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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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2 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 3 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

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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 4 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 5 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

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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 6 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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7 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 8 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

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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: 9  "  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 10 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.