JUDGMENT T.C. Raghavan, J. There are four wills in this litigation, Exts. D-9 and D-10 executed by a Christian by name Porinchu jointly with his wife Annamma, Ext D-9 on 21st June 1950 and Ext. D-10 on 23rd September 1952, and Exts. D-11 and D-12 executed by Porinchu alone after Annamma's death, Ext. D-11 on 12th January 1960 and Ext. D-12 on 5th January 1962. Porinchu had eight children, three daughters and five sons, and the property left by him was an extent of 26 cents of land with seven or eight buildings thereon. The second of the sons filed a suit for partition claiming that the property was acquired by the eldest son, now deceased, with the help of all the members of the family, so that the property was joint property and was liable to be partitioned among the children of Porinchu and Annamma equally. The fourth of the sons, the fifth defendant in the suit, filed an application for letters of administration of Ext. D-11; and the last on, the last of the children, the sixth defendant, filed another application for letters of administration of Ext. D-12. The District Judge held that Exts. D-9 and D-10 were mutual wills, of which Ext. D-10, being the last will, was the will to be administered; and Exts. D-11 and D-12, being wills executed by Porinchu alone after the death of Annamma, were void and ineffective since a mutual will could not be revoked by one of the testators after the demise of the other. In this view he passed a preliminary decree in the original suit on the basis of Ext. D-10 and dismissed the applications for letters of administration of Exts. D-11 and D-12. One fact may this stage; and that is that Porinchu executed Ext. D-26, an assignment in favour of the second defendant, the second of the daughters, on 20th May 1961 and executed a similar assignment, Ext. D-29, in favour of the third defendant, the third of the sons, on 9th January 1962. What remained after these two assignments was alone the subject-matter of Ext. D-12, the last will executed by Porinchu. D-26, an assignment in favour of the second defendant, the second of the daughters, on 20th May 1961 and executed a similar assignment, Ext. D-29, in favour of the third defendant, the third of the sons, on 9th January 1962. What remained after these two assignments was alone the subject-matter of Ext. D-12, the last will executed by Porinchu. A. S. No. 123 of 1964 is by defendants 2 and 3 against the decree in the original suit; A. S. No. 182 of 1964 is by the plaintiff against the same decree; A. S. No. 124 of 1964 is by the sixth defendant against the dismissal of his application for letters of administration of Ext. D-12; and A.S. No. 271 of 1964 is by the fifth defendant against the dismissal of his application for letters of administration of Ext. D-11. One of the contentions raised before the lower court was that the property was acquired by the eldest son of Porinchu. We do not think that there is any substance in this contention, because at the time of the acquisition of the property the first son of Porinchu was just a boy. There is also evidence that he left the family house as early as 1115 and was living with his wife outside the family. Therefore, he could not have contributed for the construction of the buildings either. The evidence further shows that he became seriously ill and was taken to the family house by Porinchu, where he died. There is also no indication, documentary or otherwise, that it was with the efforts of the first son that either the suit property was acquired or the buildings thereon were constructed. Therefore, this contention was rightly rejected by the District Judge. The next contention urged before us is that the property was acquired with the aid of funds advanced by Annamma also. A lease of the property was taken as early as 1101 in the name of Porinchu; and subsequently, there was an agreement between him and the landlord in 1107 for the sale of the property to Porinchu. However, that contract fell through. Still, in 1114 the property was sold by the landlord to Porinchu for a consideration of Rs. 900, out of which a sum of Rs. 400 was paid immediately and for the balance of Rs. 500 a mortgage of the same property was also executed. However, that contract fell through. Still, in 1114 the property was sold by the landlord to Porinchu for a consideration of Rs. 900, out of which a sum of Rs. 400 was paid immediately and for the balance of Rs. 500 a mortgage of the same property was also executed. Later on, Porinchu discharged the mortgage and paid off the vendor. How it is sought to establish that part of the consideration for the acquisition of the property came from Annamma is by relying on Ext. P-1, a letter written by the manager of the Dharmodayam Company, which indicates that Annamma had a kuri (chit) transaction with the Company, whereunder she drew a sum of Rs. 625. Ext. D-7 is the receipt evidencing the discharge of the mortgage. Three payments towards the discharge of the mortgage are recited in Ext. D-7; and one of them was on the date on which Annamma received the kuri amount from the Dharmodayam Company. On this ground it is argued that the