These appeals have been instituted against the consolidated ruling of the Madras High Court in Appeal Suit. These appeals emanate from the Original Suit initiated by respondent No. 1 in ...
No Acts & Articles mentioned in this case
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5924 OF 2005
DR. K.S. PALANISAMI(DEAD)
THROUGH LRS. … APPELLANT
VERSUS
HINDU COMMUNITY IN GENERAL AND
CITIZENS OF GOBICHETTIPALAYAM
AND OTHERS … RESPONDETNS
WITH
CIVIL APPEAL NO.5925 OF 2005
G.K. PERUMAL(DEAD) THROUGH LRS. & ANR. … APPELLANTS
VERSUS
HINDU COMMUNITY IN GENERAL AND
CITIZENS OF GOBICHETTIPALAYAM
AND OTHERS … RESPONDETNS
WITH
CIVIL APPEAL NO.5926 OF 2005
THIRUGNANASAMBANDAM & ANR. … APPELLANTS
VERSUS
HINDU COMMUNITY IN GENERAL AND
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CITIZENS OF GOBICHETTIPALAYAM
AND OTHERS … RESPONDETNS
WITH
CIVIL APPEAL NO.6469 OF 2005
G.K. PERUMAL(DEAD) THROUGH LRS. & ANR. … APPELLANTS
VERSUS
HINDU COMMUNITY IN GENERAL AND
CITIZENS OF GOBICHETTIPALAYAM
AND OTHERS … RESPONDETNS
J U D G M E N T
ASHOK BHUSHAN, J.
These appeals have been filed against the common
judgment dated 7
th
July, 2005 of Madras High Court in Appeal
Suit(AS) No.851 of 1989 and Appeal Suit (AS)No.606 of 1989.
These appeals arise out of Original Suit No.76 of 1981
instituted by respondent No.1 to these appeals. The
parties hereinafter shall be referred to as described in
the Original Suit No.76 of 1981.
2.Civil Appeal No.5924 of 2005 has been filed by Dr. K.S.
Palanisami who was defendant No.13 in the Original Suit.
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Civil Appeal No.5925 of 2005 has been filed by G.K. Perumal
and Ramayummal who were defendant Nos.4 and 5 in the
Original Suit. Civil Appeal No.5926 of 2005 has been filed
by Thirugnanasambandam and Dr. M.R. Sibbian who were
defendant Nos.7 and 10 in the Original Suit. Civil Appeal
No. 6469 of 2005 has been filed by G.K. Perumal and
Ramayummal who were defendant Nos. 4 and 5 in the Original
Suit.
3.Brief facts of the case necessary to be noted for
deciding these appeals are:
(A)One Palaniappa Chettiar and his wife, Chinammal @
Rangammal possessed considerable properties in
Gobichettipalayam Taluk including 29 houses and 96.950
acres of Agriculture land. Rangammal possessed certain
agricultural land in Sathy Taluk also. Both Palaniappa
Chettiar and his wife, Rangammal jointly executed a Will
dated 27.9.1968. It is stated in the Will that couple do
not have any issue and there is no hope that they will live
long and their relatives are not fit to enjoy the
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properties. The Will further stated that on the death of
any one of them, survivor shall enjoy the entire property.
The Will enumerated various charities to be carried from
the income derived from the properties. Three Members
Committee was constituted for carrying out the charitable
objects. The Will in List No.1 enumerated the details of
house properties, agricultural properties in the name of
Palaniappa Chettiar and List No.2 contained the house and
agricultural properties in the name of Chinammal @
Rangammal. After execution of the Will, on 5.10.1969
Palaniappa Chettiar died. After the death of Palaniappa
Chettiar, Rangammal alienated about 10 properties by
separate sale deeds which were in her name as well few
properties which were in the name of her deceased husband.
(B)Defendant Nos.4 and 5 claimed that Rangammal by a
registered Will dated 27.11.1980 bequeathed her entire
properties in favour of defendant Nos.4 and 5. Smt.
Rangammal died on 24.12.1980. After the death of Rangammal,
defendant Nos.4 and 5 made several alienations of the
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properties belonging to Rangammal and her deceased husband
on the strength of Will dated 27.11.1980.
(C)Respondent No.1 claiming to be representative of
Hindu Community in General and Citizens of
Gobichettipalayam filed Original Suit No.76 of 1981
impleading Commissioner of Hindu Religious and Charitable
Endowment, Madras as defendant No.1, Revenue Divisional
Officer, Gobichettipalayam as defendant No.2 and District
Munsif, Gobichettipalayam as defendant No.3 along with
other defendants who claimed to be transferees from
Rangammal. Defendant Nos.4 and 5 were impleaded who claimed
a Will dated 27.11.1980 from Rangammal of the entire
properties apart from sale deed from Rangammal. Plaintiffs’
case in the suit was that Palaniappa Chettiar and his wife,
Rangammal by registered Will dated 27.9.1968 created a
Trust and made arrangements for due performance of
charitable objects. The power of management and
administration of the Trust was given in the Will to
defendant Nos.1 to 3 who were authorised to deal with the
Trust property without any power of alienation. It was
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pleaded that Will dated 27.9.1968 was a mutual and
irrevocable Will. It was pleaded that Palaniappa Chettiar
and his wife during their life time could not have acted in
derogation of the Will. The plaintiff further stated that
purported Will dated 27.11.1980 was not executed by
Chinnammal @ Rangammal in a sound and disposing state of
mind and the same was brought by defendant Nos.4 and 5 by
fraud, undue influence and coercion. Defendant Nos.6 to 13
are said to be purchasers of some of the items of the suit
properties from Rangammal and some from defendant Nos.4 and
5. Plaintiffs pleaded that defendants are trespassers of
the trust properties covered under the Will dated
27.9.1968. The plaintiffs were interested in the Trust to
be administered by defendant Nos.1 to 3 or other new
Trustees to be appointed by the Court. The plaintiffs
prayed for necessary arrangements for the management of the
Trust requiring defendant Nos.1 to 3 to enter upon their
duties as Trustees and take up the management of the Trust
or make arrangement for the appointment of other Trustees
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for proper management of the Trust. Defendants filed
written statements in the suit.
(D)The trial court framed 17 issues in the suit. The
trial court held that Will Ex.P.5 dated 27.9.1968 is not a
mutual Will but a joint Will and after the death of
Palaniappa Chettiar the Will became irrevocable.
(E)The trial court further held that Will dated
27.9.1968 is a true and valid document. It was further held
that plaintiffs were entitled to represent the Hindu
Community in General and Citizens of Gobichettipalayam
under Order 1 Rule 8 CPC. Trial court further held that
Will dated 27.11.1980 claimed by defendant Nos.4 and 5 is
not proved and it has not been executed in good, sound and
disposing state of mind. Ex.D109, Will dated 27.11.1980
was held not a true and valid Will. The trial court, came
to the conclusion that Trust is not formed under the Will
dated 27.9.1968, hence, plaintiffs were not entitled for
framing a scheme under Section 92 CPC. The suit was
dismissed.
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(F)Against the judgment of the trial court dated 2
nd
February, 1989 two Appeal Suits (AS) were filed in the
Madras High Court. A.S.No.851 of 1989 was filed by the
plaintiffs against the trial court judgment dismissing the
Original Suit No.76 of 1981. A.S.No.606 of 1989 was filed
by G.K. Perumal and Ramayummal, defendant Nos.4 and 5
against the judgment of the trial court in so far as it
rejected the Will dated 27.11.1980. Both the appeal suits
were decided by the Madras High Court by the impugned
judgment dated 7
th
April, 2005. The High Court dismissed the
A.S.No.606 of 1989 concurring with the judgment of the
trial court in so far as it has rejected Will dated
27.11.1980. A.S.No.851 of 1989 was allowed by the High
Court and the judgment of the trial court in so far as it
was against the plaintiffs was set aside. The High Court
held the Will dated 27.9.1968 as mutual and joint Will. It
was held that after the death of Palaniappa Chettiar,
Rangammal had no right to alienate any property and all
alienations of the properties made by her after the death
of Palaniappa Chettiar were null and void.
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(G)The High Court disposed of both the Appeal Suits
in the following manner:
“116.In the result,
(i)A.S.No.851 of 1989 stands
allowed. The Judgment of
the Trial Court in so far
as it is against the
Plaintiffs and the decree
is set aside.
(ii)A.S. No.606 of 1989 stands
dismissed. The finding of
the Trial Court on the
issue No.13 framed by it
stands confirmed.
