Kochu Govindan Kaimal and Others vs Thayankoot Thekkot Lakshmi Amma

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeals Nos. 5 and 6 of 1955

Decision Date: 1 October, 1958

Coram: P.B. Gajendragadkar, A.K. Sarkar, T.L. Venkatarama Ayyar

In this matter the Court recorded that the petition was filed by Kochu Govindan Kaimal and several other persons against Thayankoot Thekkot Lakshmi Amma and additional respondents. The judgment was rendered on 1 October 1958 by a Bench comprising Justice P. B. Gajendragadkar, Justice A. K. Sarkar and Justice T. L. Venkatarama Aiyyar. The case was cited as 1959 AIR 71 and appeared in the 1959 Supplement to the Supreme Court Reports. The dispute arose under the provisions of the Indian Succession Act and centered on a will that had been executed jointly by three testators. The headnote of the decision described the will as containing a clause that declared all movable and immovable property acquired jointly or separately by the testators, as well as any future acquisitions, would be held under their control and dealt with as they saw fit until their deaths. The will further provided that certain bequests were to be made to designated persons, and that if the executants transferred or alienated any of the properties, either jointly or severally, before death, the beneficiaries would retain rights only over the remaining property. After the death of two of the three testators, the surviving testator claimed entitlement to the entire property on the basis that the instrument operated as a transfer of each testator’s individual property to the others as joint tenants. The Court held that the instrument was a testamentary disposition by the three testators, taking effect upon the death of each testator, and that it functioned as three separate wills combined into one. Accordingly, the property interests of the testators were held as tenants-in-common, and the legatees named in the will would become entitled to the share of the testator who died, rather than to the whole estate.

The Court noted that the appeals arose from civil appeals numbered 5 and 6 of 1955, which were filed against the judgment and decree dated 15 September 1952 delivered by the Madras High Court in second appeals numbered 2256 of 1947 and 2545 of 1948. Those judgments themselves arose from the decree of 19 September 1946 of the Subordinate Judge of Kozhikode in appeal suits numbered 336 and 180 of 1946, which were in turn based on the decree dated 9 October 1945 and 29 June 1946 of the District Munsif Court of Chowghat in original suits numbered 131 and 158 of 1945. Counsel for the appellants was instructed by a senior advocate, while the respondents were represented by counsel appearing on their behalf. The judgment delivered by Justice T. L. Venkatarama Aiyyar identified the central issue for determination as whether the surviving testator, Kesavan Kaimal, who had been one of the three executants of the will dated 10 February 1906, acquired entitlement under that will to the properties that formed the subject matter of the appeals. The will in question was succinct and began with a declaration that it had been executed on 28 Makaram 1081 M.E., corresponding to 10 February 1906, by the three parties named Kunhan Kaimal, Kesavan Kaimal and Theyi Amma. The declaration set out that all current and future movable and immovable property acquired jointly or separately by them would be held under their possession and control until death, and that after death the property would pass to the children of Kalliani Amma, Thona Amma, and the deceased Narayani Amma, together with their descendants. This factual and procedural background formed the basis for the Court’s analysis and subsequent ruling on the rights of the surviving testator under the joint will.

