Mani Joshuva v. Mani Mani — 1965 DIGILAW 33 (KER)

Judgment :- 1. This appeal, by the plaintiff, challenging the decree of the learned Subordinate Judge, Kottayam, will have to be allowed because law is in his favour though it may not really accord with the real intentions of the testator namely his father whose expressions have been unfortunately not properly expressed in the Will Ext. P-3. 2. The plaintiff instituted the suit in question, for a declaration of his title over the plaint schedule properties and for recovery thereof with mesne profits. At this stage it may be mentioned that the claim related to properties mentioned in two schedules that is, A schedule and B schedule. But this Court is not now concerned with the claim of the plaintiff so far as B schedules is concerned. According to the plaintiff his father executed a settlement Ext. A, dated 23-2-1111, in and by which he made a gift of certain items of properties not only in favour of the plaintiff but also in favour of his other son and wife who are defendants 1 and 2 in these proceedings. 3. The father of the plaintiff and the first defendant, and the husband of the second defendant, appear to have owned several items of properties, but under Ext. A from and out of an extent of a property of 60 cents in Kottayam, the father settled 10 cents along with a house in favour of the plaintiff. The settler also, in and by the same document, settled another 5 cents from this area together with certain shop-buildings in favour of his second son namely the first defendant. In favour of his wife he settled about 9 cents of land together with certain buildings. 4. Out of the paddy land he appears to have owned, under Ext. A the father gave 30 cents to the plaintiff and 36 cents to the first defendant. The father appears to have executed two other Wills dated 9th Makaram 1118 and 14th Meenam 1118. But there is no controversy that those Wills stand revoked by the last Will and Testament executed by the father on 31-5-43 evidenced by Ext. 3. The father himself appears to have died very shortly after the execution of this Will. It may also be stated that the father had executed a Dhananischayam as early as 6-12-1102 under Ext. But there is no controversy that those Wills stand revoked by the last Will and Testament executed by the father on 31-5-43 evidenced by Ext. 3. The father himself appears to have died very shortly after the execution of this Will. It may also be stated that the father had executed a Dhananischayam as early as 6-12-1102 under Ext. 29; and there is again no controversy that no parties are now claiming any rights on the basis of that document because that has been given the go-by by the execution of the later document Ext. A. 5. Under the Will Ext. 3, the father has given 5 cents in favour of the plaintiff, which 5 cents had been originally settled under Ext. A on the first defendant. Under this Will the plaintiff was also given about 2 cents from and out of 9 cents which had been settled on the second defendant under Ext. A. These two Items comprised item 1 in the Will and along with those items the plaintiff was also given 4 other items. This court is not now concerned with those items at this stage. 6. The plaintiff instituted the suit for a declaration of his title and for recovery of possession of the 10 cents of properties together with the house which had been settled on him by his father under Ext. A dated 23-2-1111. The plaintiff's claim was that the bequest made by the father under Ext. B in his favour, is in addition to the properties that have been already settled on him under Ext. A. No doubt this aspect finds a place not in the original plaint filed by him but in the replication filed by the plaintiff. 7. The defendants raised the contention that Ext. A has not taken effect; and they also raised the further contention that inasmuch as the plaintiff had accepted the benefit under the Will, that is, by taking the properties which had been originally allotted under Ext. A in favour of the first and second defendants, he must be considered to have practically elected to stand by the Will and therefore he cannot base any rights any longer under the settlement deed Ext. A. It is, to this contention, that the plaintiff filed the replication wherein he took up the position that the bequest, under Ext. A in favour of the first and second defendants, he must be considered to have practically elected to stand by the Will and therefore he cannot base any rights any longer under the settlement deed Ext. A. It is, to this contention, that the plaintiff filed the replication wherein he took up the position that the bequest, under Ext. 3 in his favour is in addition to the items already settled on him by his father under Ext. A. The defendants also raised the contention that in any event, the plaintiff's claim is barred by adverse possession and limitation. 