PETITIONER:
KOCHU GOVINDAN KAIMAL & OTHERS
Vs.
RESPONDENT:
THAYANKOOT THEKKOT LAKSHMI AMMA AND OTHERS
DATE OF JUDGMENT:
01/10/1958
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
CITATION:
1959 AIR 71 1959 SCR Supl. (1) 1
ACT:
Will- jointly executed by three testators-Construction-joint
tenants or tenants in common-Claim of entire properties by
survivor -Maintainability.
HEADNOTE:
A will executed jointly :by three persons contained, inter
alia, the following recitals:-" We have hereby settled and
agreed that all the moveable and immoveable properties
acquired jointly and separately by us till now, and those
which we may be so acquiring in future and those which have
devolved on us and those which we may yet be obtaining,
shall be held by us in our possession and under our control
and dealt with by us as we please till our death." There
were bequests in favour of certain persons and the will
provided that in the event of the executants effecting any
transfers or alienations of the said properties, either,
jointly or severally till their death, the aforesaid persons
shall have the right only in respect of the remaining items
of the properties. Two of the testators having died the
third claimed that he had become entitled by surviorship to
all the properties disposed of by the document on the
footing that it was in effect a transfer of all their
individual properties to themselves jointly as joint
tenants.
Held, that the document was a testamentary disposition by
the three testators of their properties operating on the
death of each testator on his properties, and was, in effect
three wills combined in one. The properties were held by
the testators at, tenants-in-common and the legatees
mentioned in the will would become entitled to the
properties of the testator who dies.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 5 and 6 of
1955.
Appeals from the judgment and decree dated September 15,
1952, of the Madras High Court in Second Appeals Nos. 2256
of 1947and 2545 of 1948,
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arising. out of the judgment and decree dated September 19,
1946, of the Court of Subordinate Judge of Kozhikode in
Appeal Suit Nos. 336 and 180 of 1946, against the judgment
and decree dated October 9, 1945, and June 29, 1946,
respectively of the Court of Districts Munsif, Chowghat, in
O. S. Nos. 131 and 158 of 1945.
B. K. B. Naidu, for the appellants.
V. Karunakara Menon and M. R. Krishna Pillai, for the
respondents.
1958. October 1. The Judgment of the Court was delivered by
VENKATARAMA AIYAR J.-The point for determination in these
two appeals is whether one Kesavan Kaimal who was one of
three executants of a will dated February 10, 1906, became
entitled under that will to the properties, which are the
subject-matter of these appeals.
The will is a short one, and is as follows:
” Will executed on 28th Makaram 1081 M. E., corresponding
to 10th February, 1906, jointly by Kunhan Kaimal, son of
Karayamvattath Katbayakkal Kunhu Kutti Amma, Kesavan Kaimal,
son of Theyi Amma and Theyi Amma, daughter of Nani Amma of
Etathiruthi amsom and Etamuttan desom in Ponnani Taluk. We
have hereby settled and agreed that all the movable and
immovable properties acquired jointly and separately by us
till now, and those which we may be so acquiring in future
and those which have devolved on us and those which we may
yet be obtaining shall be held by us in our possession and
under our control and dealt with by us as we please till our
death and that subsequent to our death, Kalliani Amma’s
children, Kali and Kunhu Kutty, Thona Amma’s children,
Parukutty, Kunhunni, Kochu Govindan and Ramar, and the
children of the deceased Narayani Amma, namely, Kunhunniri,
Kuttiparu and Lakshmikutty and their children and the
children who may be born to them as also the children who
may be born of them, shall as our heirs and legal
representatives, hold the said properties in their
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possession and enjoy them hereditarily in equal shares
amongst themselves.
2. Except after our death, the aforesaid persons shall not
lay claim to any of the properties belonging to us.
3. It is settled that in the event of our effecting any
transfers or alienations of the said properties. either
jointly or severally till our death, the aforesaid’ persons
shall have the right and freedom only in respect of the
remaining items of properties to the exclusion of those
items of properties included in the above transactions.
4. It is hereby further settled and agreed that subsequent
to our death, save our legal representatives aforesaid and
such of those as may be born hereafter, no other persons
shall have the right to claim to or right of entry upon the
entire properties moveable and immoveable found belonging to
us.
And we have signed herein in the presence of the undersigned
witnesses-
(signed) Kunhan Kaimal.
( ” ” ) Kesavan Kaimal.
(” ” ) Theyi Amma.”
of the three testators, Theyi Amma died first-the exact date
of her death does not appear and is not very material-and
Kunhan Kaimal died thereafter sometime in 1930. It is the
case of Kesavan Kaimal that in the events which had
happened, he had become entitled by survivorship to all the
properties disposed of by the will, including those of
Kunhan Kaimal, and on this footing he conveyed on October
14,1938, seven items of properties, of which three belonged
to Kunhan Kaimal, to one Sankarankutti Kaimal and on October
16, 1944, another three items of properties which belonged
to Kunhan Kaimal, to Kalyani and Vijayan. These transfers
led to the two litigations; which have culminated in the
present appeals.