The will in dispute relates to the properties that are the subject of these appeals. The will was executed on the 28th day of Makaram in the year 1081 of the Malayalam Era, which corresponds to 10 February 1906, and it was signed jointly by three testators: Kunhan Kaimal, described as the son of Karayamvattath Katbayakkal Kunhu Kutti Amma; Kesavan Kaimal, described as the son of Theyi Amma; and Theyi Amma herself, described as the daughter of Nani Amma of Etathiruthi Amsom and Etamuttan Desom in Ponnani Taluk. The deed of the will contains several substantive clauses. First, the testators agreed that all movable and immovable property that they had acquired, whether jointly or separately, up to the date of the will and any property they might acquire in the future, as well as any property that might devolve upon them, would remain in their possession and under their control until their deaths, and that they could deal with such property as they saw fit. Second, they provided that after their deaths the property would pass to the children of Kalliani Amma – namely Kali and Kunhu Kutty – the children of Thona Amma – namely Parukutty, Kunhunni, Kochu Govindan and Ramar – and the children of the deceased Narayani Amma – namely Kunhunniri, Kuttiparu and Lakshmikutty – together with the descendants of those children and any future issue thereof, who would hold the property as heirs and legal representatives in equal shares. Third, the will expressly prohibited the named heirs from making any claim to the property before the death of the testators. Fourth, the testators stipulated that if, before their deaths, they transferred or alienated any portion of the property, either jointly or severally, the named heirs would retain rights only in respect of the remaining portions, and the transferred portions would be excluded from the heirs’ rights. Fifth, the will further provided that after the deaths of the testators, only the aforesaid legal representatives and any persons born thereafter would have any right of claim or entry upon the entire movable and immovable property belonging to the testators. The will was signed in the presence of witnesses, with the signatures of Kunhan Kaimal, Kesavan Kaimal and Theyi Amma. Of the three testators, Theyi Amma died first; the precise date of her death does not appear in the record and is not material to the present dispute. Subsequently, Kunhan Kaimal died at some time in 1930. Kesavan Kaimal contends that, by survivorship, he became entitled to all of the property disposed of by the will, including the share that had belonged to Kunhan Kaimal. Relying on that claim, he effected several transfers: on 14 October 1938 he conveyed seven items of property, three of which had belonged to Kunhan Kaimal, to a person named Sankarankutti Kaimal; and on 16 October 1944 he transferred another three items, also belonging to Kunhan Kaimal, to Kalyani and Vijayan. Those conveyances gave rise to two separate litigations, which have now been consolidated into the present appeals. The legatees under the will dated 10 February 1906 subsequently instituted proceedings identified as O.

In 1945 the plaintiff instituted suit number 131 in the Court of the District Munsif at Chowghat, then within the Province of Madras, seeking recovery of possession of three parcels of land that had earlier belonged to Kunhan Kaimal. The plaintiff asserted that, following the death of Kunhan Kaimal in 1930, the parcels vested in the plaintiff as legatees under the will executed by the deceased. Defendants numbered one to three appeared as representatives of the mortgagees who held a mortgage of one hundred rupees that had been created over the same parcels on 3 February 1901. Defendant six was identified as Kesavan Kaimal, while defendants four and five were introduced as persons claiming title to the suit properties under a deed of transfer dated 16 October 1944 executed by defendant six. Defendants four, five and six contested the plaintiff’s claim and argued that a correct construction of the will showed that the properties of Kunhan Kaimal passed to Kesavan Kaimal on the former’s death in 1930, leaving the plaintiff without any legal title. The District Munsif rejected that contention and decreed in favour of the plaintiff. Two appeals were filed against the decree, namely appeal numbers 179 and 180 of 1946, before the Court of the Subordinate Judge at Calicut; the former was filed by defendants four and five and the latter by defendant six. The Subordinate Judge adopted the District Munsif’s construction of the will and dismissed both appeals. Dissatisfied, defendant six then preferred appeal number 2256 of 1947 before the High Court of Madras, challenging the decree.

On the basis of a deed of transfer dated 14 October 1938, Sankarankutti Kaimal commenced suit number 158 in 1945 in the same District Munsif Court at Chowghat, seeking recovery of possession of three parcels of land, one of which was owned outright by Kunhan Kaimal and the remaining two being co-owned by him and others. In his plaint, the plaintiff alleged that an oral lease of the properties had been granted to the first defendant and to a woman named Kali Amma, whose legal representatives were defendants two and three, and that the defendants were in arrears of rent and were contesting his title, thereby justifying his claim to eject them. Defendant four in this suit was identified as Kesavan Kaimal, the vendor from whom the plaintiff claimed title. The defendants, who had also been plaintiffs in the earlier suit number 131, pleaded that under the will they were entitled to all of Kunhan Kaimal’s properties, that the alleged oral lease was false, and that the plaintiff’s action was barred by limitation. The District Munsif accepted all the arguments of defendants one to three and dismissed the suit. An appeal, numbered 336 of 1946, was then lodged before the Subordinate Judge of Ottapalam, who affirmed the District Munsif’s decision on every issue. The plaintiff subsequently filed appeal number 2545 of 1948 in the High Court of Madras. Both of these second appeals were subsequently listed for hearing.