(iii) The result is, learned
Subordinate Judge,
Gobichettipalayam or the
Judicial Officer having
jurisdiction over the
matter is permitted to
discharge the Receiver
after the Receiver submits
his accounts and on being
satisfied that the Receiver
can be discharged.
(iv)Learned Judicial Officer
having jurisdiction over
the case is directed to
frame a proper Scheme for
the trust and while framing
the Scheme, he need not
include the District
Munsif, Gobichettipalayam
as one of the trustees,
though the makers of the
Will (Ex.A5) have
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expressed their desire that
the District Munsif,
Gobichettipalayam should be
one of trustees. We are of
the view, it will not be
proper to induct the
District Munsif as one of
the trustees as it may
happen that litigation in
respect of the trust as
well as its properties may
come up before him in his
official capacity and it
may not be advisable to
induct him as one of the
trustees. Learned Judicial
Officer is also directed to
take into account the
wishes of the testators of
Ex.A5 while framing the
Scheme, as they wished that
the relatives of either of
them should be excluded
from the enjoyment and
management of their
properties. While
appointing the trustees,
learned Judicial Officer is
directed to keep in mind
that the persons of
unimpeachable character and
high integrity and at
least, some of them, if
possible from the community
to which Palaniappa
Chettiar belongs should be
appointed as trustees.; It
will be open to the learned
Judge to consider the
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entrustment of the
administration and
management of the trust to
the Administrative General
and Office Trustee (AG &
OT) of this Court as he
will be functioning under
the guidance of this Court.
(v)Since the plaintiffs have
not prayed for costs, there
will be no order as to
costs in both appeals.”
4.Civil Appeal No.6469 of 2005 has been filed against the
judgment of the High Court in A.S.No.606 of 1989 by which
judgment the appeal filed by defendant Nos.4 and 5 has been
dismissed. All other three appeals have been filed against
the judgment of the High Court in A.s.No.851 of 1989 by
which judgment the High Court set aside the judgment of the
trial court and decreed the suit of the plaintiffs as noted
above.
5.In Civil Appeal Nos.5925 of 2005 and 6469 of 2005, we
have heard Shri M.S. Ganesh, learned senior counsel,
appearing for the appellants. Mr. K. Ramamoorthy, learned
senior counsel has appeared for the appellants in Civil
Appeal No.5924 of 2005. Shri R. Balasubramaniam and Shri
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Ratnakar Das, learned senior counsel, have appeared in
Civil Appeal No.5926 of 2005. For the respondents, we have
heard Shri S. Balakrishnan, learned senior counsel and Shri
Vikas Mehta, learned counsel.
6.The submissions made by the learned senior counsel for
the appellants in first three appeals are almost similar.
Separate arguments have also been advanced by Shri M.S.
Ganesh in C.A.No.6469/2005. Learned senior counsel for the
appellants, Shri M.S. Ganesh contended that the suit filed
by the plaintiffs was not maintainable and was barred by
Section 108 of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959(hereinafter referred to as
'1959 Act'). He contended that although trial court has
specifically framed issue No.7, as to whether the suit is
barred by the provisions of Section 108 of the 1959 Act,
but trial court did not properly consider the issue and
erred in holding that there is no bar in filing the suit.
It was further contended that Will dated 27.9.1968 was not
a joint and mutual Will but was only a joint Will. A plain
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reading of the Will indicates that after the death of one
of the testators, the survivor had absolute right to deal
with the property and there was no embargo on the right of
survivor to dispose of the property after the death of
Palaniappa Chettiar. He submitted that alienations made by
Rangammal after death of Palaniappa Chettiar were within
her authority and High Court had committed error in holding
the said alienations as null and void. It is submitted that
Will itself not created any trust. It is contended that two
essential conditions for mutual Will, i.e., (i) A surviving
testator must have received benefit from the deceased
testator and (ii) It should have been executed in pursuance
of an agreement that the testators shall not revoke the
mutual Will, were not satisfied in the present case. A
specific clause in the Will gives liberty to the survivor
to revoke the Will and confers an absolute right and title
to the properties to the survivor which fully indicates
that Rangammal had right to alienate the properties after
the death of her husband. The transferees were bona fide
purchasers for value.
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7.Shri Ramamoorthy, learned senior counsel attacked the
judgment of the High Court raising almost similar
submissions. Shri Ramamoorthy further contended that the
contents of Will makes it clear that absolute right was
given to survivor and use of words “carvacutantiram” in
the original Will which is in Tamil language, clearly
indicates that absolute right was given to survivor,
Rangammal and alienations made by her in favour of
defendants were well within her authority. Defendants being
bonafide purchasers, who invested money in the property,
should have been considered by the High Court and at least
purchasers who have purchased from the survivor ought to
have been protected. The Will is not a mutual Will but only
a joint Will. The Will clearly states that survivor can
revoke the Will and execute a new Will.
8.Learned counsel for other appellants have also adopted
the above submissions.
9.Shri Ganesh in support of Civil Appeal No.6469 of 2005
submitted that the High Court failed to note that Will
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dated 27.11.1980 does not appear to be on the whole an
improbable, unnatural and unfair instrument. The High Court
failed to notice that mere exclusion of near relations from
the Will by the testatrix and preferring the appellants in
recognition of their valuable services during her old age
cannot be construed as suspicious circumstances. In the
Will dated 27.9.1968 it was categorically stated that their
properties should not go to their relations. The High Court
committed error in relying on the suspicious circumstances
as found by the trial court with regard to Will dated
27.11.1980.
10.Learned counsel for the plaintiffsrespondents refuting
the submissions of learned counsel for the appellants
contends that Will dated 27.9.1968 was mutual and joint
Will. The Will was executed by the husband and wife with
one mind and with mutual agreement. Charitable disposition
of Palaniappa Chettiar is apparent even from his first Will
executed on 15
th
July, 1931 where he disposed of substantial
part of his properties for charity. Although, his above
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Will was superseded on 15
th
July, 1956 executed in favour of
his wife Rangammal, but both husband and wife after
acquiring considerable properties decided to devote their
properties to charity. Consequently, the registered Will
dated 27.9.1968 was executed. The object and purpose of the
Will was to create a Trust of their properties, income of
which was to be utilised for the enumerated charities as
mentioned in the Will. After the death of Palaniappa
Chettiar, Rangammal had no authority to revoke the Will.
She had no right of alienation and giving any right of
alienation of properties shall be simply defeating the
intention of testators as delineated in the Will dated
27.9.1968. Smt. Rangammal was entitled to hold and enjoy
the properties upto her life but could not defeat the
trust, subsequent alienation after the death of Palaniappa
Chettiar, had rightly been ignored by the High Court. It is
submitted that the suit is not barred by Section 108 of
Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959 as contended by the counsel for the appellants. The
suit was rightly filed in the representative capacity and
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leave of the Court was obtained under Section 92. It is
contended that the Will does not create any religious
endowment within the meaning of Tamil Nadu Act. The suit
under Section 92 was fully maintainable with regard to
charitable endowment made by the Will dated 27.9.1968.
11.Learned counsel for the parties have placed reliance on
various judgments of this Court, different High Courts as
well as judgments of foreign Courts which shall be referred
to while considering the submissions in detail.
12.From the submissions made by the learned counsel for
the parties and the materials on record following are the
main points which arise for consideration in these appeals:
(1)Whether the suit filed by the plaintiff was barred
under Section 108 of the Tamil Nadu Hindu Religious
and Charitable Endowments Act, 1959 ?
(2)Whether the Will dated 27.9.1968 was a joint Will
or a joint and mutual Will, irrevocable after death
of one of the testators?
(3)Whether Will dated 27.9.1968 contemplated that
after the death of one of the spouse the surviver
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shall not possess power of alienation of any of the
properties and the word “absolutely with all the
rights” used in the Will should be read to mean
that surviving testator would have only life
interest to enjoy the rent and income?
(4)Whether alienations made by Chinnammal @ Rangammal
after the death of Palaniappa Chettiar were in
violation of the Will and invalid ?
(5)Whether Will dated 27.9.1968 contemplated a
creation of trust and as per the terms and
conditions of the Will the trust was to come in the
operation after the death of one of the spouse or
after the end of the life of the both or from any
other eventuality ?
(6)Whether Will set up by defendant Nos.4 and 5 i.e.
27.11.1980 has rightly been held to be not proved
by the trial court as well as by the High Court ?
(7)The relief to which, if any, the appellants are
entitled in these appeals.