The legatees under the will dated February 10, 1906,
instituted O. S. No. 131 of 1945 in the Court of the
District Munsif, Chowghat, then in the Province of Madras,
for recovery of possession of three items of properties
which had belonged to Kunhan Kaimal
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after redeeming a mortgage for Rs. 100 created over those
properties on February 3, 1901. The plaintiffs claimed that
on the death of Kunhan Kaimal in 1930 they had become
entitled to those properties as legatees under the will.
Defendants 1 to 3 represented the mortgagees. Defendant 6
was Kesavan Kaimal, and defendants 4 and 5 were brought on
record as persons claiming to be entitled to the suit
properties under a deed of transfer by defendant 6, dated
October 16, 1944. Defendants 4 to 6 contested the suit, and
pleaded that on a proper construction of the will, the
properties of Kunhan Kaimal survived to Kesavan Kaimal on
the death of the former in 1930, and that the plaintiffs got
no title to them. This contention was overruled by the
District Munsif, and the suit was decreed. There were two
appeals against this decree, A. S. No. 179 of 1946 and A. S.
No. 180 of 1946 in the Court of the Subordinate Judge,
Calicut, the former by defendants 4 and 5 and the latter, by
defendant 6. The Subordinate Judge agreed with the
construction put on the will by the District Munsif, and
dismissed the appeals. Against that decree, defendant 6
preferred S. A. No. 2256 of 1947 in the High Court of
Madras.
Basing himself on the deed of transfer dated October 14,
1938, Sankarankutti Kaimal instituted O. S. No. 158 of 1945
in the Court of the District Munsif, Chowghat, for recovery
of possession of three items of properties, of which one
belonged to Kunhan Kaimal absolutely and the other two’ to
him and others as co-owners. In the plaint, he alleged that
there was an oral lease of the properties to the first
defendant and to one Kali Amma, whose legal representatives
were defendants 2 and 3, that the defendants were in arrears
in the payment of rent, and were disputing his title to the
properties, and that he was therefore entitled to eject
them. Defendant 4 is Kesavan Kaimal, the vendor of the
plaintiff. The contesting defendants who were the same as
the plaintiffs in O.S. No. 131 of 1945 pleaded that under
the will they became entitled to all the properties of
Kunhan Faimal, that the oral lease was untrue, and that the
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suit was barred by limitation. The District Munsif found
all the contentions in favour of defendants 1 to 3 and
dismissed the suit., Against this decree, there was an
appeal, A. S. No. 336 of 1946, in the Court of the
Subordinate Judge of Ottapalam, and that was dismissed, the
Subordinate Judge agreeing with the District Munsif on all
the issues. Against his decree, the plaintiff preferred S.
A. No. 2545 of 1948 in the High Court of Madras. Both the
second appeals came up for hearing before Raghava Rao J. who
held that on its true construction the will operated to
vest, in the three testators all the properties covered by
it in joint ownership, that, in consequence, on the death
successively of Theyi Amma and Kunhan Kaimal, their interest
survived to Kesavan Kaimal, and that the transfers made by
him on October 14, 1938, and October 16, 1944, were valid.
In the result, both the second appeals were allowed, the
suit for redemption, O. S. No 131 of 1945, was dismissed,
and the suit in ejectment, O. S. No. 158 of 1945, was
decreed. Against this judgment, the present appeals have
been brought on a certificate granted by this court under
Art. 136.
The sole point for determination in these appeals is whether
under the will all the three testators became joint owners
of all the properties on which it operated. After hearing
the question fully argued, we have come to the conclusion
that that is not the effect of the will, and that the
judgment of the High Court contra cannot be supported.
There were three executants of the will. Each of them
possessed properties, which were his or her self-
acquisitions. They- also owned some properties which they
had jointly acquired, but their title to such properties was
as tenants-in-common and not as joint tenants. Each of them
would have been entitled to execute a will of his or her
properties, and if that had been done, the legatees named
therein would undoubtedly have been entitled to those pro-
perties. In the present case, the legatees who were
intended to take were the same persons, and it was for that
reason that the three testators instead of each executing a
separate will jointly executed it. It ist
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nevertheless, a will by which each testator bequeathed
properties belonging to him or to her, and therefore on the
death of each testator, the legatees mentioned in the will
would be entitled to the properties of the testator, who
dies.
The contention of the respondents which has found favour
with the High Court is that the will must be construed as a
transfer by the several testators of all their individual
properties to themselves jointly as joint tenants. That
would really be a transfer inter Vivos and not a will. The
word “will” is widely known and used, and it has a well-
understood significance as meaning a disposition which is to
take effect on the death of a person. The executants of the
will could not have therefore intended that it should
operate inter ViVOs. Moreover, if the document was intended
to take effect as a present disposition, it should have to
be stamped under the provisions of the Stamp Act, but the
will is an unstamped document.
