JUDGMENT
Varghese Kalliath, J.
1. S.A. No. 765 of 1980 : This appeal is by the plaintiffs. The suit was one for partition. Plaintiffs claim 3/12 shared The contesting defendants resist the claim. They say that the plaintiffs are not entitled to any share. This defence is based on a will Ext. B13. The trial court upheld the contention of the defendants. It dismissed the suit as against the plaintiffs; nevertheless it passed “a preliminary decree decreeing shares to second defendant and defendants 3 to 5. The defeated plaintiffs filed an appeal. The appellate court dismissed the appeal and confirmed the judgment and decree of the trial court. Now the plaintiffs appeal.
S.A. No. 638 of 1980 :
2. This appeal is by defendants 1 and 3 to 5. In this appeal, the appellant maintains that the second defendant is not entitled to the share now given, namely 3/9 share in the property. This contention of defendants 1 and 3 to 5 was not accepted by the trial court. The appellate court also agreed with the findings of the trial court on this aspect. Hence defendants 1 and 3 to 5 appeal.
3. Facts are these :– The properties in dispute originally belonged to a tevazhi of the Lakshmikutty Amma. She died in 1964 leaving three children — two sons and one daughter. The sons are Velayudha Menon, the second defendant and Appa alias Sankara Menon. Malukutty is the only daughter. Sankara Menon died as an insane person in 1969. Malukutty died in 1970.
4. Malukutty had two sons, Raghava Menon and the first defendant Narayana Menon. Raghava Menon died in 1969. Plaintiffs are the wife and children of Raghava Menon. First plaintiff is the wife, second plaintiff, the daugther and the third plaintiff is the son. First defendant is the son of Malukutty, the second defendant is the son fo Lakshmikutty Amma, third defendant is the wife of the first defendant, defendants 4 and 5 are the son and daughter of first and third defendants.
5. Now about will Ext. B13, which formed the stereobate of the defence: This will was executed by three persons — Appa alias Sankara Menon, Malukuttya and Narayana Menon — the first defendant. Sankara Menon being an insane person was represented by. his sister Malukutty. The tenor of the will indicates plainly and clearly that it is a joint will.
5A. The courts below found that the will is operative and effective in regard to the properties of Malukutty and the first defendant Narayana Menon. I may incidentally say that the first defendant also died pending the suit. By the will, the properties have been bequeathed to defendants 3 to 5 and they claim the properties of Malukutty, Narayana Menon and Sankara Menon. The plaintiffs contended that the whole will is bad and invalid. The courts below held that the will in respect of the properties of Sankara Menon cannot be given effect to and to that extent the will be bad.
6. The learned counsel for the appellants in S.A. No. 765 of 1980 submits that the courts below ought to have held that the entire will is inoperative and invalid The counsel raised three points before me to shore his submission. He submits that :
(a) execution of a joint will in respect of thavazhi properties is not permissible in law;
(b) No surgery even if it is a radical surgery to remove the malignant part of the will (the bequest in respect of the properties of Sankara Menon) can prevent the ultimate infraction of the will. He says that the malignancy was inoperable; it infracts the whole will. The will in its entirety is morbid, void and invalid;
(c) The will has not been proved properly.
7. In order to substantiate his first point, the counsel submitted that Sankara Menon, Malukutty and Narayana Menon formed a truncated tavazhi. He says so because the other members of the tavazhi got separated by a decree in a suit, O.S. 797/61 and Raghava Menon by Ext. A1 partition deed. I have no doubt that the severance of jointness of one or more members of a marumakkathayam tarwad does not ipso facto bring about a complete disruption of the tarwad. It is a long established and of applied principle of marumakkathayam law, which I should not seek to whittle away. Both the Travancore and Cochin Courts have recognised this principle. Vide Velayudhan Pillai v. Neelakanta Pillai, 10 TLT 778, Kunhikrishna Menon v. Rama Menon, 18 Cochin LR 521, Madhava Menon v. Kunchi Amma, 29 Cochin LR 503 and Lekahmikutty Amma v. Gopalakrishna Menon, 38 Cochin LR 5. The principle stated above has been accepted by the Madras High Court in Veattil Vellachi v. Gopalan, AIR 1944 Mad 407. In AIR 1944 Mad 407, Horwill, J. observed thus : —
“It is rather a different matter where certain members of a tavazhi divide themselves off from the tavazhy. By dividing themselves off, some children cannot compel their mother to divide herself from those children who prefer to remain joint with her.”
This position has been accepted by a Full Bench in Kuttimalu Amma v. Lakshmi, 1960 Ker LT 1201 : (AIR 1961 Ker 166) where it is observed thus : —
“Though a tavazhi cannot be created ad hoc on separation of one or more members from a tavazhi the remaining members may continue to remain joint as members of a truncated tavazhi.”.