8. Two main questions arose for consideration at the hands of the learned Subordinate Judge namely (a) as to whether the settlement Ext. A has taken effect and (b) as to whether the plaintiff's suit has to be dismissed because of the doctrine of election contained in S.180 of the Indian Succession Act. There were several other issues no doubt, framed by the learned Subordinate Judge, namely as to whether the suit is barred by adverse possession and limitation and as to whether the plaintiff obtained title and possession on the basis of the settlement deed Ext. 2. So far as those questions are concerned, the findings of the learned Subordinate Judge are in favour of the plaintiff. In fact, on one of the crucial questions that was in controversy between the parties, namely as to whether Ext. A was acted upon and has taken effect or not, the finding on that aspect also, is in favour of the plaintiff. 9. The trial court has come to the conclusion that the evidence adduced in the case clearly supports the case of the plaintiff that the Udampady or the settlement Ext. A has taken effect and that there has been a mutation of name in the revenue registry in accordance with the settlement deed Ext. A. The trial court has also held that the plaintiff on the basis of Ext. A has obtained title and possession of the property. 10. The trial court also has negatived the plea raised by the defendants that the suit Js barred by limitation. So far as that is concerned it may be stated that the father died on 9-11-1118 and the suit itself has been filed within 12 years of the death of the father. 10. The trial court also has negatived the plea raised by the defendants that the suit Js barred by limitation. So far as that is concerned it may be stated that the father died on 9-11-1118 and the suit itself has been filed within 12 years of the death of the father. In any event the trial court has held that the plaintiff was also residing in the property till about 1121; and according to him he allowed his mother and sister to reside in the house and therefore their possession is only a permissive one. But whatever it is, the trial court is of the view that inasmuch as the plaintiff was in possession till 1121, and the suit having been instituted within 12 years from that date, there is no question of the plaintiff's claim being barred by adverse possession or limitation. 11. But the trial court dismissed the plaintiff's suit on the ground that by a reading of the Will Ext. 3, it will be clearly seen that the father has purported to cancel the arrangement evidenced by Ext. A and under the Will some of the properties which have been allotted to the first and second defendants, were bequeathed to the plaintiff. It is the further view of the learned judge that the properties, which are the subject of this litigation and which had been allotted to the plaintiff under Ext. A, must be considered to have been dealt with by the father under Ext. 3 and bequeathed in favour of the first defendant subject to a life estate in favour of the second defendant. 12. Therefore, the trial court is of the view that the principles embodied in S.180 of the Indian Succession Act come into play and in consequence the plaintiff must be considered to have elected to accept the benefit under the Will and therefore he was not entitled to claim any rights on the basis of Ext. A. It is really on this ground that the trial court has rejected the claim of the plaintiff, notwithstanding that it had held in favour of the plaintiff that Ext. A the settlement deed had taken effect and was in full force. 13. Mr. A. It is really on this ground that the trial court has rejected the claim of the plaintiff, notwithstanding that it had held in favour of the plaintiff that Ext. A the settlement deed had taken effect and was in full force. 13. Mr. T.S. Krishnamoorthy Iyer, learned counsel for the plaintiff-appellant very strenuously attacks the reasoning of the learned Subordinate Judge for coming to the conclusion that the doctrine of election, embodied in S.180 of the Indian Succession Act which has been relied upon to non-suit the plaintiff on the ground that it has no application whatsoever. The learned counsel pointed out by a reading of the various clauses in the Will Ext. 3, that there is absolutely no cancellation of the arrangement under Ext. A as wrongly assumed by the trial court. Alternatively the learned counsel pointed out that when the trial court itself has found that Ext. A has taken effect the mere recital by the father in Ext. 3 that the settlement deed Ext. A is cancelled is of no consequence whatsoever. The learned counsel also pointed out that a reading of Ext. 3 will clearly show that the property, which is the subject of this litigation and which has been settled on the plaintiff under Ext. A, has not been admittedly specifically dealt with by the father. The learned counsel also pointed out that a mere recital in Ext. 3 by the testator bequeathing all the rest of his properties outstanding with him after bequeathing 5 items in favour of the plaintiff, will not certainly enable the court to come to the conclusion that the testator was actually and in fact dealing with the property already settled on the plaintiff and which is the subject of this litigation. 