BAR ON SUIT UNDER SECTION 108 OF TAMIL NADU HINDU
RELIGIOUS AND CHARITABLE ENDOWMENTS ACT, 1959
13.Learned counsel for the appellant submitted that suit
filed by the plaintiff being barred under Section 108 of
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1959 Act, the High Court erred in law in decreeing the
suit. Learned counsel submitted that trial court had framed
an issue No. 7 to the following effect:
“Whether the suit is barred by the
provision of Section 108 of the Hindu
Religious and Charitable Endowment Act.”
14.Trial court had answered the above issue against the
defendant. Before the High Court, it does not appear that
the appellants have raised the issue pertaining to the bar
of the suit under Section 108. After considering the
submission of learned counsel for the parties, the High
Court had framed only four points of consideration which
did not include the bar under Section 108. Learned counsel
for the appellant, however, submitted that the issue being
issue of jurisdiction, the appellants may be allowed to
raise in this appeal. We have permitted the learned counsel
for the appellant to raise the issue. Learned counsel for
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the appellant submitted that under 1959 Act, Section 108
provides as follows:
"No suit or other legal proceeding in
respect of the administration or
management of a religious institution or
any other matter of dispute for
determining or deciding which provision
is made in this Act shall be instituted
in any court of Law, except under and in
conformity with, the provisions of this
Act. ”
15.Learned counsel further relies on Section 5, according
to which, the provisions under Section 92 of the CPC 908
shall cease to apply to Hindu Religious Institutions.
Refuting the above submission, learned counsel for
plaintiffrespondent contends that the bar under Section
108 is not attracted with regard to suit filed by the
plaintiff in view of the fact that suit did not relate to
any Hindu Public Religious Institutions. A plain reading of
Section 108 indicates bar with regard to suit or other
legal proceeding is in respect of the administration or
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management of a religious institution . Section 5 on which
reliance has been placed is, as follows:
“The following enactments shall cease to
apply to Hindu religious institutions and
endowments, namely:
(a)The Tamil Nadu Endowments and
Escheats Regulation, 1817 (Tamil Nadu
Regulation VII of 1817);
(b)The Religious Endowments Act, 1863
(Central Act XX of 1863);
(c)The Charitable Endowments Act, 1890
(Central Act VI of 1890);
(d)The Charitable and Religious Trusts
Act, 1920 (Central Act XIV of 1920); and
(e)Section 92 and 93 of the Code of
Civil Procedure, 1908 (Central Act V of
1908).”
16.Section 3 of the Act contains a heading 'Power to
extend Act to charitable endowments'. Section 3 subsection
(1) is as follows:
"3.(1) Where the Government have reason
to believe that any Hindu or Jain public
charitable endowment is being mismanaged,
they may direct the Commissioner to
inquire, or to cause an inquiry to be
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made by any officer authorised by him in
this behalf, into th affairs of such
charitable endowment and to report to
them whether, in the interests of the
administration of such charitable
endowment, it is necessary to extend
thereto all or any of the provisions of
this Act and of any rules made
thereunder.”
17.Thus unless the provisions of Act are extended to
charitable endowments the bar under Section 108 shall not
be attracted. There is no case set up by the appellant
that suit filed by the plaintiff relates to a religious
institution, as contemplated by 1959 Act.
18.In view of the above, we are of the view that suit
filed by the plaintiff was not barred as under Section 108
of 1959 Act.
NATURE AND CONTENT OF WILL DATED 27.9.1968
19.The points No. 2, 3, 4 and 5 being interrelated are
taken together. Before we proceed to consider the
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respective submissions of learned counsel for the parties,
it is necessary to look into the Will dated 27.09.1968. As
noted above, the Will dated 27.9.1968 was executed by
Palaniappa Chettiar and his wife Chinnammal alias Rangammal
jointly. The original will is in Tamil Language; an English
translation of which has been brought on record as annexure
P. 1 in C. A. No. 6469 of 2005 which translation has been
referred and relied by learned counsel for both the
parties. At the end of the will, there is description of
the property, List 1 contain the properties in the name of
Palaniappa Chettiar and List 2 contains the properties in
the name of Chinnammal alias Rangammal. The entire
will(except the description of the properties) is extracted
as follows:
“Ex. A5 dated 2791968
The Registration of the Will executed by
Palaniappa Chettiar and Rangammal:
Doct. No. 76/1968:
Sri Ramajayam
“This Deed of Will executed on this
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27
th
day of September, 1968, corresponding
to Tamil 11
th
day of Purattasi Keelaga
year by N. Palaniappa Chettiar son of
Sruvalur Angampalayam Narayana Chettiar,
residing at Veerapandi Village Cusba,
Gobichettipalayam taluk1 and Chinnammal
alias Rangammal wife of Palaniappa
Chettaiar and daughter of Karuppanna
Chettiar2 jointly and with full consent
WITTNESSETH:
We have executed this Will and register
the same in respect of our self acquired
properties since we do not have any issue
though married long back, that we are not
in a position to adopt any one, that
there is no hope that we will live long,
that our relatives are not fit to enjoy
the properties and lay a claim for
whatever reason and that no one should go
to a Court, claiming right or interest
therein.
On the death of anyone of us, the
survivor shall enjoy the entire
properties, which are our self acquired
properties, absolutely with all the
rights and after his/her life time, and
carry on the undermentioned charities
from and out of the income derived from
them without alienating the same.
We have the right to modify, or
cancel this Will and to write a new Will
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during our life time either jointly or
individually.
This deed will come into effect
after our life time.
During our life time we shall manage
the property ourselves, do the desired
charities either jointly or individually.
In case we are not in a position to
carry out the desired charities during
our life time a committee consisting of
the following authorities shall be formed
to carry out the following charities:
The details of the charities:
1)A good choultry in the name of
us shall be constructed at Palani
for Hindus to use the same freely.
Its Administration will be with
Endowment Commissioner.
2)A portion of the income from our
Properties shall be used for doing
morning pooja permanently for Palani
Andavar.
3)A portion of the income from our
properties shall be spent for
feeding the poors at the time of
Thai Poosam in our name.
4)At Gobichettipalayam where our
life prospered, an Educational
Institution in our name shall be
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started and its administration will
be left either to the Government or
Municipality. The expenses therefore
shall be met from a portion of
income derived from our properties.
5)A Maternity Ward shall be
constructed at Gobi in our name from
out of a portion of the income from
our properties. The administration
thereof shall be left to the
Government.
The details of 3 member committee to
perform the charities.
1.The Endowment Commissioner –
Permanent President.
The name of two permanent
members:
1. The Revenue Divisional
officer, Gobichettipalayam.
2.The District Munsif,
Gobichettipalayam.
The above 3 persons shall have no
right to sell our properties. They can
spend only the income from the
properties.
The earlier Will executed in Doct.
No.19/56 shall stand cancelled
automatically.
In case we have not collected the
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amounts due to us or to discharge our
debts during our life time, then the said
committee shall have the power to collect
the same and to discharge the debts. The
committee shall lease out or give on rent
our lands and houses, collect the income
therefrom and utilise the same for the
aforesaid charities. All the expenses
shall be met only from the income of the
properties.”
20.The bone of contention between the parties is, as to
whether, the Will is a joint Will or a joint and mutual
Will. According to appellant, the Will is a joint will,
which is revocable by testatrix after the death of her
husband. On the other hand, learned counsel for the
plaintiff contends that the will being joint & mutual will,
there is no right of revocation in the testatrix after the
death of her husband. It is contended that the will
contains agreement of both husband and wife to settle their
property in a particular manner i.e. for charities and the
testatrix having obtained the benefit under the will after
the death of her husband, cannot be allowed to revoke the
will, which revocation is directly in breach of the
Page 28 28
agreement between the husband and wife and contrary to the
trust created by the will.
21.We thus, first proceed to examine the nature and
characteristics of joint will and joint & mutual Will.
Though, the laws relating to joint & mutual Wills
originated in Roman Dutch Law, which by passage of time
have been approved and applied both by English and American
Courts. There are ample precedents of our country also
adopting the concept of joint & mutual wills. 'Theobald' on
Wills 19
th
Edition (Sweet & Maxwell) has defined joint Will
and mutual Will in para 1011 and 1012 in following
manner:
"1011. Persons may make joint wills
which are revocable at any time by either
of them or by the survivor. A joint will
is looked upon as the will of each
testator, and may be proved on the death
of one. But the survivor will be treated
in equity as a trustee of the joint
property if the equitable doctrine of
mutual wills applies. Under this
doctrine there must be an agreement for
the survivor to be bound by the
arrangement between them; but the mere
Page 29 29
fact of the execution of a joint will is
not sufficient to establish such an
agreement for the survivor to be bound.