The matter was argued before Justice Raghava Rao, who examined the construction of the will in question. He held that, when properly interpreted, the will operated to vest all of the properties referred to in it in the three testators as joint owners. Consequently, after the successive deaths of Theyi Amma and Kunhan Kaimal, the surviving interest passed to Kesavan Kaimal. Justice Raghava Rao further concluded that the transfers effected by Kesavan Kaimal on 14 October 1938 and on 16 October 1944 were legally valid. As a result of these findings, the two appellate proceedings that had been pending were allowed. The suit for redemption, identified as Original Suit No. 131 of 1945, was dismissed, while the suit for ejectment, Original Suit No. 158 of 1945, was decreed in favour of the plaintiff. The present appeals were filed against that judgment after a certificate was obtained from this Court under Article 136. The only issue that required determination in the present appeals was whether the will, as drafted, conferred joint ownership of all the properties covered by it upon the three testators.

Having heard full arguments on the point, the Court reached the conclusion that the will did not create such joint ownership and therefore the High Court’s contrary judgment could not be sustained. The will had been executed by three individuals, each of whom owned certain properties by their own acquisition. In addition, the three also possessed some properties that they had acquired together, but the legal description of those jointly held assets was as tenants-in-common, not as joint tenants. Each testator, if he or she had drafted a separate will, would have been entitled to bequeath his or her own property, and the legatees named in such a separate will would unquestionably inherit those particular assets. In the present case the intended legatees were the same persons for each testator, which led the three to execute a single joint will rather than three separate documents. Nevertheless, the instrument remained a will by which each testator bequeathed the property that belonged to him or her, so that on the death of any one testator the legatees named in the will would succeed to the deceased’s share. The respondents had argued, and the High Court had accepted, that the will should be read as a present-time transfer by the individual testators of all their separate property to themselves as joint tenants. Such a construction would amount to an inter vivos transfer, not a testamentary disposition. The term “will” is universally understood to denote a disposition that takes effect only upon the death of the testator. Accordingly, the executants could not have intended an inter vivos transfer. Furthermore, a document intended to operate as a present transfer would be required to be stamped under the Stamp Act, but the instrument in question was unstamped. An examination of the recitals in the will revealed no language by which the testators divested themselves of their individual ownership and vested it collectively in themselves. Thus, the Court found no basis for reading the will as creating joint tenancy and held that the High Court’s interpretation was untenable.

In examining the language of the will, the Court noted that the wording “all the movable and immovable properties acquired jointly and separately by us till now, and those which we may be so acquiring in future and those which have devolved on us and those which we may yet be obtaining shall be held by us in our possession and under our control” does not, in its plain sense, create an implication that future acquisitions could be subject to a present-time disposition. The Court found it difficult to conceive how property that might be acquired at a later date could constitute the subject-matter of a disposition that is intended to take effect immediately. Instead, the true purpose of the clause, the Court held, appears to be to underline that the execution of the will does not diminish the testators’ existing rights over their property, an indication that the instrument was meant to operate as a testamentary disposition rather than as an inter- vivos transfer. This view is reinforced by clause three of the will, which expressly authorises the testators to alienate the properties either jointly or severally. The Court explained that if the intention had been to create a bundle of property that was jointly owned in such a way that any single testator could not alienate his share, then an alienation by one testator alone would have been legally incompetent. Consequently, the language of the will, when read in its entirety, supports the interpretation that the testators retained the capacity to dispose of their respective shares independently, consistent with a will that takes effect upon death.

The Court further observed that the learned Judge at the lower level had placed considerable weight on the fact that the will addressed not only the separate properties of the testators but also what was described as “joint properties,” and that a single disposition was made with respect to all of them. The Court considered this reasoning to be founded on a misreading of the will’s recitals. The document never mentions any pre-existing joint properties; rather, it refers to properties that were acquired jointly by the testators, a distinction that is legally significant. Such jointly acquired assets would be held by the parties as tenants-in-common, each possessing a distinct share that would pass as a separate interest upon death. The respondents also argued that it could not have been the intention of Theyi Amma, one of the testators, to favour the legatees under the will over her own son, Kesavan Kaimal, who was the youngest of the testators, and therefore the will must be read as giving her son a right to all the properties. The Court rejected this contention, observing that if Kesavan Kaimal himself could bequeath his property to the legatees, there was nothing abnormal in his mother also bequeathing her share to the same legatees, who were recognised as heirs of the testators under the applicable Marumakkat-tayam law. Counsel for the respondents attempted to prove, by reference to subsequent conduct, that the parties themselves understood the will to create a joint estate. It was submitted that, based on that belief, Kesavan Kaimal had dealt with the properties of the other testators as his own after their deaths, and that the behaviour of the remaining members of the tarwad, including the plaintiffs, reflected a similar belief. This alleged understanding was supported by citing the proceedings in E. A. No. 320 of 1938, which the respondents sought to use as evidence of a shared interpretation of the will.