14. In this connection the essential requisites which are necessary for the application of the doctrine of election and as enumerated in the various decisions as well as text-books were referred to by Mr. T.S. Krishnamoorthy Iyer. The learned counsel also pointed out that even according to the trial court, the property which is the subject of this litigation and which has been settled on the plaintiff under Ext. A, has not been specifically or expressly dealt with by the father in Ext. 3 and bequeathed in favour of the defendants. T.S. Krishnamoorthy Iyer. The learned counsel also pointed out that even according to the trial court, the property which is the subject of this litigation and which has been settled on the plaintiff under Ext. A, has not been specifically or expressly dealt with by the father in Ext. 3 and bequeathed in favour of the defendants. When that is so, the learned counsel urges that there is absolutely no warrant for the trial court to come to the conclusion that a general statement by the testator wherein he says that all his other properties are bequeathed to defendants 1 & 2 subject to certain conditions cannot certainly be understood as attributing an intention to the testator to deal with the properties belonging to the plaintiff on the basis of Ext. A. The learned counsel also pointed out that in order that S.180 of the Indian Succession Act will apply, the essential ingredients are that the testator must have professed to dispose of something which he has no right to dispose of and there must be a person to whom the thing disposed of belongs and a bequest must have been made under the Will to such a person. It is only under those circumstances, the learned counsel pointed out that there is the question of electing on the part of the person to whom the thing belongs and whose property has been dealt with by the testator really comes into the picture. In this case, according to the learned counsel, the testator never purported or dealt with any property of the plaintiff, as will be seen from the various recitals contained in Ext. 3. 15. Mr. M.U. Isaac, learned counsel for the defendants-respondents pointed out that an earlier arrangement entered into by the father under Ext. 29 dated 6-12-1102 has been given the go-by by the later execution of the settlement deed Ext. A. Ext. A itself, it will be seen, according to the learned counsel is executed subject to the various conditions mentioned in the said document. Rightly or wrongly, the learned counsel pointed out, the testator proceeded on the basis that he is entitled to cancel the arrangement evidenced by Ext. A. The evidence to that effect is furnished by the execution of two prior Wills referred to in Ext. 3 namely one executed on 9th Makaram 1118 and 14th Meenam 1118. Rightly or wrongly, the learned counsel pointed out, the testator proceeded on the basis that he is entitled to cancel the arrangement evidenced by Ext. A. The evidence to that effect is furnished by the execution of two prior Wills referred to in Ext. 3 namely one executed on 9th Makaram 1118 and 14th Meenam 1118. Those Wills admittedly referred to the revocation or the cancellation of the settlement Ext. A and the father, it will be seen, was not inclined to give any property to the plaintiff at all. But later on, on the basis that he is competent to cancel Ext. A, and also purporting to cancel the settlement deed Ext. A and treating the properties covered by the said document as his own, the testator very clearly alters the entire arrangement and makes a fresh arrangement regarding the distribution of the property in Ext. 3. The learned counsel pointed out that the plaintiff was well aware of the very clear recitals in Ext. 3 wherein the testator has categorically taken away the properties which have been given to the first defendant and a part of the properties given to the second defendant under Ext. A which really amounts to a cancellation of the settlement deed Ext. A. If that is so, the learned counsel pointed out that the plaintiff cannot still proceed on the basis that Ext. A is in full force and retain the property given to him under Ext. A and also try to get additional benefit under the bequest as per Ext. 3. That is, according to the learned counsel when once the plaintiff himself treats as cancelled the settlement effected in favour of the first defendant and second defendant, the plaintiff must be considered to accept that there is a total cancellation of Ext. A and therefore no rights can survive in favour of the plaintiff on the basis of Ext. A any longer. 