If this doctrine applies, a legacy to a
legatee who survived the first testator,
but predeceased the second, does not
lapse. Where a joint will is followed by
a separate will which is conditional on a
condition that fails, the joint will is
not revoked even though the subsequent
separate will contains a revocation
clause. ”
1012. The term “mutual wills” is used
to describe joint or separate wills made
as the result of an agreement between the
parties to create irrevocable interests
in favour of ascertainable beneficiaries.
The agreement is enforced after the death
of the first to die by means of a
constructive trust. There are often
difficulties as to proving the agreement,
and as to the nature, scope, and effect
of the trust imposed on the estate of the
second to die.
The revocable nature of the wills
under which the interests are created is
fully recognised by a probate court; but
in certain circumstances equity protects
and enforces the interests created by the
agreement despite the revocation of his
will by one party after the death of the
other without having revoked his will,
i.e. the survivor's property will be
Page 30 30
affected by the trust imposed so as to
give effect to the agreement.”
22.Halsbury's Laws of England 5
th
Edition Vol. 102 under
the heading 'Testamentary Disposition', in para 9 & 10
defines joint Wills & mutual Wills in following manner:
"9.Joint Wills. A joint will is a will
made by two or more testators contained
in a single document, duly executed by
each testator, and disposing either of
their separate properties or of their
joint property. It is not, however,
recognised in English law as a single
will. It is in effect two or more wills,
and it operates on the death of each
testator as his will disposing of his own
separate property; on the death of the
first to die it is admitted to probate as
his own will and on the death of the
survivor, if no fresh will has been made,
it is admitted to probate as the
disposition of the property of the
survivor. Joint wills are now rarely, if
ever, made.
10.Mutual wills.Wills are mutual when
the testators confer on each other
reciprocal benefits, which may be
absolute benefits in each other's
property, or life interests with the same
ultimate disposition of each estate on
Page 31 31
the death of the survivor. Apparently, a
mutual will in the strict sense of the
term is a joint will, but, where by
agreement or arrangement similar
provisions are made by separate wills,
these are also conveniently known as
mutual wills. Wills which by agreement
confer benefit on persons other than the
testators, without the testators
conferring benefits on each other, can
also be mutual wills. Where there is an
agreement not to revoke mutual wills and
one party dies having stood by the
agreement, a survivor is bound by it.
The doctrine of mutual wills has
been said to be anomalous and
unprincipled, so that the authorities do
not always speak with one voice on what
is truly essential to the doctrine or as
to the mechanisms by which it operates or
as to the consequences of its
application. However, it has been held
that there is at least clear guidance on
what must be established before the
doctrine can be invoked in that there
must be an irreducible core of a contract
between T1 and T2 that in return for T1
agreeing to make will in form X and not
to revoke it without notice to T2, then
T2 will make a will in form Y and agree
not to revoke it without notice to T1. It
seems that the precise form and terms of
the underlying contract do not have as
great a significance as the finding that
Page 32 32
such a contract actually exists and was
entered into.
It appears that where it is
established that there is a clear
agreement in the mutual wills or
elsewhere, that the wills are to be
mutually binding (whether or not
expressed in language of revocation) the
law will give effect to that intention by
way of a 'floating trust' and the trust
so created is not destroyed by the
remarriage of the second testator after
the death of the first.”
23.One of the earliest English cases, dealing with the
mutual Will is Dufour vs. Pereira, (1769) 21 ER 332 . In the
above case a husband and wife have executed a Will jointly.
Lord Camden in the above case stated as follows:
"The question is, as the husband by the
mutual will assents to his wife's right,
and makes it separate, whether the second
will by the wife is to be considered as
void.
It struck me, at first, more from the
novelty of the thing than its difficulty.
The case must be decided by the laws of
this country. The will was made here;
the parties lived here; and the funds are
Page 33 33
here.
Consider how far the mutual will is
binding, and whether the accepting of the
legacies under it by the survivor, is not
a confirmation of it.
I am of opinion it is.
It might have been revoked by both
jointly; it might have been revoked
separately, provided the party intending
it, had given notice to the other of such
revocation.
[421] But I cannot be of opinion, that
either of them could, during their joint
lives, do it secretly; or that after the
death of either, it could be done by the
survivor by another will.
It is a contract between the parties,
which cannot be rescinded, but by the
consent of both. The first that dies,
carries his part of the contract into
execution. Will the Court afterwards
permit the other to break the contract?
Certainly not.
The defendant Camila Rancer hath taken
the benefit of the bequest in her favour
by the mutual will; and hath proved it as
such; she hath thereby certainly
confirmed it; and therefore I am of
opinion, the last will of the wife, so
far as it breaks in upon the mutual will,
is void.
Page 34 34
And declare, that Mrs. Camilla Rancer
having proved the mutual will, after her
husband's death; and having possessed all
his personal estate, and enjoyed the
interest thereof during her life, hath by
those acts bound her assets to make good
all her bequests in the said mutual will;
and therefore let the necessary accounts
be taken.”
24.A Division Bench of Madras High Court, in an early case
reported in Minakshi Ammal vs. Viswanatha Aiyar, ILR 33
Madras 406, had occasion to consider mutual & joint Wills.
In the above case, a husband and wife made joint Will in
December 1897. The husband died in the year 1899,
thereafter in the year 1904, the testatrix executed a gift
to her daughter. Plaintiff, claiming to be beneficiary of
joint will brought a suit. The issue was, as to whether, at
the instance of testatrix the Will was irrevocable or
revocable.
25.Chief Justice Sir Arnold White after referring to
'Theobald on Wills' stated as follows:
Page 35 35
“...........With regard to the
authorities, so far as I am aware, the
only authority which can be said in any
way to support the contention advanced by
the plaintiff, who is the respondent
before us, is a judgment of Lord Camden
which is very shortly reported in a case
in Chancery decided so long ago as 1769,
Dufour v. Pereira, 1 Deck 419. That case,
however, was discussed and distinguished
in the later case of Walpole v. Oxford,
(1797) 30 Eng.,Rep., 1076 and the
decision in that case is clearly against
the plaintiff's contention that the will
is irrevocable. The Privy Council case
Denyssen v. Mostert,(1872) LR, 4 PC, App.
236 is an appeal from the Cape of Good
Hope, and it turns, at any rate to some
extent, on questions of Roman and Dutch
Law. So far as I know, there is nothing
in that case which helps the contention
put forward on behalf of the plaintiff.
But the most recent, and, as it seems to
me, the clearest exposition of the law on
this question is that given by Lord
Barnes, Sir Gorell Barnes, as he then
was, in the case of Stone v. Hoskins,
(1905) LR, Prob. Dn., 194 at page 197, he
says: It appears to me that the result is
tolerably plain. If these two people had
made wills which were standing at the
death of the first to die, and the
survivor had taken a benefit by that
death, the view is perfectly well founded
that the survivor cannot depart from the
arrangement on his part, because by the
death of the other party, the will of
that party and the arrangement have
become irrevocable; but that case is
Page 36 36
entirely different from the present,
where the first person to die has not
stood by the bargain and her 'mutual
will' has in consequence not become
irrevocable.” By the “mutual will” he
means the will made by the survivor. “The
only object of notice is to enable the
other party to the bargain to alter his
or her will also, but the survivor in the
present case is not in any way
prejudiced. He has notice as from the
death.”
Applying that principle to the facts
of the case before us, we have to see
whether it can be said that the survivor
has taken a benefit. It was suggested
that she took a benefit by the death of
the cotestator. That may be. It may be
that in this case if the wife died first
the husband took a benefit and if the
husband died first the wife took a
benefit; but the benefit so taken was
under the ordinary law and not under the
provisions of the will. As I understand
the will, there is nothing which gives
the surviving testator or testatrix a
benefit on the death of the testator or
testatrix who predeceases.”
26.This Court had occasion to consider the concept of
joint Will and mutual Will in Kochu Govindan Kaimal &
Others vs Thayankoot Thekkot Lakshmi Amma and Others, AIR
1959 SC 71(also reported in 1959(1) Suppl. SCR 1). In the
above case, three persons executed a Will on 10.02.1906
Page 37 37
jointly. They had bequeathed their properties in the manner
as indicated in the Will. After their deaths, the question
arose whether the Will was a joint Will or a mutual Will?