In the suit designated S. C. No. 480 of 1933, the factual background was that a person named Kunhunni Kaimal obtained a decree against Kesavan Kaimal. In order to enforce that decree, Kunhunni Kaimal organised the sale of certain tarwad properties, purchased those properties himself and subsequently took possession of them. Following this, the members of the tarwad filed an application identified as E. A. No. 320 of 1938, invoking Order 21, Rule 100, and requested that the properties be redelivered to them on the basis that the decree and the associated sale proceedings did not bind them. The application was dismissed. In the dismissal order, the District Munsif observed that, under the will dated 10 February 1906, Kesavan Kaimal possessed the authority to transfer the properties in question. The respondents in the present proceedings sought to rely on that dismissal order as establishing res judicata in their favour. However, the lower courts rejected that contention and the point was not reiterated before the present Court. The respondents now attempted to use the earlier dismissal order to demonstrate that the tarwad members had never contested Kesavan Kaimal’s title to the properties dealt with by the 1906 will. In response, the appellant referred the Court to a partition deed dated 16 May 1915 and a mortgage deed dated 4 March 1926, both of which named Kesavan Kaimal as a party. Those instruments, according to the appellant, indicated that the family members, including the appellant, understood the will to mean that the testators held the properties covered by the will in separate and exclusive ownership. The Court held that even if any significance could be attached to those considerations, once the language of the will is found to be clear and unambiguous, evidence of the parties’ subsequent conduct cannot be admitted to limit or modify its meaning. Accordingly, the Court concluded that the terms of the 10 February 1906 will are clear, and that the parties’ later conduct, which was sought to be introduced, must be treated as wholly inadmissible. The Court further expressed the opinion that the will dated 10 February 1906 is precisely what it purports to be—a will and nothing more. It does not create any inter-se rights among the testators; rather, it merely transfers title to the properties disposed of by the will to the designated legatees upon the death of each testator. In this analysis, the will must be regarded as a testamentary disposition made by the three testators, each operating on the death of the individual testator, effectively constituting three separate wills combined in a single document. Although a joint will is an unusual arrangement, it is not unknown to law. The Court cited the authority in Halsbury’s Laws of England, Hailsham’s Edition, volume 34, page 17, paragraph 12, which defines a joint will as a single document executed by two or more testators, disposing either of their separate properties or of jointly owned property.

In this case the Court observed that English law does not recognise a joint document as a single will. Instead, such a document operates on the death of each testator as if it were his own separate will disposing of his own property, and therefore functions in effect as two or more distinct wills. The Court pointed out that a comparable statement of the law appears in Jarman on Wills, 8th edition, page 41. Further, the Court relied on the observations of Farewell J. in the case of Duddell in re. Roundway v. Roundway (1), describing the principle that a joint will may be given effect when two persons agree to make a joint disposition. According to that authority, on the death of the first of the two persons the joint instrument is admitted to probate as a disposition of the property that this first person possesses. On the death of the second person, provided that no later will has been executed, the same instrument is admitted to probate as the disposition of the second person’s property.

The respondents argued that the will in question could be construed as a mutual will. The Court rejected that contention, stating that a mutual will requires the testators to confer reciprocal benefits upon each other, typically by each naming the other as legatee, so that the parties act simultaneously as testator and legatee. Where the legatees are different individuals from the testators, the Court held that a mutual will cannot arise. Consequently, the Court found that there was no bequest by the testators to themselves, and nothing in the wording of the will supported such a claim. The Court further noted that accepting a mutual-will construction would conflict with the respondents’ position that an inter- vivos settlement had transformed separate properties into joint property.

Applying this reasoning, the Court concluded that on the death of Kunhan Kaimal his property passed to the legatees named in the will dated 10 February 1906. Accordingly, neither Kesavan Kaimal nor any transferees under the subsequent deeds could lay claim to those properties. The Court therefore allowed the appeals, set aside the decrees of the High Court, restored the orders of the lower courts, and awarded costs throughout. (1) [1932] 1 Ch. 585, 592. Appeals were allowed.