payment towards the discharge of the mortgage on that day must have been made with Annamma's money received from the Dharmodayam Company. Excepting the probability that the money might have come from Annamma, there is no other evidence to show any definite connection between Annamma's kuri amount and the discharge of the mortgage. Therefore, it may be too much to conclude on the basis of this evidence alone that part of the consideration for the acquisition of the suit property came from Annamma. Another way in which the claim that Annamma was also entitled to the suit property is sought to be established is by relying on the recitals in Exts. D-9 and D-10. As we have already stated, these wills were executed by the spouses jointly; and the relevant provisions, relevant for the purpose of this litigation, in both of them are the same. Therefore, the recitals in the later will, Ext. D-10, need alone be considered. The recital regarding the acquisition of the property in Ext. D-10 is that it was made with the earnings of Porinchu and the management (the administration, as the District Judge puts) of Annamma. The recital proceeds to state that both the testators were entitled to the property. The counsel of the plaintiff urges, basing on this circumstance, that, at any rate, at the time when Ext. D-10 is that it was made with the earnings of Porinchu and the management (the administration, as the District Judge puts) of Annamma. The recital proceeds to state that both the testators were entitled to the property. The counsel of the plaintiff urges, basing on this circumstance, that, at any rate, at the time when Ext. D-10 was executed Porinchu conceded that Annamma had also an equal right with him in the suit property. And this is relied upon to support the claim that Ext. D-10 is a mutual will executed by two testators who had equal rights in the property. We do not think we need decide the question whether by this recital alone in Ext. D-10 Annamma acquired a right to the suit property, because the discussion that will follow will indicate that even if Annamma had equal rights in the property Ext. D-10 is not a mutual will not liable to be revoked by Porinchu after the death of Annamma. The next and the main question thus is whether Ext. D-10 is a mutual will and what is the effect of the said mutual will. Incidentally, we may indicate the nature of a joint will too. "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 in effect two or more wills; 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. (Halsbury's Laws of England, Third Edn., Vol. 39, at page 847). Jarman on Wills, Eighth Edn., Vol. I, at page 41 is to the same effect. The learned author says: "Two or more persons may make a joint will, which, if properly executed by each, is, so far as his own property is concerned, as much his will, and is as well entitled to probate upon his death, as if he had made a separate will. I, at page 41 is to the same effect. The learned author says: "Two or more persons may make a joint will, which, if properly executed by each, is, so far as his own property is concerned, as much his will, and is as well entitled to probate upon his death, as if he had made a separate will. But a joint will made by two persons, to take effect after the death of both, will not be admitted to probate during the life, of either. Joint wills are revocable at any time by either of the testators during their joint lives, or, after the death of one of them, by the survivor."� Again, Theobald on Wills, Twelfth Edn., at page 28 states: "Persons may make joint wills, which are, however, 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."� Thus, a joint will is nothing but two or more wills incorporated in the same document; and on the death of each of the testators his will can be probated as if it is a separate will unless there is a provision that it will be admitted to probate only after the lives of all the testators. And each of the testators is at liberty to revoke his will at any time before after the death of the other testators. The lower court, as we have already stated, was of opinion that Ext. D-10 was a mutual will; and therefore, we shall now address ourselves to question. Halsbury states at page 847 of Vol. 39 referred to already: "Wills are mutual when the testators confer upon each other reciprocal benefits, and these may be absolute benefits, in each other's property, or they may be life interests, with the same ultimate disposition of each estate on the death of the survivor. ***** 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." Similarly, Jarman at page 41 of the same volume referred to already states: "A mutual will is regarded as being in effect two separate wills, in which the disposition of each testator is treated as applicable to his share of the joint property. Instruments of this nature are unknown to the testamentary law of this country, and with us the term "mutual will"� is generally applied to the case of two persons making a will by which each leaves all his property to the other." Again, Theobald at page 28 of his work says: "The term "mutual wills"� is used to describe separate documents of a testamentary character made as the result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries."� And lastly, B. S. Ker on his Wills, Probate and Administration says at page 20: "Mutual wills are the outcome of an agreement by two persons to make their wills in identical terms. If they are made in one instrument, then they are called "joint"� mutual wills. ***** The intention behind a mutual will is that each testator gives his property in a certain way on the understanding that the survivor will not revoke his will. But and here is the chief drawbackin its essence, a will is always revocable until the testator's death." To these we may add the observation of Venkatarama Aiyar, J. in Kochu Govindam Kaimal v. Thayankoot Thekkot Lakshmi Amma, A.I.R. 1959 S.C. 71: "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."� In addition to these our attention has also been drawn to the Division Bench ruling of the Madras High Court in Kuppuswami Raja v. Perumal Raja, A.I.R. 1964 Madras 291. After a fairly long discussion considering the several English decisions on the question and also some of the learned authors we have already referred to, Ramamurti J., speaking for the Bench, has observed at page 298: "We confess that the matter is not free from difficulty. After a fairly long discussion considering the several English decisions on the question and also some of the learned authors we have already referred to, Ramamurti J., speaking for the Bench, has observed at page 298: "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 joist 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."� On a consideration of the opinions of the learned authors extracted by us, we are of opinion that the observation of Ramamurti, J. in the Madras decision is not quite appropriate learned Judge means thereby that the test of mutuality or irrevocability lies not in the understanding or agreement prohibiting revocation but in the deriving of benefits by the survivor. The simplest form of mutual will is the one pointed out by Venkatarama Aiyar, J. in the Supreme Court decision referred to above, namely, a will executed by two or more testators where the benefit as legatee is conferred on each of them, so that each of them is a testator and a legatee. Another type of mutual will can easily be conceived of: for instance, two persons execute a joint will or even separate wills on the understanding that one of them is making a particular bequest on condition the other is making another particular bequest. In such a case, if one of the testators dies without revoking his bequest or will, the other testator should not be allowed to revoke his bequest or will, because the understanding between the testators was that one made a particular bequest because the other made the other particular bequest and each would not revoke his bequest or will without the consent of the other. Then, by the death of one of the testators his bequest or will becomes irrevocable, so that the other testator cannot also revoke his bequest or will. Then, by the death of one of the testators his bequest or will becomes irrevocable, so that the other testator cannot also revoke his bequest or will. Of course, if both of them wish to revoke the will while they are alive, it could be done jointly; and if one of them revokes his bequest or will before the other dies, the only thing he need do is to give notice of his revocation to the other, so that the other might also revoke his bequest or will if he so chooses. The English authors have indicated clearly that the sanctity of a mutual will, its real mutuality or its irrevocability, lies in the agreement between the testators that one will not revoke his part of the will unless the other also agrees. In other words, it is the understanding that one of the testators makes a particular bequest on condition the other makes the other particular bequest that makes the will really mutual, so that if one of them dies and his part of the will becomes irrevocable the other part of the other testator must equally be irrevocable. And it is not the benefits the surviving testator derives as legatee after the death of the other that make the mutual will irrevocable. Suppose two people execute a joint will conferring mutual benefits on each of them in the event of the death of the other, which is the simple form of mutual will as pointed out by Venkatarama Aiyar, J. In such a case, on the death of one of the testators the other becomes the owner of the property left by the pre-deceased testator too. Naturally, the survivor must have full rights over all the properties his property and the property he obtained from the pre-deceased testator to deal with them in any manner he likes: this right includes a right to dispose of the property by will too. Therefore in this form of mutual will (if it is a mutual will) the irrevocability can lie only in the agreement that one of the testators will not revoke his will after the death of the other if there is such an agreement and not in the fact that the surviving testator derived benefits on the death of the other