This Court held the Will not to be a mutual Will and while
explaining the joint Will and mutual Will following was
stated in para 11 & 12:
“11. A joint will, though unusual, is
not unknown to law. In Halsbury's Laws of
England, Hailsham's Edition, Vol. 34,
page 17, para. 12, the law is thus
stated:
“A joint will is a will made by two
or more testators contained in a single
document, duly executed by each testator,
disposing either of their separate
properties, or of their joint property.
It is not, however, recognised the
English law as a single will. It
operates on the death of each testator as
his will disposing of his own separate
property, and is in effect two or more
wills”.
There is a similar statement of the law
in Jarman on Wills, 8
th
Edition, page 41.
The following observations of Farewell,
J. in Duddell in re; Roundway v.
Roundway, 19321 Ch 585 at p. 592 are
apposite:
“.......in my judgment it is plain
on the authorities that there may be a
joint will in the sense that if two
Page 38 38
people make a bargain to make a joint
will, effect may be given to that
document. On the death of the first of
those two persons the will is admitted to
probate as a disposition of the property
that he possesses. On the death of the
second person, assuming that no fresh
will has been made, the will is admitted
to probate as the disposition of the
second person's property.........”
12.It was also argued for the
respondents that the will might be
construed as a mutual will, but that, in
our opinion, is an impossible contention
to urge on the recitals of the documents.
A will is mutual when two testators
confer upon each other reciprocal
benefits, as by either of them
constituting the other his legatee; that
is to say, when the executants fill the
roles of both testator and legatee
towards each other. But where the
legatees are distinct from the testators,
there can be no question of a mutual
will. It cannot be argued that there is,
in the present case, a bequest by the
testators to themselves. There is nothing
in the will to support such a contention,
which would be inconsistent with the
position taken by the respondents that
there was a settlement of the properties
inter vivos converting separate
properties into joint properties. In
this view, on the death of Kunhan Kaimal
his properties vested in the legatees
under the will dated February 10, 1906
and therefore neither Kesavan Kaimal nor
his transferees under the deeds could lay
any claim to them.”
Page 39 39
27.A Division Bench of the Madras High Court had occasion
to elaborately consider the concept of joint Will and
mutual Will in Kuppuswami Raja And Anr. vs Perumal Raja And
Ors., AIR 1964 Madras 291. In the Madras case, two brothers
Perumal and Chinnappa executed a Will on 31.10.1942. The
Will disposed the properties to different relatives.
Chinnappa died in the year 1949, Perumal, the surviving
brother executed a 'registered Will' dated 09.08.1950,
cancelling and modifying the earlier Will, in which the
plaintiffs were not entitled to claim any right in terms of
the earlier Will.
28.The suit of plaintiff was dismissed by the learned
Munsif, which decree was setaside and suit was decreed in
appeal. High Court restored the judgment of the Munsif. In
the Letters Patent Appeal, the Madras High Court has
restored the judgment, decreeing the suit. After noticing
the English, American and Indian cases, the Division Bench
of Madras High Court in para 32 has laid down as following:
"32....We confess that the matter is not
Page 40 40
free from difficulty. But after a careful
consideration of all the aspects of the
matter, we are inclined to take the view
that a joint mutual Will becomes
irrevocable on the death of one of the
testators if the survivor had received
benefits under the mutual Will, and that
there need not be a specific contract
prohibiting revocation when the
arrangement takes the form of not two
simultaneous mutual Wills but one single
document. In fact in some of the cases
referred to above this aspect that if the
two testators had executed one single
document as one single mutual Will the
position may be different is actually
adverted to. In our opinion, if one
single document is executed by both the
brothers using the expressions “our
property” “our present wishes” “our Will”
and such similar expressions, it is
strong cogent evidence of the intention
that there is no power to revoke except
by mutual consent.”
29.The Madras High Court in the above case has returned
the findings that Perumal had taken benefit under the joint
Will hence, he could not have revoked the Will and executed
another Will, modifying the bequeath earlier made.
30.This Court in Dilharshankar C. Bhachecha vs The
Controller Of Estate Duty, Ahmedabad, (1986) 1 SCC 701,
Page 41 41
had elaborately considered the concept of Joint & mutual
Will. The above case was also a case of a joint Will
executed by a husband and wife with regard to a Bungalow.
Wife died on 03.01.1954, after her death estate duty on her
share of the property was paid. Subsequently, on
25.10.1964, the husband also died, after his death, the
question arose, as to whether, the estate duty was payable
only on half share of husband or the estate duty was
payable on entire property, which devolved on husband. The
issue was, as to whether, as per the Will, after the death
of wife, husband had only limited share in estate or he
became full owner of the entire bungalow.
31.The contention of the Revenue was that the Will clearly
mentioned that survivor shall be the owner of the house,
hence, the husband became the owner of the entire house and
the Will was a joint Will with full proprietary right to
the husband. The case of the appellant was that the Will
was joint & mutual and husband had no right of alienation.
High Court held, their being no agreement that survivor
Page 42 42
shall not revoke the Will or do nothing to diminish the
quantum of the property going into the hands of subsequent
legatee, survivor took the absolute interest in the
property. This Court after referring to 'Theobald on
Wills', 'Halsbury's Laws of England', 'Jarman on Wills' and
after referring to several English cases and judgments of
this Court and judgment of Madras High Court in Kuppuswami
Raja (supra) has laid down following in para 50 . In para 55
propositions were laid down. Para 50 and 55 are quoted as
below :
“50.Therefore the will must be construed
in its proper light and there must be
definite agreement found from the tenor
of the Will or aliunde that either of the
joint executants would not revoke the
Will after receiving the benefit under
the Will. Such definite agreement need
not be express; it can be implied. The
terms of the Will have been set out
exhaustively. It was undoubtedly a joint
Will. The property in question has been
described as “our property”. The
expression 'owner' has also been used in
the manner indicated in the sentence
“During our lifetime we shall continue to
be the joint owners of the land bungalow
and blocks with their common bathroom and
two privies....and shall be jointly
entitled to the rents and income of the
Page 43 43
said land and blocks and the user and
rent of the bungalow”. The Will goes on
further to say that on the death of one
of them, the survivor shall become the
“owner of...and shall become entitled to
the rents and income and user of the said
land bungalow and blocks including
garage..... “. Therefore it is clear that
the ownership which the joint executants
contemplated was the user during the life
time and entitlement to the rents and
income of the same. It is this ownership
which was to pass on the death of either
of them to the survivor and the Will
thereafter goes on to say that “the
provisions hereinafter contained shall
become effective after the death of the
survivor of us”. And thereafter after the
death it is provided "we hereby devise
and bequeath our said furnished
bungalow....". The gift of the property
to the three grandchildren as owners in
full sense is to take effect on the death
of the survivor of both the executants.
It is clear that the property was
intended to be kept intact for the
enjoyment of the ultimate legatees and
during the lifetime of either of them the
property would not in any way be parted
with or diminished. This intention,
expressed in the implied terms in the
bargain in the Will, in our opinion,
would be fortified by devising the
property to three grandchildren in
species i.e. in specific form and not
providing for any money or compensation
for diminution of any part thereof before
coming into effect of the Will in
question. If that is the position then,
Page 44 44
in our opinion, there is a definite
agreement not to revoke the Will by one
of the executants after he or she has
received the benefit under the Will on
the death of either of them.”
"55. In view of the above discussion, the
following propositions follow:
(1) Whether estate duty was payable on
the whole of the property or not would
depend on whether the deceased
Kamlashankar Gopalshankar had “disposing
power” over the share of Mahendraba
inherited by him or her death or not?
(2)The above question would depend on
the construction of the joint Will – did
it create any mutuality among the
executants of the joint Will? Whether
Kamlashankar Gopalshankar having accepted
and after his wife's death, was competent
to do anything contrary to the ultimate
bequest? Before the death of the first of
the executants, the agreement remained
contractual one in consideration of
mutual promises. It could have been at
that stage revoked by mutual agreement or
even by unilateral breach, giving rise at
the most to an action for damages. But
after the death of the first one without
revoking his or her own Will makes the
joint Will irrevocable by the
survivor[see Theobald (supra)]. But there
must be an agreement that the Wills would
not be revoked after the death of one of
the executants or disposition will not be
made contrary to the Will after the death
of one of the executants. Such an
agreement may appear from the Will or may
Page 45 45
be proved outside the Will but that is
not established by the mere fact that the
Wills are in identical terms. If such an
agreement is shown, each party remains
bound.
