Narayanan v. Sankunni — 1953 DIGILAW 181 (KER)

Judgment :- 1. The plaintiff and defendants 1 and 2 are the sons of Krishnan by his wife Kali. The 3rd defendant is the sister of the plaintiff. In 1107 there was a partition between Krishnan, Kali and their sons by which the common properties were divided and the sons were given their shares. The parties are Makkavazhi Ezhavas of Cochin. In the partition deed Ext. V provision had been made for certain amounts to be paid to the 3rd defendant and to one Ammu the daughter of the deceased sister of the plaintiff. It was also provided in Ext. V that after the death of Krishnan and Kali, the properties that would be left by them were to be divided among the three sons, the plaintiff, the 1st defendant and the 2nd defendant in equal shares after giving the 1st defendant Rs. 300/-. Krishnan died in 1119 and Kali in 1121. It is stated that the properties mentioned in schedules A to D were left by them and the suit is for partition of the same. The bronze vessel mentioned in the E schedule was said to belong to the plaintiff and that was retained by the 2nd defendant. He wanted the return of the same or the value thereof. A schedule items 1 to 8, the outstanding in B schedule items 1 to 19 and C schedule debts were said to be the properties left behind by the father and the remaining properties were left by the mother. After the death of the father, there was an attempt to divide his properties. Though the mediators prepared a partition deed, it was not accepted by all the persons due to some difference of opinion. Some properties were however left in the possession of each of the sons. The properties in schedules B, C and D were respectively money due to Krishnan, the movables owned by him and the ornaments belonging to Krishnan and Kali. The plaintiff wanted to have these properties divided and the accounts between parties settled. The 3rd defendant had not been originally made a party to the suit. She got herself impleaded on her own application and she claimed to be a co-sharer with the sons under the provisions of the Thiyya Act. The plaintiff wanted to have these properties divided and the accounts between parties settled. The 3rd defendant had not been originally made a party to the suit. She got herself impleaded on her own application and she claimed to be a co-sharer with the sons under the provisions of the Thiyya Act. Her claim was opposed be the three sons saying that, even before the promulgation of the Thiyya Act, there was a testamentary disposition of the properties of Krishnan and Kali by introducing a provision in Ext. V itself in 1107. 2. The first defendant had stated that items 1 to 4 in the A schedule were leased out to him by his father on a pattom of 125 paras of paddy per year. Two items of properties held on Verumpattom by the father remained to be partitioned and the same were to be included in the plaint. All the items of immovable properties except items 1 to 4 and all the movables belonging to the father and mother were with the 2nd defendant. He was not in possession of any of the items in C and D schedules as mentioned in the plaint. The 2nd defendant had represented to him that the ornaments with the mother were given by her to her daughters their children. The attempted partition of the father's properties fell through because of the difference of opinion between the parties. He had spent Rs. 563 and odd for the funeral ceremonies and Adiyanthirams of the mother and he was to get the same from the estate. He was also to get Rs. 300 provided for in Ext. V. 3. The 2nd defendant stated that because he was physically and mentally unfit to manage the properties allotted to him under Ext. He had spent Rs. 563 and odd for the funeral ceremonies and Adiyanthirams of the mother and he was to get the same from the estate. He was also to get Rs. 300 provided for in Ext. V. 3. The 2nd defendant stated that because he was physically and mentally unfit to manage the properties allotted to him under Ext. V, the father himself was managing the same, that the father had acquired properties with the income therefrom, that he had spent money for the treatment of the mother and also for the funeral ceremonies of the father and mother, that he was to get back the same with interest at 6 per cent per annum, that the movables mentioned in the plaint which were said to belong to parents were not with him, that the bronze vessels in E schedule did not belong to the plaintiff but that it belonged to him, that after the attempt to divide the father's properties through the help of the mediators fell through, the mother ascertained the yield from the properties and divided them among the sons so that a re-allotment of those properties was necessary, that he had no objection to the division of the mother's properties and that a decree was to be passed as prayed for by him. 4. The 3rd defendant contended that there was no agreement that the properties left by the parents should be taken by the sons only, that she was a co-sharer with her brothers, that she was the sole heiress of Kali, and hence entitled to get all the properties left by Kali, that she was one of the heirs of her father and hence entitled to get a share from his properties with the income thereon from the date of death of the father. 