16. A and therefore no rights can survive in favour of the plaintiff on the basis of Ext. A any longer. 16. The learned counsel also referred me to certain passages contained in text-books wherein it has been stated that the knowledge of the testator that the property belongs to him or not is absolutely immaterial so long as he has dealt with the property to which he has no title, and he has conferred some benefit under the will on the real owner of the property and that if the latter has chosen to accept the benefit conferred under the Will, the doctrine of election comes into full play. 17. In my view, the contentions of the learned counsel for the appellant will have to be accepted in the circumstances of this case. Before I proceed to consider the passages that have been referred it is really necessary to consider the exact recitals that have been made by the father in the Will Ext. 3. No doubt he refers to the fact that he had executed two other Wills on 9th Makaram 1118 and 14th Meenam 1118 whereunder he had cancelled the prior documents executed by him namely Ext. 29 and Ext. A. But under the Will Ext. 3 the father purports to cancel the two earlier Wills and also generally says that all registered documents executed by him will stand cancelled, and Ext. 3 will be the only document, on the basis of which the parties can claim rights in respect of the properties bequeathed thereunder. 18. On this recital very great reliance has been placed by Mr. M.U. Isaac, learned counsel for the respondent, in support of his contention that whether the father is entitled to cancel the arrangement evidenced by Ext. A, in law or not, he has proceeded on the basis that the settlement deed Ext. A is no longer in force and he treats the properties dealt with under Ext. A as his own and makes rearrangement. 19. Mr. T.S. Krishnamoorthy Iyer pointed out that there is no cancellation under Ext. 3 of the settlement deed Ext. A. On the other hand it will be seen that the father, in Ext. 3, gives specifically 5 items of properties to the plaintiff. A as his own and makes rearrangement. 19. Mr. T.S. Krishnamoorthy Iyer pointed out that there is no cancellation under Ext. 3 of the settlement deed Ext. A. On the other hand it will be seen that the father, in Ext. 3, gives specifically 5 items of properties to the plaintiff. No doubt one of those items takes in the 5 cents already given to the first defendant and 2 cents, out of a property given to the second defendant under Ext. A. The testator, under those circumstances according to counsel, when he makes the bequest "of all his remaining properties" can only be understood, in law as dealing with properties of which he is owner and so entitled to deal with as his own. So long as Ext. A stands, the learned counsel pointed out, and especially when the trial court itself has held that Ext. A has come into force, the action of the father purporting to cancel Ext. A is of no avail so long as it is not alleged that the plaintiff also was a consenting party to the said cancellation. Therefore the learned counsel pointed out that the view of the learned Subordinate Judge that there has been a cancellation of Ext. A, by the Will Ext. 3 is absolutely erroneous. Quite naturally the learned counsel has taken advantage of the finding recorded by the trial court, that under Ext. 3, it cannot certainly be stated that the property settled on the plaintiff under Ext. A, has been expressly allotted to the first defendant. If that is so, quite consistent with that finding, the learned counsel pointed out that the trial court should have held that the general expression bequeathing the rest of the properties by the testator and as contained in the Will Ext. 3, can, as dealt with in various text-books, have reference only to those items to which the testator can claim right, title and interest. The items which have ceased to be his, by virtue of the transaction evidenced by Ext. A, at any rate so far as the plaintiff is concerned, cannot in the eye of law be considered the property of the father. The items which have ceased to be his, by virtue of the transaction evidenced by Ext. A, at any rate so far as the plaintiff is concerned, cannot in the eye of law be considered the property of the father. S.180 of the Indian Succession Act, 1925 which has been relied upon by the defendants to non-suit the plaintiff's claim, which contention has been accepted by the learned judge is as follows: "Where a person, by his will, professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and in the latter case, he shall give up any benefits which may have been provided for him by the Will." 20. I have already indicated that the ingredients of the doctrine of election as contained in S.180 of the Act are that a person must profess to dispose of something which he has no right to dispose of and the person to whom