(3)A different and separate agreement
must be spelled out not to revoke the
Will after the death of one of the
executants. That agreement must be clear
though need not be by a separate writing
but must follow as a necessary
implication which would tantamount to an
express agreement.
(4)The predominant intention of the
executants at the time of the execution,
after the acceptance of the benefit of
the execution makes the Will in this case
irrevocable by the survivor of the
executants.
(5)Judged by the principles indicated
above, in the facts and circumstances of
this case, we are of the opinion because
of the specific clause that it was
intended that the grandsons would receive
the benefit in species and there being no
provision for making up the deficiency or
diminution if any, it must follow that
there was mutuality and Kamlashankar
Gopalshankar was not competent to dispose
of the property in any manner contrary to
the ultimate disposition.
(6)The fact that estate duty was paid
is non sequitur.
(7)The payment of wealth tax by
Kamlashankar Gopalshankaron the whole
estate after the death of Mahendraba is
Page 46 46
not relevant.
(8)The question of strict construction
of the taxing statute and the principle
that one who claims exemption must
strictly come within the purview is not
relevant in this case because the
exemption follows on the interpretation
of the Will.”
32.Before we advert to the Will dated 27.09.1968, it is
useful to recall few well settled rules of construction of
a Will. Privy Council in an old decision, Sreemutty
Soorjeemoney Dossee Vs. Denubundoo Mullick (185457) 6 MIA
526, laid down following rules of construction of a Will.
“The Hindu Law, no less than the
English law, points to the intention
as the element by which we are to be
guided in determining the effect of a
testamentary disposition; nor, so far
as we are aware, is there any
difference between the one law and the
other as to the materials from which
the intention is to be collected.
Primarily the words of the will are to
be considered. They convey the
expression of the testator’s wishes;
but the meaning to be attached to them
may be affected by surrounding
circumstances, and where this is the
case those circumstances no doubt must
be regarded. Amongst the circumstances
thus to be regarded, is the law of the
Page 47 47
country under which the will is made
and its dispositions are to be carried
out. If that law has attached to
particular words a particular meaning,
or to a particular disposition a
particular effect, it must be assumed
that the testator, in the dispositions
which he has made, had regard to that
meaning or to that effect, unless the
language of the will or the
surrounding circumstances displace
that assumption.”
33.In Rajendra Prasad Bose and another. Versus Gopal
Prasad Sen, AIR 1930 Privy Council 242 , laid down that “the
duty of the Court is to ascertain the intention from the
words used in the document” and it further held:
“...once the construction is settled,
the court is bound to carry out the
intention as expressed and no
other...”
34.Justice B.K. Mukherjea J., speaking for this court in
Gnambal Ammal Vs. T. Raju Ayyar and others, AIR 1951 SC
103, on construction of the Will laid down following in
paragraph 10:
Page 48 48
“10. The cardinal maxim to be observed
by Courts in construing a will is to
endeavour to ascertain the intentions
of the testator. This intention has to
be gathered primarily from the
language of the document which is to
be read as a whole without indulging
in any conjecture or speculation as to
what the testator would have done if
he had been better informed or better
advised. In construing the language of
the will as the Privy Council
observed in Venkata Narasimha Vs.
Parthasarathy, 41 , I.A.51 at p.70 (21
I.C. 339 P.C.),
“the Courts are entitled and
bound to bear in mind other
matters than merely the words
used. They must consider the
surrounding circumstances, the
position of the testator, his
family relationship, the
probability that he would use
words in a particular sense, and
many other things which are often
summed up in the somewhat
picturesque figure. ‘The Court is
entitled to put itself into the
testator’s armchair’……But all
this is solely as an aid to
arriving at a right construction
of the will, and to ascertain the
meaning of its language when used
by that particular testator in
that document. So soon as the
construction is settled, the duty
of the Court is to carry out the
intentions as expressed, and none
other. The Court is in no case
Page 49 49
justified in adding to
testamentary dispositions…… In
all cases it must loyally carry
out the will as properly
construed, and this duty is
universal, and is true alike of
wills of every nationality and
every religion or rank of life.”
35.In the above case, a word of caution was also given in
paragraph 9, which is to the following effect:
“9. In course of the arguments, we
have been referred by the learned
counsel on both sides to quite a large
number of decided authorities, both
English and Indian, in support of
their respective contentions. It is
seldom profitable to compare the words
of one will with those of another or
to attempt to find out to which of the
wills, upon which decisions have been
given in reported cases, the will
before us approximates closely. Cases
are helpful only in so far as they
purport to lay down certain general
principles of construction and at the
present day these general principles
seem to be fairly well settled.”
36.General principles for construction of a Will have been
reiterated by this court in a large number of cases. It
shall be sufficient to refer to a three Judge Bench
Page 50 50
judgment of this court in Navneet Lal alias Rangi Vs. Gokul
& Others, 1976 (1) SCC 630. After referring to judgment of
Privy Council and several judgments of this court, certain
principles were enumerated in paragraph 8 of the judgment,
which is to the following effect:
“8. From the earlier decisions of this
Court the following principles, inter alia,
are well established:
(1)In construing a document whether in
English or in vernacular the
fundamental rule is to ascertain the
intention from the words used; the
surrounding circumstances are to be
considered ; but that is only for the
purpose of finding out the intended
meaning of the words which have
actually been employed.(Ram Gopal V.
nand Lal)
(2) In construing the language of the will
the court is entitled to put itself
into the testator’s armchair ( Venkata
Narasimha V. Parthasarathy) and is
bound to bear in mind also other
matters than merely the words used . It
must consider the surrounding
circumstances, the position of the
testator, his family relationship, the
probability that he would use words in
a particular sense. . . . But all this
is solely as an aid to arriving at a
right construction of the will, and to
ascertain the meaning of its language
Page 51 51
when used by that particular testator
in that document. ( Venkata Narasimha’s
case(supra) and Gnambal Ammal V. T.
Raju Ayyar)
(3)The true intention of the testator has
to be gathered not by attaching
importance to isolated expression but
by reading the will as a whole with
all its provisions and ignoring none
of them as redundant or contradictory.
(Raj Bajrang Bahadur Singh V.
Thakurain Bakhtraj Kuer)
(4)The Court must accept, if possible,
such construction as would give to
every expression some effect rather
than that which would render any of
the expressions inoperative. The court
will look at the circumstances under
which the testator makes his will,
such as the state of his property, of
his family and the like. Where
apparently conflicting dispositions
can be reconciled by giving full
effect to every word used in a
document, such a construction should
be accepted instead of a construction
which would have the effect of cutting
down the clear meaning of the words
used by the testator. Further, where
one of the two reasonable
constructions would lead to intestacy
that should be discarded in favour of
a construction which does not create
any such hiatus. (Pearey Lal V.
Rameshwar Das)
(5)It is one of the cardinal principles
of construction of wills that to the
Page 52 52
extent that it is legally possible
effect should be given to every
disposition contained in the will
unless the law prevents effect being
given to it. Of course, if there are
two repugnant provisions conferring
successive interests, if the first
interest created is valid the
subsequent interest cannot take effect
but a court of construction will
proceed to the farthest extent to
avoid repugnancy, so that effect could
be given as far as possible to every
testamentary intention contained in
the will. (Ramachandra Shenoy V. Mrs.
Hilda Brite)”
37.The High Court in the impugned judgment has elaborately
considered whether a Will is a Joint Will or Joint and
Mutual Will. High Court after referring to the large number
of cases has come to the conclusion that it is a Joint and
Mutual Will, since both the testator and testatrix agreed
to devote their properties for carrying out charities, the
High Court concluded that intention of both testator and
testatrix to give property to charities is manifest from
the reading of the Will in its entirety.
Page 53 53
38.We fully endorse the view taken by High Court that both
the Husband and Wife intended to give property into
charities and the Will clearly specified the list of
charities and the committee of three persons who was to
perform the charities. The mutuality to the above extent is
clearly found in the Will.
39.The main bone of contention between the parties as
noted above is the extent of right of survivor with regard
to alienation of property mentioned in the Will. Whether
testator or testatrix intended that after death of one of
them, the survivor shall enjoy the properties only as a
life estate without any right of alienation or survivor
shall take the properties absolutely with incidence of
right of alienation. The High Court on the above aspect had
devoted substantial part of the judgment and before us
also, learned Counsel for the parties addressed the
detailed submissions in support of their divergent stands.