8. There cannot be any dispute in regard to this question. But the difficulty for the appellants is that such a case of tavazhi (truncated tavazhi) and the impact of this tavazhi character of the property bequeathed under the will was not raised in the plaint. It seems that this point has never been argued before the courts below. But the counsel for the appellants submits the various aspects of this matter and I am told that he has raised this point in his appeal memorandum. Though it is not very clear from the appeal memo, it is possible to see an incidental reference in regard to this point. In the plaint, this point has not been raised and it seems that the averments in the plaint will only lead to an inference that the plaintiffs never based their claim on this point and the plaint proceeded on the basis that the properties which formed the subject-matter of the will were held by the three testators as their own properties held and enjoyed by them as co-owners. It is specifically stated that the properties are held and enjoyed by the three persons named in paragraph 3 of the plaint who were the testators of the will, which would plainly indicate that the plaintiffs had never thought of a plea on the basis of the existence of a truncated tavazhi. In this format of facts, I think I will not be justified at third tier stage to investigate the question and to hold that the properties that were the subject-matter of the will should be treated as tavazhi properties. I think that the case has to be proceeded on the basis that the properties dealt with in the will are not tavazhi properties. So, I hold that there is no merit in this point.
9. On the second point, the counsel submits that since the courts below have found that that part of the will in respect of the properties of Sankara Menon is malignant and so inoperative, being a joint will, this malignancy permeates the whole body of the will beyond the reach of the courts’ surgical blade to separate the good from the bad and would make the whole will ineffective and invalid. I have to examine the soundness of this point.
10. In examining the correctness of this point, I feel that I should first be informed of the significant character and the real nature of a joint will. I should delineate the legal and practical contours of it.
11. Theobald on Wills states a joint will is looked upon as the will of each testator and may be proved on the death of one. Halsbury’s Laws of England (Fourth Edition) Vol. 50, page 95 precisely states what is a joint will. There it is stated thus : —
“A joint will is a will made by two or more testators contained in a single document, duly executed by each by 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; 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 probates as his own will and on the death of the survivor, if no fresh will has been made, it is admitted to probate on the disposition of the property of the survivor.”
12. A jointly will, though for all apparent purposes, is a single testamentary instrument, constitutes or unites in the testamentary disposition of two or more persons. The document only evidences that two or more persons have executed their wills in a single document. A clear and better picture of the distinguish joint wills from mutual wills. Mutual wills as distinguished from joint are described as reciprocal wills. Reciprocity in the matter of bequests under the will is the sigil and signet of a mutual will. The testators should confer upon each other reciprocal benefits. This integrant is not necessary to make a joint will, since as I said earlier, a joint will is only the will of two or more persons in a single instrument. This idea of a joint will has been succinctly stated by Venkatarama Aiyar, j. in K. Govindan v. T.T. Lakshmi Amma, AIR 1959 SC 71. Venkatarama Aiyar, J. has compared a joint will and a mutual will in that decision. This, His Lordship did, only to spot-light the real content, scope and width of a joint will as opposed to a mutual will I feel that it is excusable to read two salient passages at some length from the judgment of Venkatarama Aiyar, J. for the clarity of its content and the vigour of its prose. The first passage reads at p. 75 :–
“In this view, the will must be held to be a testmentary 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.”
Next at p. 75 :–
“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.”
12-A. From the facts disclosed and from the tenor of the will in question, I have to hold that the will Ext. B13 is a joint will of three testators, Ext. B13 in fact and in effect plainly composes three wills executed by three testators in a single document. Each will has got its own identity and separate standing. So the will in regard to the properties of the insane person can be safely severed without causing any legal invalidity for the operation of the remaining part of the will and the disposition of the properties of the other two testators, Malukutty and Narayana Menon. This is what has been held by the courts below and it is perfectly legal and correct.
13. The counsel submitted that the will hag not been properly proved. The evidence in the case shows that sufficient evidence has been let in and both the courts have valued the evidence carefully and correctly and held that the will has been proved properly. I cannot in second appeal re-appreciate the evidence on this matter. Since I am now holding that the will is valid in regard to Malukutty and Naranaya Menon, I see no substance in this appeal. S.A. No. 765 of 1980 is only to be dismissed. I do so.
S.A. No. 638 of 1980.
14. Ext. B14 is the decree in O.S. 797/61 and Ext. B1 is the judgment in that suit. The suit was instituted by the second defendant. Decree was passed in terms of a compromise. That compromise decree was passed in violation of Order 23, Rule 3 and so that portion of the decree which offended Order 23 Rule 3 is without jurisdiction and will not operate against the parties concerned.
15. The appellate court has considered the matter and held that the contention raised by defendants 1 and 3 to 5 is unsustainable in law. It was found by the trial court as well as by the appellate court that the compromise decree cannot take in legally and validly the devolution of shares of defendants 1 and 2 in that suit since that was not a subject-matter of the suit O.S. 797/61. Counsel for the appellant submitted that the compromise decree should be treated as a family arrangement. I find it absolutely difficult for me in the circumstances to accede to the submission made by the counsel for the appellants that the decree should be treated as a family arrangement. The trial Court, for good reasons, held that it is not possible to treat the decree as a family arrangement. This finding of the trial court, the appellate court has also confirmed.
16. Though the confirmation by the first appellate court on a crucial fact found by the trial court insulates the verdict with no inerrability, but since absolute objective certainty is impossible in this imperfect world, there is plain and perfect justification on practical reasons to close the door when the first two judges concur in the factual conclusion at separate levels particularly in the wake of the tight rule of prohibition of overseeing by this court in second appeal the conclusions on facts by the appellate court made more stringent by the amendment to Section 100 of the Code of Civil Procedure. I see no substance in this appeal. It is only to be dismissed. I do so.
In the result, both the appeals are dismissed. In the circumstances of the case, I make no order as to costs.