the thing belongs must be given some property under the Will. Under those circumstances, the person to whom the property belongs and which has been dealt with under the Will, and to whom a disposition has been made, has to elect either to confirm such disposition of to dissent from it. Dealing with the property belonging to somebody else must be by clear words by the testator in the Will and such an intention to deal with third parties' properties cannot be inferred by mere general words of disposition contained in the Will. 21. In Halsbury's Laws of England (3rd Edition), Vol. 14, at page 592, in Para.1097 it is stated that in order to raise a case of election under a Will, on the ground that the testator has attempted to dispose of property over which he had no disposing power, it must be clearly shown that the testator intended to dispose of the particular property and this intention must clearly appear on the face of the Will. Therefore it will be seen from this passage, that unless a court is able to come to the conclusion that the testator has disposed of the particular property belonging to somebody else, the application of the doctrine of election becomes considerably difficult under those circumstances. 22. Therefore it will be seen from this passage, that unless a court is able to come to the conclusion that the testator has disposed of the particular property belonging to somebody else, the application of the doctrine of election becomes considerably difficult under those circumstances. 22. It will also be seen from the passage in Theobald on Wills, 12th Edition at page 363, Para.362 that in order to raise a case for election under a will, there must be on the face of the will, a disposition on the part of the testator of something belonging to a person, who takes an interest under the will. The learned author further says that parol evidence is not admissible to raise a case of election. It is further stated that an erroneous belief on the part of the testator, that certain property has been disposed of in a particular way, even though he expressly declares that he has made his will on the faith of it, will not raise an election. In particular, in Para.363, the learned author further states, that general words are not construed to apply to property, not belonging to the testator, though on the date of his will, and his death, he had no property of his own, to which the words could apply. 23. These principles have been referred to and applied in two decisions of the Madras High Court reported in Parukutty Amma v. Lakshmi Amma (AIR. 1954 Madras 556) and Subbaraya Pillai v. Vaheesan (AIR. 1963 Madras 405). 24. In Re Mengel's Will Trusts (1962-2 All England Law Reports 490) a passage from the judgment of Sir John Romilly, M.R. in Miller v. Thurgood (1864-3 3-Beau. at page 499) has been extracted. The material observations are "But if the testator does not dispose of it specifically but, by general words, such as 'all my lands and hereditaments' or the like, no case for election arises, because there is other property of the testator's sufficient to satisfy the devise itself." All parties are agreed in this case that on the date of the execution of the Will Ext. 3, apart from the properties that were dealt with in favour of the plaintiff, and apart from the property which is the subject of the present litigation, the testator was possessed of other properties which he could have disposed of as he liked and the expression occurring in Ext. 3 to the effect that " It will clearly refer to such properties which he was entitled to deal with & bequeath in law. All counsel are also agreed that the property already settled on the plaintiff under Ext. A, has not been specifically dealt with by the testator, in the Will, Ext. 3. ' 25. In Jarman on Wills Vol. I, Eighth Edition at page 545 the principle is slated as follows:-The doctrine of election may be stated thus: That he who accepts a benefit under a deed or will, must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it. If, therefore, a testator has affected to dispose of property which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him must make good the testator's attempted disposition." 26. In fact, Mr. M.U. Isaac, learned counsel for the respondent, has placed considerable reliance on this observation in support of his contention that the plaintiff must be considered to have accepted the benefit given to him under the will Ext. 3 by the father altering the arrangement already made under Ext. A in favour of the first and second defendants. But it will be seen that in the same volume at page 548 the author proceeds to state that if the property which the testator professes to dispose of, does not belong to the legatee, no case of election arises at all. 27. In my view, a reading of Ext. 3 will clearly show that the passage extracted above will clearly apply, this being a case where the testator does not profess to dispose of a property belonging to the legatee, namely the plaintiff. 