Page 54 54
40.As noted above, intention of testator/testatrix in
testamentary disposition has to be gathered from the Will
itself and the words used therein. In the third paragraph,
following disposition has been made in the Will:
“...On the death of anyone of us, the
survivor shall enjoy the entire
properties, which are our self
acquired properties, absolutely with
all the rights and after his/her life
time, and carry on the undermentioned
charities from and out of the income
derived from them without alienating
the same”
41.The above in plain words provides that on the death of
any of the spouse, survivor shall enjoy the entire
properties absolutely with all the rights. What is the
connotation of words ‘absolutely with all the rights?’,
whether the above provision in the Will can be read as only
life estate i.e. right of enjoyment and receiving of rent,
income or absolute right indicates the exercise of all the
rights including the right of alienation.
Page 55 55
42.The High Court after noticing the contention of Learned
Counsel for the defendants formed the opinion that
expression ‘absolutely’ should be read to mean that the
surviving testator, namely, Rangammal would have only the
life interest. Following has been stated by the High Court
in paragraph 58:
“58. Mr. S.V.Jayaraman, learned Senior
Counsel for the respondents 4 and 5
and Mr. V.K.Muthuswami, learned Senior
counsel for the Respondents 6 and 9
submitted that after the death of one
of the testators, the other is given
the right of absolute enjoyment and
only out of the remaining property, if
any, the charities are to be
performed. We are of the view, the
expression ‘absolutely’ should be read
to mean that the surviving testator,
namely, Rangammal would have only the
life interest to enjoy the rent and
income from the combined properties
and she was allowed to use and enjoy
the properties subject to the
fiduciary duty to keep the properties
in tact for charities and she would
have no unqualified or unrestricted
power to enjoy the properties as she
pleases to defeat or to the detriment
of the gift over to the charities.”
(underlined by us)
Page 56 56
43.Shri Ramamoorthy, Senior Advocate, learned counsel for
the appellant, have contended that word ‘absolutely’ as
used in the Will indicates absolute right of the survivor
to deal with the property and word ‘absolute’ cannot be
read as limited right or life estate for the survivor.
44.It is submitted that the word used in original Will in
Tamil language more clearly indicates absolute right to the
survivor. Reliance is placed upon Govind Raja Vs. Mangalam
Pillai, AIR 1933 Madras 80 . The Madras High Court while
explaining the similar Tamil word used in a Will in context
whether it confers life estate or absolute estate,
following was stated:
“...In this second appeal, it is
contended on behalf of the appellants
(plaintiffs 2 to 4, plaintiff 1 having
died during the pendency of the suit
and plaintiffs 3 and 4 having been
added as his legal representatives)
that on a proper construction of Ex.A
it should be held that either a life
estate in favour of Madurambal with a
remainder over in favour of plaintiffs
1 and 2 or an absolute estate in her
favour subject to defeasance in the
event of her failing to have any issue
at the time of her death was really
Page 57 57
conferred on her. Having regard to the
terms of the earlier portion of the
deed which are to the effect, that the
done should enjoy the properties
absolutely or with all rights, it
cannot be reasonably contended that
what was conferred upon her was
primarily a life estate alone. The
tamil word “sarva suthantharamai ”...”
45.In one more part of the Will which is appended at the
end after description of the properties is relevant, which
is to the following effect:
“ ...If any property has been left
out, then the same, any property
purchased then they also, and if any
property is sold by deleting the same,
the remaining properties form part of
this document..”
46.The above provision in the Will clearly intends that
any property purchased shall treated to be added in the
document and further any property sold shall be deleted
from the document and the remaining properties form part of
this document.
Page 58 58
47.The above statement clearly contemplates possibility of
sale of any property which shall be deleted from the
description of the properties as mentioned in the document.
One more aspect of the Will needs to be noted. As extracted
above, in the last part of the third paragraph after
'his/her lifetime' word used are “and carry on under
mentioned charities from and out of the income derived from
them without alienating the same”. Reading the whole
paragraph together the word 'his/her lifetime' has been
used in reference to survivor who survives after the death
of one of the spouses. Thus, after the death of survivor,
the Will contemplates that charities shall be carried out
of the income derived from the property without alienating
the same. Thus, though in the same paragraph, after the
death of both the testators, the charities are required to
be carried out from the income derived from the properties
without alienation of the same, whereas the same
restriction i.e. “without alienation” has not been put in
the earlier sentence of the same paragraph when the rights
Page 59 59
of survivor have been referred to as ‘absolutely with all
the rights’.
48.High Court in its judgment has cut down/abridged the
expression 'absolutely' on the ground of mutual intention
of the parties in paragraph 66 of the judgment. High Court,
however, at the same time has held that expression
'absolute enjoyment' as employed in the Will as a sort of
comfort or cushion to the survivor who meets with an
unforeseen or unexpected contingencies, if any absolute
necessity arises. Following was stated in paragraph 66:
“66...we are therefore of the view
that the said expression ‘absolute
enjoyment’ as employed in the Will as
a sort of comfort or cushion to the
survivor to meet any unforeseen or
unexpected contingencies if any
absolute necessity arises but, at the
same time, it cannot be stated that
the bequest in favour of charities is
a mere wish and an absolute interest
was granted in favour of the survivor.
We therefore hold that the meaning of
the expression ‘absolutely’ should be
cut down or abridged considering the
mutual intention between the
executants in making the Will and
there are indications in the Will
Page 60 60
itself to curtail the full implication
and import of the expression
‘absolutely’ when it is used with
reference to the survivor...”
49.The intention in testamentary disposition has to be
primarily found out from the actual words used in the Will.
The court is not entitled to ignore clear words or add
something of its own or dilute the meaning of any clear
word used in the Will. The solemn duty of the court is to
find out the intention of testator and thereafter to give
effect to such intention. On the reading of the Will, the
intendment of testator/testatrix is clear that survivor
shall have absolute right of enjoyment of properties. There
is no reason not to give effect to said intendment on the
ground that the testator and testatrix have mutually
intended to set apart the property for charity and holding
that survivor shall have right of disposition be not in the
interest of the trust.
50.We do not find any word or any indication in the Will
to give a life estate to survivor. The Will clearly
Page 61 61
intended that survivor shall have absolute right to the
properties and after his/her death; the charity shall be
carried out from the income of the properties without
alienation of the properties. High Court itself has noticed
that testator was a person who was well versed with the law
of Wills since two earlier Wills were already executed by
Chettiar.
51.We are of the view that testators intended that
survivor should be given right of alienation. Why the same
word “without right of alienation” could not have been used
in the earlier part of the same paragraph when they used
the same word in end of the paragraph while providing for
carrying out charities after the death of the survivor from
the income derived from the properties without alienating
the same.
52.We, thus, are of the clear opinion that the Will
intended to give survivor absolute right with regard to
properties with further intendment that after the death of
survivor, the remaining property should be used for
Page 62 62
carrying out the charities. The clear intention of
testator/testatrix while executing the Will that the
charity shall be carried out from the income of the
properties is not given up even during life time of
survivor. The obligation to use the income of properties
for charity is attached with the property described in the
Will subject to giving survivor absolute right with regard
to properties.
53.In the above context, exposition of law in reference to
a mutual Will by Australian High Court in a case Birmingham
& ors. Vs. Renfrew & Ors., 57 Commonwealth Law Report 666 ,
needs to be referred.
54.In the above cases Dixon J. while delivering a
concurring opinion elaborated the concept of mutual Will,
he has referred to a third element to be inherent in nature
of mutual Will which according to Dixon J. had not been
earlier expressly considered. Dixon J. stated the third
element in the following words:
Page 63 63
“...There is a third element which
appears to me to be inherent the
nature of such a contract or
agreement, although I do not think it
has been expressly considered. The
purpose of an arrangement for
corresponding wills must often be, as
in this case, to enable the survivor
during his life to deal as absolute
owner with the property passing under
the will of the party first dying.
That is to say, the object of the
transaction is to put the survivor in
a position to enjoy for his own
benefit the full ownership so that,
for instance, he may convert it and
expend the proceeds if he chooses. But
when he dies he is to bequeath what is
left in the manner agreed upon. It is
only by the special doctrines of
equity that such a floating
obligation, suspended, so to speak,
during the lifetime of the survivor
can descend upon the assets at his
death and crystallize into a trust. No
doubt gifts and settlements, inter
vivos, if calculated to defeat the
intention of the compact, could not be
made by the survivor and his right of
disposition, inter vivos, is,
therefore, not unqualified. But,
substantially, the purpose of the
arrangement will often be to allow
full enjoyment for the survivor’s own
benefit and advantage upon condition
that at his death the residue shall
pass as arranged...”
