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PETITIONER: MANI MANI AND ORS.

       Vs.

RESPONDENT: MANI JOSHUA

DATE OF JUDGMENT: 21/03/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C.

CITATION:  1969 AIR 1311            1969 SCR  (1)  71  1969 SCC  (1) 824

ACT: Indian  Succession Act (39 of 1925),  s.  180-Election-Scope of.

HEADNOTE: By  a  settlement  deed  of  1935,  the  owner  of   certain properties  settled three items of property on his wife  and two  sons, the first appellant and respondent one  item  for each.  Mutations were effected of the properties so  settled in favour of the donees.  Thereafter, he had executed  three wills.   In  his  last will and  testament,  there  are  two recitals that he had cancelled the previous settlement  deed and wills and that the last will was to be the only document which should govern the disposition of his properties.   The testator,  by  that  will, also purported  to  give  to  the respondent five items of property.  Those five items did not include  the  item settled on the respondent  in  1935,  but included  certain properties which had been settled in  1935 on  the wife and the first appellant.  The testator  further stated  that the entire residue was bequeathed to the  first appellant, but did not state specifically that he was giving away  to  the  first appellant the  property  which  he  had settled  on the respondent in 1935.  After the death of  the testator  the  respondent  filed a suit  claiming  the  item settled  on him in 1935, on the basis that he had  a  -right under  the  will  to get the five items  bequeathed  to  him thereby,  in  addition to the item settled on him  in  1935, because, by reason of the. settlement in his favour it could not form the subject matter of the bequest in favour of  the first appellant. On  the question whether by accepting the benefit under  the will by taking the five items bequeathed to him thereby, the respondent  exercised  his right of election  and  precluded himself from asserting any right to the item settled on  him in 1935. HELD  :  Under  s. 180 of the Indian Succession  Act,  if  a legatee has been given any benefit under a will and his  own property  has also been disposed of by that very  will,  the legatee must elect either to confirm such disposition or  to dissent from it, and in the latter case, he must  relinquish all his claims under the will if he choose to retain his own

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property.  The presumption being that a testator intends  to dispose  of  only his own property, general words  will  not usually be construed so as to include a particular  property over  which  he  had no disposing  power,  unless,  such  an intention appears on the face of the will either by  express words or by necessary implication. [78 B-C] In  the present case, the terms of the will  indicate,  that the testator thought he could revoke the settlement deed and treat  it as -non-existent, and that he meant to dispose  of the  entire estate including the properties which  had  been the  subject matter of the settlement of 1935.  The  respon- dent, therefore, was put to election and could not claim the property  settled on him in 1935, if he wished’ to take  the benefit under the will. [76 C-D, 77 A-C, 79 G] Miller  v. Thurgood, 10 L.T.R. 255, Whitley v.  Whitley,  54 E.R.  1104;  Re.   Allen’s  Estate,  Prescott  v.  Allen   & Beaumont,  [1945] 2 All.  E.R. 264; and Re : Booker,  Booker v. Booker, 54 L.T.R. 239, 242, referred to. 72

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 683 of 1966. Appeal  by special leave from the judgment and  order  dated January 3, 1965 of the Kerala High Court in Appeal Suit  No. 86 1960. S. V. Gupte and A. S. Nambiar, for the appellants. Sarjco  Prasad, P. Kesava Pillai, M. R. K. Pillai  and  Lily Thomas, for the respondent. The Judgment of the Court was delivered by Grover,  J.  This  is an, appeal by  special  leave  from  a judgment  of  the  Kerala  High  Court  by  which  the  suit instituted  by  the respondent for  recovery  of  properties described in Schedule A of the plaint and for mesne  profits etc.  was  decreed in reversal of the decree  of  the  trial court, dismissing the suit. Uthupu  Mani who died in the year 1943 had three sons.   The eldest son Uduppu died sometime between 1929 and 1935.   The second  son Joshua is the respondent herein, the  appellants being the’ third son Mani Mani and Mariamma their mother and the  widow of Uthupu.  Uthupu left some daughters  also  and appellant  No. 3 Mani Achamma is one of the daughters.   The controversy  in the suit out of which the appeal has  arisen was  confined to a residential house in an area of 10  cents in  Kottayam town.  This property along with  several  other properties  originally belonged to Uthupu who  made  certain settlements  followed  by wills.  The first  settlement  was made  in  the  year 1102 ME corresponding to  1927  AD  when Uduppu was alive and Mani Mani was not born.  On October  9, 1935  by  means  of another registered  document  (Exh.   A) called  Udampady  Uthupu  settled  properties  thus:   Those comprised  in  A  Schedule  were given  to  Mariamma,  in  B Schedule to Joshua and in C Schedule to Mani.  The Schedules Contained the following properties :               "To Mariamma (A Schedule)               Building constructed as Hall and the Cart-shed               on 2 cents.               To Joshua (B Schedule)               Storied building and 30 cents garden land.               To Mani Mani (C Schedule)               Four rooms facing West and 36 cents of  garden               land." It  appears  and it has been so found  that  mutations  were effected  of  the  properties so settled in  favour  of  the

