to the Will was examined as PW.2 and the scribe as PW.3 and marked documents at Exs.P1 to P8. On the other hand, the defendant examined himself as DW.1, attesting witness to the earlier Will was examined as DW.2 and marked documents at Exs.D1 to D9.

5. The Trial Court, based on the pleadings and appreciation of the oral and documentary evidence, recorded the finding that:

i. The plaintiff proved the execution of the Will dated 12.06.1997 by examining the attesting witness and scribe (PW.2 and PW.3 respectively) and the Will executed in favour of the plaintiff satisfies the requirements of law.

ii. Even if the earlier Will as claimed by the defendant existed, subsequent Will prevails over the earlier Will.

6. In the appeal preferred by the defendants, the First Appellate Court, being the last-fact finding Court, re-appreciated the entire oral and documentary evidence and held that:

i. The validity of Will (Ex.P5) is proved in compliance with Section 63 of the Indian Succession Act, 1925 and 68 of the Indian Evidence Act, 1872 and the evidence of PW.2, PW.3 and the admission of DW.2 was considered by the First Appellate Court.

ii. The earlier Will (Ex.D7) is not proved, as only a certified copy is produced, no attesting witness has been examined and no explanation has been offered for non-production of the original Will and hence, the said Will cannot be relied upon.

iii. That the ‘panchayat parikath’ is invalid, since it is an unregistered document and cannot confer title under law and its execution itself is doubtful.

iv. The beneficiary of the earlier Will, namely, Lakshman Rao was not examined and he himself has atte