28. In Williams on Executors and Administrators, Fourteenth Edition the author deals with the doctrine of election in Chap.70 at page 848. Mr. 3 will clearly show that the passage extracted above will clearly apply, this being a case where the testator does not profess to dispose of a property belonging to the legatee, namely the plaintiff. 28. In Williams on Executors and Administrators, Fourteenth Edition the author deals with the doctrine of election in Chap.70 at page 848. Mr. M.U. Isaac learned counsel for the respondent has referred to the extract contained in Para.1317 to the effect that "if a testator gives property by design or by mistake which is not his to give, and gives at the same time to the real owner of it other property, such real owner cannot take both and in such a case the real owner is put to his election." The question, as I have already stated, is as to whether in this case the testator has under Ext. 3, given or purported to deal with the property belonging to the plaintiff. In the same volume at page 850 in Para.1322, the author states "that the intention of the testator to dispose of the property which is not his own, should be clear & the intention must appear by demonstration plain, by necessary implication"; and it is also stated that "A person ordinarily is not; without strong indications of such an intent to be understood as dealing with what does not belong to him" 29. Having due regard to these passages in the various text-books based upon judicial decisions and which have been placed before me by Mr. T.S. Krishnamoorthy Iyer and Mr. M.U. Isaac in my view, the decision rendered by the learned Subordinate Judge that S.180 of the Indian Succession Act applies and that the appellant has elected to take the benefit under the Will and therefore he cannot claim any further benefits on the basis of Ext. A, cannot certainly be sustained. So far as I could see, there is no specific disposition of the property already given to the plaintiff under Ext. A, by the father in Ext. 3. No doubt the father has dealt with an item which was given under Ext. A to the first defendant and a part of the item given to the second defendant under Ext. A in Ext. 3. A, by the father in Ext. 3. No doubt the father has dealt with an item which was given under Ext. A to the first defendant and a part of the item given to the second defendant under Ext. A in Ext. 3. If at all the question of the doctrine of election and the applicability of S.180 of the Indian Succession Act comes into play, in my view, the election will really have to be made, not, by the plaintiff, but by really defendants 1 & 2. 30. It is not possible to infer from the general expression used by the father to the effect that he is bequeathing all the rest of his properties in favour of the first defendant as residuary legatee with a life-estate in favour of the second defendant as indicating a clear intention on the part of the testator that he is specifically dealing with an item of property which has been given to the plaintiff under Ext. A, and subject of this litigation. No other evidence can be let in by the parties regarding the intention of the testator; and it is only the provisions of the will that will have to be considered for the purpose of deciding as to whether the doctrine of election applies or not. 31. As I started the judgment, it will be seen no doubt, the father may have intended otherwise. But unfortunately in view of the fact that his intention has not been clearly expressed in Ext. 3, the plaintiff's claim that he is entitled to not only the property that has been given under Ext. A, but also to the other bequests that have been made in his favour under Ext. 3, will have to be accepted. 32. The result is that the decree and judgment of the learned Subordinate Judge dismissing the plaintiff's claim, in so far as it relates to the plaint A schedule items will have to be set aside and the appeal allowed. The plaintiff's suit for declaration of title and for recovery of possession will be decreed subject to the condition that he will not be entitled to recover or claim any mesne profits from defendants 1 to 3 nor any future mesne profits from defendants 1 to 3 provided they surrender possession of the properties to the plaintiff within six months from today. There will be a decree for mesne profits as against the 4th defendant which will be investigated and enquired into in execution proceedings. 33. I also make clear that if defendants 1 to 3 do not surrender possession of the properties within six months, they will only be liable for future mesne profits from today at the rate claimed in the plaint, but on no account will they be liable for past mesne profits which must have accrued up to day. No order as to costs either here or in the suit. Allowed.