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donees.  Later on Uthupu executed a will which he put in  an envelope  and  deposited it in the office  of  the  District Registrar, Kottayam in January 1943. 73 He  executed  a  second will in April 1943 and  kept  it  in custody of the District Registrar.  He executed a third will (Exh.  3)  on  May  31, 1943 which was  his  last  will  and testament.   In  this  will he made a  mention  of  the  two settlements and the two previous wills and declared that the last   will  would  be  final  and  operative.   His   other declarations  and  statements in the will (Exh. 3)  will  be presently  considered  as  the  entire  controversy  in  the present  litigation  centers  on a  correct  assessment  and appraisal  of  their  true  scope and  effect.   It  may  be mentioned that by this will he left five items of properties to  Joshua.   These  items  included  the  properties  in  C Schedule  which had been given to Mani by the settlement  of 1935  and  the cartshed oil two cents of land  contained  in Schedule  A  which  had  been  given  to  Mariamma  by  that settlement.  There was no specific mention in the will (Exh. 3)  to the B Schedule properties which had been  settled  on Joshua in 1935. In  1955 Joshua filed a suit laying claim to the B  Schedule properties  settled on him in the year 1935.  His  case  was founded  principally  on  the  allegation  that  B  Schedule properties  which had been settled on him in 1935 vested  in him by virtue of the settlement and he was the owner thereof and that the five items of properties which were left by the will  (Exh. 3) were quite independent of and  separate  from the  aforesaid  B Schedule properties.  In  other  words  he asserted that he had a right under the will to get the  five items  bequeathed  to  him  therein in  addition  to  the  B Schedule  properties  which had been settled on him  in  the year 1935 and which could not form the subject matter of any bequest  by  Uthupu by reason of the said  settlement.   The position  taken  up  on behalf of  Mariamma,  Mani  etc.-the defendants--was that the plaintiff had accepted the  benefit under  the  will  by taking the  five  items  of  properties bequeathed  to  him thereby which  included  the  properties originally allotted under the settlement of 1935 to Mariamma and  Mani.  He had thus exercised his right of  election  to take  the properties under the will and was  precluded  from asserting  any  right to properties given to him  under  the settlement of 1935. A number of issues were framed on the pleadings of the  par- ties.   The  main question for consideration,  however,  was whether the settlement of 1935 had been given effect to  and whether the plaintiff’s suit merited dismissal on account of the applicability of the doctrine of election embodied in s. 180 of the Indian Succession Act.  The trial court held that the  settlement  of  1935  had  been  given  effect  to  and mutations  had  been duly made in the  revenue  register  in accordance with the settlement deed.  It was found that  the plaintiff  had  obtained  title to  and  possession  of  the SupCI/69-6 74 suit properties comprised in B Schedule in the settlement of 1935.   The suit was dismissed on the ground that  the  will (Exh.  3)  clearly  showed that the  testator  purported  to cancel the arrangement by the deed of settlement of 1935 and had made bequests under the will to the plaintiff of some of the  properties which had been settled on Mariamma and  Mani in  the year 1935.  This attracted the rule contained in  S. 180  of  the  Succession Act and  since  the  plaintiff  had elected  to  accept the benefit under the will  he  was  not