Page 64 64
55.Dixon J. as noted above has held that survivor during
lifetime can deal as absolute owner of the property but
when he dies, he is to bequeath what is left in the manner
agreed upon. The obligation to utilize the property in a
manner agreed upon descends upon the asset on the death of
survivor and the right of disposition is not unqualified
but has to be in accord with manner of disposition.
56.As noted above, the High court in paragraph 66 of the
judgment also had considered that expression absolute
enjoyment as employed in the Will was a sort of comfort or
cushion to the survivor to meet with any unforeseen or
unexpected contingencies, if any necessity arises.
57.We, thus, are of the view that giving absolute right to
the survivor during his lifetime to deal with the
properties in no manner cannot be said to be right given in
disregard of object of trust. The charitable purpose of the
Will is not lost even if survivor is given absolute right.
The obligation of survivor to act in furtherance of object
Page 65 65
as agreed by both the testators survives and binds the
survivor. Although the Will was irrevocable after the death
of survivor but the Will expressly granted absolute right
to survivor.
58.In view of the foregoing discussion, we endorse the
view of High Court that the Will dated 27.9.1968 was a
joint and mutual Will, but with a rider that said joint and
mutual Will was with an express condition that survivor
shall have absolute right to deal with the property keeping
the object of trust alive. Giving of right of disposition
to the survivor was also one of the joint decision and
agreement between the testator and testatrix which does not
diminish the nature and character of Will as joint and
mutual Will.
59. Thus, in the present case, unless the alienation by the
survivor i.e. Rangammal is held to be completely in breach
of object of trust and fraud on trust, the Court is to be
slow in disregarding such alienations. In the suit filed by
the plaintiff although reference to alienation made by
Page 66 66
Rangammal were made and the High Court in its judgment in
paragraph 81 has detailed the alienation but the challenge
to the alienation before the trial court as well as before
the High Court was only on the ground that Rangammal was
not competent to alienate the property mentioned in the
Will after the death of Palaniappa Chettiar.
60.We are thus of the view that the alienation made by
Rangammal in favour of appellants could not have been
declared null and void as has been done by the High Court.
Alienation made by Rangammal during her lifetime after the
death of Palaniappa Chettiar was fully covered by paragraph
3 of the Will as noted above.
61.We are thus of the view that the decision of the High
Court in so far as in declaring the alienation made by Smt.
Rangammal after the death of Palaniappa Chettiar during her
lifetime as null and void deserves to be set aside. Thus
alienation made by Smt. Rangammal by registered sale deeds
as noticed by the High Court in favour of appellants needs
to be deleted from the list of the properties as described
Page 67 67
in the plaint and they shall not be included in the trust
property by virtue of the Will deed dated 27.09.1968. We,
however, add that said deletion is only with regard to
alienations made by Smt. Rangammal and not to the
alienations made by defendant no. 4 & 5. The Declaration
made by the High Court in so far as alienations made by
defendant no. 4 & 5 as null and void are maintained.
Creation of Trust by Will dated 27.9.1968
62.The High court has elaborately dealt with the matter of
creation of Trust by Will in paragraphs 79 to 80 of the
judgment.
63.While noticing the nature and contents of the Will, we
have noted above that in the life time of survivor
charities have to be carried out from the income derived
from properties without alienating the same. With regard to
the charities, the Will states that during life time of
testator and testatrix the properties shall be managed by
themselves and desired charities be carried out either
jointly or individually and in case testator and testatrix
Page 68 68
are not in a position to carry out the charity during their
life time a committee consisting of three members shall
perform charity. Following statement in the Will is
relevant:
“During our life time we shall
manage the property ourselves, do the
desired charities either jointly or
individually.
In case we are not in a position to
carry out the desired charities during
our life time, a committee consisting of
the following authorities shall be formed
to carry out the following charities:.”
64.A complete reading of the Will indicates that although
the testator and testatrix intended to utilise their
properties to carry out charities after their life, the
Trust as contemplated by the Will to come in operation in
following manner:
(1)During the life time of
testator/testatrix in the event they
were not in a position to carry out
the desired charity the committee
consisting of the Endowment
Commissioner, Revenue Divisional
Officer, Gobichettipalayam and
District Munsif, Gobichettipalayam
shall carry out the charities.
Page 69 69
(2)After the death of both testator and
testatrix, the committee of three
members as noted above shall perform
the charities.
65.There is no pleading or material on record to indicate
that during life time of Palaniappa Chettiar or Rangammal
at any point of time they expressed their inability to
carry out the charity or had requested the three members’
committee to carry out the charity. Thus, above eventuality
as contemplated by the Will never came into existence
during the life time of Palaniappa Chettiar and Rangammal
but as per provisions of the Will dated 27.9.1968 on the
death of survivor i.e. Rangammal on 27.12.1980, the three
members committee was obliged to carry out the charities
and the Trust came into operation.
Will dated 27.11.1980
66.The trial court framed specific issue No.13 to the
following effect:
Page 70 70
“13.Whether the Will dated 27.11.1980
executed in favour of the defendants 4,5
is genuine and valid ? Whether Chinnammal
@ Rangammal had executed that document in
a sound and disposing state of mind ?
67.Issue No.13 was dealt with in great detail by the trial
court after considering the entire documentary and oral
evidence on records. Defendant Nos.4 and 5 have examined
the testators as DW.2 and DW.4, scribe as DW.3 and a
SubRegistrar for proving the Will as DW.6.
68.After considering the oral evidence the trial court
held that the Will is not proved. The trial court noticed
several suspicious circumstances and discrepancies and it
was held that Ex.D109 has not been executed by Rangammal
in a sound and disposing state of mind and the same is not
a true and valid document. Defendant Nos.4 and 5 had filed
A.S. No.606/1989 challenging the judgment of the trial
court. The said appeal was elaborately considered by the
High Court in its judgment in paragraphs 86 to 114. The
High Court came to the conclusion that Will dated
27.11.1980 alleged to have been executed by Rangammal is
not a true and genuine Will of her. The said conclusion has
Page 71 71
been arrived at by the High Court after considering entire
evidence on record. We find no infirmity in the aforesaid
conclusion. The appeal filed by defendant Nos. 4 and 5 has
rightly been dismissed. We see no reason to interfere in
the judgment of the High Court so far as dismissal of
A.S.No.606 of 1989.
Reliefs
I.We have come to the conclusion that Smt. Rangammal
testatrix has the absolute right to deal with the
properties mentioned in the Will and alienations made by
her during her life time are saved by the Will and the
judgment of the High Court holding sales in favour of the
appellant as null and void is unsustainable and is hereby
set aside. Civil Appeal Nos.5924 of 2005, 5925 of 2005 and
5926 of 2005 are partly allowed and following sale deeds
are deleted from the description of the property in the
plaint. The Trust shall not include following sale deeds:
Page 72 72
(i)Sale deed in favour of Dr. K.S. Palanisami,
defendant No.13 dated 11.5.1979, Schedule II, Item No.15
and 16.
(ii)Sale deed in favour of defendant Nos.4 and 5 dated
19.9.1972 and 30.9.1972, second Schedule, Item Nos. 5 and 6
(Ex.B28 and Ex.B29).
(iii)Sale deed dated 24.3.1977, first Schedule, Item
No.6, in favour of Thirugnanasambandam, defendant No.7
(Ex.B116) and
(iv)Sale deed in favour of Dr. M.R. Subbian dated
20.2.1970, Schedule II, Item No.2 and 7 (Ex.B114).
We, however, make it clear that the judgment of the
High Court declaring sale deeds executed by defendant Nos.4
and 5 as null and void is maintained. All alienations made
by defendant Nos.4 and 5 are null and void and those
properties shall be treated as part of the Trust property.
II.Civil Appeal No. 6469 of 2005 stands dismissed.
Page 73 73
III.The directions issued by the High Court in paragraph
116 are maintained subject to directionsI as made above.
Judicial Officer having jurisdiction over the case who has
been directed by the High Court to frame the scheme for the
Trust shall frame the scheme expeditiously preferably
within a period of three months from the date a copy of
this judgment is produced before him. It goes without
saying that all steps for identification, protection and
management of Trust property shall be undertaken by all
concerned.
69.All the appeals are decided accordingly.
.....................J.
( A. K. SIKRI )
.....................J.
( ASHOK BHUSHAN )
New Delhi,
March 09,2017.
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