5. A.S. 417 of 1950 is by the 2nd defendant and A.S. 438 of 1950 by the 3rd defendant against the decree of the lower court. The plaintiff has filed a memorandum of objections in A.S. 417/50 praying for reversing the decree of the lower court in so far as it was against him. 6. The lower court found that the 3rd defendant was not entitled to any share in the suit properties, as the direction in Ext. The plaintiff has filed a memorandum of objections in A.S. 417/50 praying for reversing the decree of the lower court in so far as it was against him. 6. The lower court found that the 3rd defendant was not entitled to any share in the suit properties, as the direction in Ext. V amounted to a testamentary disposition by the father and mother, that there was no division of the father's properties after his death as contended by the 2nd defendant, that there were some movables belonging to the father in the possession of the 2nd defendant, that they were to be divided, that the bronze vessel belonged to the plaintiff, that the funeral expenses of the father were met by the 2nd defendant and that of the mother by the 1st defendant, that the others were to contribute their share and that a declaration of the share of the properties had to be given as prayed for in the plaint. 7. It has first to be considered whether the 3rd defendant is entitled to a share in the properties left by the father and the mother. If they had died intestate then certainly 3rd defendant would be entitled to a share in those properties by virtue of the provision in the Thiyya Act of 1115, Cochin relating to Makkathayee Ezhavas. But in Ext. V there is a clear and definite provision that the properties left by the father and mother would be divided equally between the sons after giving the first defendant Rs. 300 in addition. It was argued by the 3rd defendant's learned Advocate that the said provision in Ext. V would not amount to a testamentary disposition and he relied for that position on Shyam Pratap v. Collector of Etawah, AIR 1946 PC 103. There the holder of an impartiable estate had executed an instrument and called it a will in which it had been stated thus: "Today K has given his son M to me in adoption and I have taken him in adoption. After my death, my adopted son shall be the 'gaddi-nashin' and the owner of my entire movable and immovable property. After my death, my adopted son shall be the 'gaddi-nashin' and the owner of my entire movable and immovable property. After my death he shall, like myself, have all the powers, M is yet a minor; therefore during his minority, my mother B who was my guardian during my minority and who managed the entire estate very well, shall remain the guardian of my adopted son and shall manage the entire estate. I have therefore, executed this will while in a sound state of body and mind and after full deliberation". It was held that this document will not amount to a will within the definition of the Succession Act, that the words 'after my death, my adopted son shall be the gaddinashin and owner of my entire movable and immovable property' taken out of their context, would no doubt operate as an effective gift, but taking the document as a whole the only operative part of it was the appointment of a guardian and the rest of it was narrative. The reason given for this conclusion was that even without the will the adopted son would take the entire estate, and so it was not the disposition of the property that was contemplated in the said will, and hence it cannot take effect as a will. 8. But in the present case no doubt when the document Ext. V was executed in 1107 the daughter was not a heir to the father under the then existing law as laid down in Govindan v. Raman, 10 C.L.R. 322 and Sankaran v. Kailasa Iyer,10 CLR 90, two Full Bench decisions. It had been stated in Ext. V that Rs. 300 must in the first instance go to one of the sons and the remaining properties alone was to be divided among the three sons including that son. It is therefore an effective disposition of the properties and no objection can be taken to it. 9. Another objection was that a joint will by the father and mother was not enforceable. Joint wills are all along recognised in all jurisdictions. Jethabai Gokaldas v. Parshotam Havsa, ILR 45 Bom. 987 and Minakshi Ammal v. Viswanatha Aiyar, ILR 33 Mad. 406, are in support of this view. That is recognised in England as would be seen from paragraph 12, page 17 of Halsbury's Laws of England, Vol. 34. Joint wills are all along recognised in all jurisdictions. Jethabai Gokaldas v. Parshotam Havsa, ILR 45 Bom. 987 and Minakshi Ammal v. Viswanatha Aiyar, ILR 33 Mad. 406, are in support of this view. That is recognised in England as would be seen from paragraph 12, page 17 of Halsbury's Laws of England, Vol. 34. It was stated there that: "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 properties. It is not, however, recognised in English law as a single will. It operates on the death of each testator as his will disposing of his own separate property, and is in effect two or more wills". As held in Sankara Pillai v. Aiyappan Nair, 1953 KLT 749, and Mytheen Kunju v. Ummer Kutty, 1945 TLR 279, following the decisions of the Privy Council in Krishna Rao v. Sundara Siva Rao, ILR 54 Mad. 440 and Satindra Nath v. Jatindra Nath, AIR 1935 PC 165, a will need not be in any particular form and it is sufficient if it contains the testamentary wishes of the deceased. It can be made known in a partition deed or in some other proceedings in which the testator is a party of his intention as to how the property is to be divided provided the other formalities are complied with. The decision in Ouseph v. Kochurothamma, 1123 CLR 75 is also in support of this view. Thus the direction in Ext. V by Krishnan and Kali as to how their properties were to be disposed of after their death would take effect as a will executed by them. Being so, the 3rd defendant was not entitled to a share of the properties left by them. Hence A.S. 438 of 1950 filed by her is to be dismissed with costs. Dismissed.