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entitled  to  claim any right on the basis of  the  deed  of settlement of 1935. The High Court acceded to the argument pressed on behalf  of Joshua  who  was the appellant before it that  on  a  proper reading  of the will it could not be held that the  testator professed  to dispose of the suit properties which had  been gifted  to the plaintiff by means of the settlement deed  of 1935.  The High Court was influenced by the fact that  there was no specific mention of these properties in the will  and according to it mere general words of disposition could  not be  taken  to  contain  -an  intention  to  deal  with   the properties   belonging  to  a  third  party,   namely,   the plaintiff.   The  following  part of  the  judgment  may  be reproduced :               "Having  due regard to these passages  in  the               various   text-books   based   upon   judicial               decisions and which have been placed before me               by Mr. T. S. Krishnamoorthy lyer and Mr. M. U.               Issac in my view, the decision rendered by the               teamed  Subordinate Judge that section 180  of               the Indian Succession Act applied and that the               appellant  has  elected to  take  the  benefit               under  the will and therefore he cannot  claim               any  further benefits on the basis of Ex.   A,               cannot  certainly be sustained.  So far  as  I               could see, there is no specific disposition of               the  property already given to  the  plaintiff               under Ex.  A, by the father in Ex. 3. No doubt               the  father has dealt with an item  which  was               given under Ex.  A to the first defendant  and               a part of the item given to the 2nd  defendant               under  Ex. A in Ex. 3. If at all the  question               of   the   doctrine  of  ,election   and   the               applicability  of  section 180 of  the  Indian               Succession  Act comes into play, in  my  view,               the election will really have to be made, not,               by the plaintiff, but by really defendants one               and two." As the applicability of the doctrine of the rule of election will depend on a correct and true reading of the will  (Exh. 3)  we  proceed  to  notice  the  main  recitals  and  other prominent  features to be found in it.  The testator in  the very  beginning referred to the two settlements made by  him in the years 1927 and 1935 and 75 the  two wills executed by him in the year 1943  which  were deposited  with the District Registrar, Kottayam.   He  said that  by  the  first  will which  he  had  executed  he  had invalidated  the two deeds of settlement.  He then made  the second will as he thought that some changes were  necessary. The third will, (Exh. 3), was made because he felt pity  for Joshua  whom  he  had  apparently left  no  or  very  little property by -his previous wills.  This is ’what the testator said               "But, since there originated in me an idea, on               seeing   the  desperate  look  and   repentant               attitude  of my son Joshua, that it is  highly               necessary   to   nullify   certain    historic               statements made in the previous will and  also               to  alter the conditions, such as share of  my               assets will not be given to Joshua and to  his               children  in case he begets any, laid down  by               me owing to the ill-will I had towards Joshua,               the  eldest among the male children I have  at               present and towards the members of his  wife’s

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             house because of certain reasons which I don’t               now  purport to describe herein, this will  is               executed  again  afresh; and this  alone  will               come into force after my life-time." He further said that he had seven children alive at the time when  the will was made, namely two sons and five  daughters out  of whom two were married.  He directed that  after  his death  his wife Mariamma would take +,he entire income  from his  properties for meeting family expenses and  payment  of revenue dues etc.  Then he made dispositions about  payments in  cash  on  the occasion of the  marriages  of  his  other daughters, with the exception of Achamma, who was  described to  be  weak  in  health, and in  his  opinion,  should  not contract  matrimony.   An amount of’ Rs. 3,000/- was  to  be deposited in her name which she was entitled to withdraw  if she  was married.  During the period she remained  unmarried she  was  entitled  to take interest  on  that  deposit  for personal   expenses.    He  gave  other   directions   about arrangements for her residence etc. in case she remained un- married.   Then  he proceeded to make  the  provision  about bequests in these words :               "Though  I  had provided in my  previous  will               that my eldest son Joshua shall have only some               right in the nature of a life interest over my               assets  in  respect  of some  petty  items  of               profits;............ Therefore I have forgiven               him  and I hereby allow him to enjoy for  ever               the immovable properties described  hereunder;               and  my younger son Mani Mani shall  alone  be               the  sole heir of the remaining entire  assets               belonging  to  me.   But, my  two  sons  shall               become entitled to the properties allotted               76               to  them  only  after  my  two  daughters  are               married  and the deposit is made in  Achamma’s               name  and all the litigations in which I am  a               party  are ended; and till that time  my  wife               Mariamma  shall  take  and  conserve  all  the               profits as described above in the status of an               undivided family."               The only other declaration or statement in the               will which deserves notice is the following               "This  will is executed by resolving as  these               and totally changing all the deeds  registered               by  me  prior to this and the  Wills  kept  in               custody;  and this Will alone shall, unless  1               act otherwise, be and ought to be in force  in               future.  " Now  it is quite clear that the testator was  somehow  under the  impression that he was competent to cancel  and  revoke not  only  the previous wills but also the  two  settlements including  the one made in the year 1935.  It  appears  that although  by  the  registered deed of  1935  he  had  gifted certain properties to his wife and two sons he thought  that he could undo what he had done by making a will by which  he left  virtually no property to Joshua since he  was  annoyed with  him.   That is apparently the reason  why  he  clearly stated  in the will (Exh. 3) in the very beginning  that  he had executed a will "on 9th Makarom this year in  accordance with law, invalidating the above two deeds." He  relented in favour of Joshua and that is the reason  why he made the will (Exh. 3) but his state of mind continued to be  the  same,  namely,  he considered  that  he  was  fully competent  and entitled to cancel all  previous  settlements and  wills and start, as if it were, on a clean slate.   The