testator. Suppose A and B execute a joint will or two separate wills in favour of C A makes a particular bequest on the understanding that B makes another particular bequest, both in favour of C. This may also be a case of a mutual will or wills, though the surviving testator is not getting any benefit on the death of the other, the bequests being in favour of C. In such a case also on the death of one of the testators the surviving testator will not be allowed to revoke his bequest or will, because the understanding between the testators was that after the death of one of them the other would not revoke his will. We are pointing out this hypothetical case only to bring out that it is not the benefits the surviving testator obtains after the death of the other that make the mutual will irrevocable, but it is the understanding between the testators that one will not revoke his will after the death of the other. To this extent, we are constrained to remark, we are not in agreement with the view expressed in the Madras decision. The counsel of the plaintiff has drawn our attention to the old English decision in Dufour v. Pereira, 21 English Reports Ch. 332, which is the leading case on the subject where Lord Camdon laid down the principle of irrevocability of a mutual will. Lord Camdon observed: "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. 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 counsel lays stress on this observation of Lord Camdon. We hasten to point out that this had been fully considered by Astbury J. in In re Oldham: Hadwon v. Myles, 1925 I Ch. D. 75. Astbury J. pointed out that in Dufour v. Pereira, 21 English Reports Ch. Certainly not."� The counsel lays stress on this observation of Lord Camdon. We hasten to point out that this had been fully considered by Astbury J. in In re Oldham: Hadwon v. Myles, 1925 I Ch. D. 75. Astbury J. pointed out that in Dufour v. Pereira, 21 English Reports Ch. 332 Lord Camdon inferred an agreement of the spouses to pool their properties into a common fund, in which, each was to take a life interest with an agreed remainder over of the capital. Astbury J. also pointed out that the report of the judgment of Lord Camdon was very short, but the case was more fully stated in Hargrave's juridical Arguments, Vol. II, page 304. And from the facts gathered from Hargrave Astbury, J. concluded that it was the agreement between the parties which Lord Camdon found as a fact in that case that was responsible for the irrevocability of the will and not the fact that one of the testators died and the other had the benefit of enjoying the property after the death of the former. Thus, the crucial test in finding out whether a mutual will is revocable or not is whether there is such an agreement or understanding between the testators may be, the agreement need not be specific. Another decision brought to our notice may also be considered here. One learned Judge of this Court has held in Janaki v. Krishnan, (1964) I K.L.R. 4 that in a case where there was an agreement between two testators not to revoke or modify a joint will and where the surviving testator had also accepted benefits under a disposition by the predeceased testator, the will is not thereafter revocable. The learned judge has referred to three decisions, and has held that both the elements (that there was an agreement not to revoke and that the survivor of the testators had accepted benefits under the disposition of the deceased) were present in the will before him and hence it was not revocable by the surviving testator after the death of the pre-deceased testator. The three decisions mentioned by the learned Judge are Minakshi Ammal v. Viswanatha Iyer, I.L.R. 33 Madras 406; Helen Ann Gray v. The Perpetual Trustee Company Ltd.; A.I.R. 1928 P.C. 284 and In re Hugger : Jreeman v. Arscott, 1930: 2 Ch. 190. The three decisions mentioned by the learned Judge are Minakshi Ammal v. Viswanatha Iyer, I.L.R. 33 Madras 406; Helen Ann Gray v. The Perpetual Trustee Company Ltd.; A.I.R. 1928 P.C. 284 and In re Hugger : Jreeman v. Arscott, 1930: 2 Ch. 190. The Madras decision seems to lay down that it is the taking of benefits by the surviving testator under the will of the predeceased testator that makes a mutual will irrevocable and not the agreement not to revoke, apparently the same view expressed by Ramamurthi J. in Kuppuswami Raja's case already referred to. The decision of the Privy Council (a case from Australia) lays down that in the absence of any definite agreement not to revoke "there is no implied trust"� precluding the surviving testator from making a fresh will even though on the death of the pre-deceased testator the survivor had taken benefits under the former's will. We may also point out that in that case evidence appears to have been taken regarding the agreement between the testators, so that the proof of the agreement not to revoke was not confined to the recitals in the will alone. As we read the judgment of Clauston J. in the third case, it seems to lay down that "even though the survivor did not signify his election to give effect to the will by taking benefits under