Coming to the recitals in the will, there are no words by
which the executants thereof divest themselves of their
individual ownership and vest it in themselves jointly. It
is said that that could be implied from the words ” all the
movable and immovable properties acquired jointly and
separately by us till now, and those which we may be so
acquiring in future and those which have devolved on us and
those which we may yet be obtaining shall be held by us in
our possession and under our control “. We are unable to
read any such implication in those words. It is difficult
to imagine-how properties which were to be acquired in
future could form the subject-matter of a disposition in
praesenti. On the other band, the true purpose of this
clause would seem to be to emphasise that the execution of
the will does not affect the rights of the testators over
their properties, and that is an indication the it is to
operate as a will. The matter appears to us to be concluded
beyond all doubt by the terms of clause 3, which provides
that the testators could alienate the properties jointly or
severally. If the properties were intended to be impressed
with the character of joint property, an alienation by any
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one of them singly would be incompetent. In coming to the
conclusion to which he did, the learned Judge in the Court
below was very largely influenced by the fact that the will
dealt with, not only the separate properties of the
testators but also of their joint properties, and that there
was one disposition as regards all of them. But this
reasoning is based on a misconception of the recitals in the
will. The will does not refer to any joint properties of
the testators but to properties jointly acquired by them-
which is very different. They would hold these properties
as tenants-in-common, and their share therein would devolve
as their separate properties.
It was further argued for the respondents that it could not
have been the intention of Theyi Amma, one of the testators,
to benefit the legatees under the will in preference to her
own son, Kesavan Kaimal, and that, therefore, it must be
held that she intended that her son who was the youngest of
the testators should take all the properties. But if
Kesavan Kaimal could himself agree to bequeath his
properties to those legatees, we see nothing unnatural in
his mother also agreeing to bequeath her properties to them-
they being the heirs of the testators under the Marumakkat-
tayam Law. Learned counsel for the respondents sought to
rely on the subsequent conduct of the parties as showing
that they understood the will as conferring a joint estate
on the testators. It was said that it was in that belief
that Kesavan Kaimal was dealing with the properties of the
other testators as his own, after their death. It was also
said that the conduct of the other members of the tarwad,
including the plaintiffs, showed that they shared that
belief. And this was sought to be made out by reference to
the proceedings in E. A. No. 320 of 1938 in S. C. No. 480 of
1933. The facts were that one Kunhunni Kaimal obtained a
decree against Kesavan Kaimal in S. C. No. 480 of 1933, and
in execution of that decree, he brought some of the tarwad
properties to sale, purchased them himself and got into
possession. The members of the tarwad then filed an
application, E. A. No. 320 of 1938, under 0. 21, r. 100, for
redelivery of the
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properties to them on the ground that the decree and the
sale proceedings were not binding on them, and that was
dismissed. In the order dismissing the application, the
District Munsif observed that under the will dated February
10, 1906, Kesavan Kaimal had the power to transfer the
properties. This order was relied on in these proceedings
as operating as res judicata in favour of the respondents;
but that contention was negatived by the Courts below, and
has not been repeated before us. But these proceedings are
now sought to be relied on as showing that the members of
the tarwad did not dispute the title of Kesavan Kaimal to
the properties which were dealt with by the will.
As against this, the appellant referred us to a partition
deed dated May 16, 1915, and a mortgage deed dated March 4,
1926, to both of which Kesavan Kaimal was a party, in which
be and other members of the family had understood the will
in question as meaning that the testators held the
properties covered by the will in separate’ and exclusive
ownership. Whatever value one might attach to the above
considerations if there was any doubt or uncertainty as to
the meaning of the will, when once it is held that the
language thereof is clear and unambiguous, evidence of the
subsequent conduct of the parties cannot be admitted for the
purpose of limiting or controlling its meaning. In our
view, the terms of the will are clear, and the subsequent
conduct of the parties sought to be relied on must be
disregarded as wholly inadmissible. We are accordingly of
opinion that the will dated February 10, 1906, is what it
purports to be a will, and nothing else. It does not confer
any rights inter se on the testators; it only vests the
title to the properties disposed of by it in the legatees on
the death of the testators. In this view, the will must be
held to be a testamentary disposition by the three testators
of their properties operating on the death of each testator
on his properties, and is, in effect, three wills combined
in one.
A joint will, though unusual, is not unknown to law. In
Halsbury’s Laws of England, Hailsham’s Edition, Vol. 34, p.
17, para. 12, the law is thus stated:
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” 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 in
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, 8th Ed., p.
41. The following observations of Farewell J. in Duddell in
re. Roundway V. Roundway (1) are apposite:
“…. in my judgment it is plain on the authorities that
there may be a joint will in the sense that if two 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 be 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……….
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
document. 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 respon-
dents 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.
(1) [1932] 1 Ch. 585, 592.
2
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In the result, the appeals are allowed, the decrees passed
by the High Court are set aside, and those of the Courts
below are restored, with costs throughout.
Appeals allowed.