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detailed  bequests which he made (Exh. 3) indicate  that  he meant  to  dispose  of  the  entire  estate  including   the properties  which  had  been  the  subject  matter  of   the settlement  made  in the year 1935.  There  are  two  strong indications  in the will (Exh. 3) of his having  dealt  with the entire property which he thought he could dispose of  or in  respect  of  which  he could  make  bequests  and  leave legacies  on the footing that no title had passed to any  of the  donees under the settlement of 1935.  The first is  the recital  both  in the beginning and towards  the  concluding part  of Exh. 3 that he had cancelled the  previous  settle- ments  and  wills  and that the only  document  which  would govern  the disposition of properties would be Exh. 3.  Even if it be assumed, as has been suggested, by learned  counsel for   Joshua   -respondent-that   the   declaration    about invalidating the two deeds of settlement was confined to the first  will  executed in January 1943,  the  statement  made towards the conclusion of the 77 will  (Exh. 3) leaves no doubt that the testator  sought  to revoke  not only the previous wills but also the  registered deeds  which clearly meant the deeds of settlement  executed in 1927 and 1935 respectively.  The second significant  fact is that the testator purported to give to Joshua five  items of property which included certain properties which had been given  by the settlement of 1935 to Mariamma and  Mani.   If the  testator did not want to make any disposition of  those properties  which formed the subject matter of gift in  1935 there  was  no  reason why he should have  given  to  Joshua properties  which had been gifted to Mariamma and Mani.  All this  could have happened only if the testator was  treating the  settlement of 1935 as non-existent having been  revoked by him. We are satisfied that a correct reading of the  will (Exh.  3)  yields the only result that the  testator  Uthupu treated  the entire properties which had formed the  subject matter  of  gift  or otherwise as his  and  which  could  be disposed of by him as he liked.  The High Court was in error in disagreeing with the trial court on this matter. The  argument of learned counsel for the respondent is  that the testator predominently intended to make better provision for Joshua with whom he had been annoyed for various reasons and  whom he had left comparatively less or no_ property  by the wills executed prior to Exh. 3. It is suggested that the testator could not have intended to have taken away what had already  been  gifted to Joshua in the year  1935  of  which mutation  had taken place and possession had passed.  It  is further  pointed out that the testator did not  specifically say  that the properties which had been gifted to Joshua  in 1935  were now being left by the will (Exh. 3) to  Mani.   A great  deal of reliance has been placed on Ike statement  in the  text books on which the High Court relied  and  certain decisions  for the view that no case for election can  arise where  the  testator does not dispose of the  properties  in question  specifically and has merely used general words  of devise.   In  such circumstances, it has  been  stated,  the testator  should  be  taken to have disposed  of  only  that property which was his own and which he was entitled to deal with and bequeath in law.  It is urged that, in the  present case,  the  testator  had already made  a  valid  and  legal settlement in 1935 of the suit property.  He could not  have thus  dealt  with  or bequeathed that property  and  in  the absence  of express and specific mention in Exh. 3  that  he was doing so the rule of election would not be attracted. The circumstances in which election takes place are set  out in  s. 180 of the Indian Succession Act.  According  to  its

