Sunday, March 19, 2017

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: (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.B-28 and Ex.B-29). (iii)Sale deed dated 24.3.1977, first Schedule, Item No.6, in favour of Thirugnanasambandam, defendant No.7 (Ex.B-116) and (iv) Sale deed in favour of Dr. M.R. Subbian dated 20.2.1970, Schedule II, Item No.2 and 7 (Ex.B-114). 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. III. The directions issued by the High Court in paragraph 116 are maintained subject to directions-I 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.

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.5924 OF 2005
THROUGH LRS.                                             … APPELLANT

AND OTHERS                                   … RESPONDETNS


                        CIVIL APPEAL NO.5925 OF 2005
AND OTHERS                                   … RESPONDETNS


                        CIVIL APPEAL NO.5926 OF 2005
AND OTHERS                                   … RESPONDETNS


                        CIVIL APPEAL NO.6469 OF 2005
AND OTHERS                                   … RESPONDETNS

                               J U D G M E N T
      These appeals have been filed against the common  judgment  dated  7th
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

2.    Civil Appeal No.5924 of 2005 has been filed  by  Dr.  K.S.  Palanisami
who was defendant No.13 in the Original Suit. 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

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 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
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  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   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.D-109,  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.
(F)   Against the judgment of the trial court dated 2nd 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
7th 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
(G)   The High Court disposed of both the  Appeal  Suits  in  the  following
“116.In the result,

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.

A.S. No.606 of 1989 stands dismissed. The finding of the Trial Court on  the
issue No.13 framed by it stands confirmed.
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
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.A-5) have 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.A-5 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  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.
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  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  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.

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 “carva-cutantiram” 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

8.    Learned counsel for other  appellants  have  also  adopted  the  above

9.    Shri Ganesh in support of  Civil  Appeal  No.6469  of  2005  submitted
that the High Court failed to note  that  Will  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   plaintiffs-respondents   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  15th
July, 1931 where he disposed of  substantial  part  of  his  properties  for
charity. Although,  his  above  Will  was  superseded  on  15th  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 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:

Whether the suit filed by the plaintiff was barred under Section 108 of  the
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 ?

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?

Whether Will dated 27.9.1968 contemplated that after the  death  of  one  of
the spouse the surviver 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?

Whether alienations made by  Chinnammal  @  Rangammal  after  the  death  of
Palaniappa Chettiar were in violation of the Will and invalid ?

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 ?

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

The relief to which, if any, the appellants are entitled in these appeals.


13.   Learned counsel for the appellant submitted that  suit  filed  by  the
plaintiff being barred under Section 108  of    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  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
plaintiff-respondent  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  management  of  a
religious institution. Section 5 on which reliance has been  placed  is,  as

“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 sub-section (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 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

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.


19.   The points No. 2, 3, 4 and 5 being inter-related are  taken  together.
Before we proceed to consider the 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 27-9-1968

The Registration of the Will executed by Palaniappa Chettiar and Rangammal:

Doct. No. 76/1968:

Sri Ramajayam

      “This Deed of Will executed on  this  27th  day  of  September,  1968,
corresponding to Tamil 11th day of Purattasi Keelaga year by  N.  Palaniappa
Chettiar  son  of  Sruvalur  Angampalayam  Narayana  Chettiar,  residing  at
Veerapandi Village Cusba, Gobichettipalayam  taluk-1  and  Chinnammal  alias
Rangammal wife of Palaniappa Chettaiar and daughter of Karuppanna  Chettiar-
2 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  under-mentioned
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 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 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

      In case we have not collected the 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 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 19th Edition (Sweet & Maxwell) has defined  joint
Will and mutual Will in para 1-011 and 1-012 in following manner:

"1-011. 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 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. ”

1-012.      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 affected  by  the  trust  imposed  so  as  to  give  effect  to  the

22.   Halsbury's Laws of England 5th 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 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 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

"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

The case must be decided by the laws of this country.   The  will  was  made
here; the parties lived here; and the funds are 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.

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

25.   Chief Justice Sir Arnold White after referring to 'Theobald on  Wills'
stated as follows:

“...........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
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 co-testator.  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  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,  8th  Edition,
page 41. The following observations  of  Farewell,  J.  in  Duddell  in  re;
Roundway v. Roundway, 1932-1 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 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.”

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

28.   The suit of plaintiff was  dismissed  by  the  learned  Munsif,  which
decree was set-aside 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 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,  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 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
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,  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 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 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  (1854-57)  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 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

“...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:-

“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 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 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

“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 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 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.

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.

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

“...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  under-mentioned
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.

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. 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)

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 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

“ ...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.

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  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 itself to curtail the full  implication  and  import
of the expression ‘absolutely’  when  it  is  used  with  reference  to  the

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  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
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:-

“...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...”

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  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
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 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 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:

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.

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:

“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 Sub-Registrar 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.D-109 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 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.


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:

      (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.B-28 and Ex.B-29).

      (iii)Sale deed dated 24.3.1977, first Schedule, Item No.6,  in  favour
of Thirugnanasambandam, defendant No.7 (Ex.B-116) and

      (iv)  Sale deed  in  favour  of  Dr.  M.R.  Subbian  dated  20.2.1970,
Schedule II, Item No.2 and 7 (Ex.B-114).

      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.

III.  The  directions  issued  by  the  High  Court  in  paragraph  116  are
maintained subject to directions-I 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.

                                                   ( A. K. SIKRI )

                                                 ( ASHOK BHUSHAN )
New Delhi,
March 09,2017.

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