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provisions,  "where  a  -person by  his  will  professes  to dispose of some- 78 thing  which  he has no right to dispose of, the  person  to whom  the thing belongs shall elect either to  confirm  such disposition or to dissent from it, and, in the latter  case, he  shall give up any benefits which may have been  provided for him by the will." The English law, however, applies  the principle  of compensation also to election.  It  means  the electing legatee has to compensate the disappointed  legatee out  of  the property given to him.  As pointed out  in  the Indian  Succession Act by N. C. Sen Gupta, p. 295, the  rule which  has  been embodied in s. 180 does not  recognise  the principle  of  compensation.  Under its  provisions  if  the legatee  has been given any benefit under the will  and  his own property has also been disposed of by that very will  he must relinquish all his claims under the will if he  chooses to retain his property.  It is not disputed, in the  present case,  that if the testator has, by Exh. 3, disposed of  the property  which had been gifted to Joshua the rule  embodied in s. 180 would become applicable and Joshua cannot take the property  which had been gifted to him if he has  chosen  to retain  the  property bequeathed to him by  the  will.   The question is whether the testator having omitted to state  in Exh. 3 that he was giving away the properties which had been gifted  to  Joshua in the year 1935 to Mani to whom  only  a residuary  bequest of the entire remaining assets  had  been made the principle of election will become inapplicable. Our  attention has been invited on behalf of Joshua  to  the following  observation of the Master of Rolls in  Miller  v. Thurgood (1) :               "If  a testator, having an undivided  interest               in  any  particular property, disposes  of  it               specifically, and gives to the co-owner of the               property   a  benefit  under  his  will,   the               question  of  election  arises.   But  if   he               disposes  of  it, not specifically,  but  only               under  general words, no question of  election               arises." But as pointed out in para. 1097, p. 592, Halsbury’s Laws of England, Vol. 14, in order to raise a case of election under a  will it must be clearly shown that the testator  intended to  dispose of the particular property over which he had  no disposing power.  This intention must appear on the face  of the will either by express words or by necessary  conclusion from   the  circumstances  disclosed  by  the   will.    The presumption, however, is that a testator intends to  dispose of  his own property and general words will not  usually  be construed  so as to include other property.  In  Whitley  v. Whitley(1) the wife of the testator was entitled to a  share of the produce of the R. estate, which had been directed  to be sold.  By (1) 10 L. T. R. 255. (2) 54 E. R. 1104. 79 his  will  the  testator gave all  "his  share,  estate  and interest"  in the R. estate to his daughter and benefit  out of  his own estate to his widow.  It was held that the  will raised a case for election as against the widow.  The Master of  the  Rolls  (Sir John Pomilly) said  that  the  testator intended  to dispose of the property by will which  was  not his  but  belonged  to his wife and  she  having  taken  and enjoyed the benefit provided for her under his will must  be considered as having elected.  The property, must, therefore go  as  if it had been the testator’s property.   This  case

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illustrates how the rule of election has been applied where, even  though, general words had been used but  by  necessary conclusion  from the circumstances disclosed by the will  it was  interred that the testator intended to dispose  of  the property  which  belonged  to  his  wife  and  not  to  him. According  to  the footnote in Halsbury’s Laws  of  England, Vol.  14 (supra), in the case of a will one may even  gather an  intention by the testator to include property  belonging to  another  in  a gift of residue for it  is  necessary  to construe  a will as a whole.  Reference has been made to  Re Allen’s  Estate, Prescott v. Allen and Beaumont(1), where  a gift  of the "residue of my property" was construed  as  the residue  of  the testatoes ostensible  property.   A  fairly strict  approach in such cases has been indicated by  Chitty J., in Re Booker, Booker v. Booker(2) in these words : .lm15 "  A great safeguard in applying that doctrine is  this-that you  are  not merely to strain words to  make  them  include -that which does not belong to the testator; but you must be satisfied  beyond  all  reasonable doubt  that  it  was  his intention  to include that which was not his own,  and  that you  cannot  impute to him after having read  his  will  any other intention." It  is  thus  necessary  to look at the  will  and  read  it carefully  which has been done by us and we have no,  manner of  doubt  that Uthupu, the testator,  intended  to  include properties gifted to Joshua by the settlement of 1935 in the bequest which he made to Mani of the entire residue.  Joshua was  thus  put  to  election  and  could  not  claim   those properties if he wished to take the benefit under the will. In the result -the appeal is allowed and the judgment of the High Court is set aside and that of the trial court restored with costs in this Court. V.P.S.                        Appeal allowed. (1)[1945] 2 AII.E .264. (2)  54 L. T, R. 239, 242. 80