it", he cannot revoke his will after the death of the other testator if they agreed that the will should not be revoked without their mutual consent". In the will in that case there was such an agreement. We therefore reiterate that the real test of mutuality, the test of irrevocability we mean, lies in the understanding between the testators that one will not revoke his will after it has become impossible for the other to revoke his will and not in the taking of benefits by the survivor under the will of the other may be the understanding is not specific, nor need it appear in the will itself. The counsel of defendants 2 and 3 has pointed out that Ext. D-10 is not a mutual will at all. The counsel has argued that Annamma had no right in the property and the inclusion of Annamma's name in Ext. D-9 and D-10 was only to give her a life interest in the property in case Porinchu died earlier. The counsel of defendants 2 and 3 has pointed out that Ext. D-10 is not a mutual will at all. The counsel has argued that Annamma had no right in the property and the inclusion of Annamma's name in Ext. D-9 and D-10 was only to give her a life interest in the property in case Porinchu died earlier. As we have already indicated at the commencement of this judgment, we are not deciding the question whether Annamma had any right in the property, because, again as we have indicated, the question of revocability or irrevocability depends on the understanding between the testators that one will not revoke his will after the death of the other. In Exts. D-9 and D-10 the provisions are clear that, in case Porinchu died earlier, Annamma was only entitled to enjoy the property without alienating it and the property had, after her death, to go to the beneficiaries mentioned in the wills. On the other hand, in case Annamma pre-deceased Porinchu, the latter had full rights over the property including the right of alienation. If, after the death of Annamma, Porinchu had full rights to alienate the property, we fail to see why he cannot dispose of it by will. Therefore, on the very terms of Ext. D-10, not only was there an understanding between Porinchu and Annamma that after the death of the former the latter would not alienate the property but was there an understanding that after the death of the latter the former could alienate. Therefore, even if Ext. D-10 is a mutual will, still, even under its provisions Porinchu had full rights in the property after the death of Annamma including the right to alienate, which necessarily meant the right to bequeath. It follows that Exts. D-11 and D-12 executed by Porinchu after the death of Annamma are valid wills if they are otherwise valid if Porinchu had the disposing capacity at the relevant times. Exts. D-11 and D-12 are both wills executed by Porinchu, one after the other, and naturally, if he had the disposing state of mind at the relevant times, the second of the wills alone will be valid, that being the last will. Some attack has been made against Ext. D-12: it is argued that, at the time when that will was executed, Porinchu did not have proper disposing capacity. Some attack has been made against Ext. D-12: it is argued that, at the time when that will was executed, Porinchu did not have proper disposing capacity. This question has been considered by the District Judge in paragraph 13 of his judgment. The Doctor who treated Porinchu for several years during his life and also at the time of his death was examined as D.W. 10; the Sub Registrar who registered Ext. D-12 was examined as D.W. 6; and the scribe who prepared the document was examined as D.W. 8. There is documentary evidence to show that, till three or four days prior to his death, Porinchu was working as an accountant in Mani and Company. It has also come out in evidence that he drew his salary for December 1961. Ext. D-12 was prepared and executed on 5th January 1962 and Porinchu died on 11th January. D.W. 7, a nephew of Porinchu, has deposed that, even on the day Porinchu died, he had no lapse of memory. It may be noted that Porinchu died of coronary thrombosis. Therefore, there cannot be any doubt regarding his mental capacity, his disposing capacity. The counsel of the plaintiff has drawn our attention to the two decisions of the Supreme Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, A.I.R. 1959 S.C. 443 and Shashi Kumar Banerjee v. Subodh Kumar Banerjee, A.I.R. 1964 S.C. 529 laying down that it is the responsibility of the prepounder of a will to clear the doubts surrounding the execution of the will and Satisfy the judicial mind of the mental capacity of the testator. We do not feel any doubt regarding the mental capacity of Porinchu at the relevant time; and we do not also entertain any doubt regarding the circumstances surrounding the execution of Ext. D-12, nor do we find anything unnatural in the bequests therein. There is evidence by way of recitals in the document itself that there were sufficient grounds for disinheriting some of the children. It appears that some of them filed criminal cases against Porinchu and some of the members of the family; there was a civil suit filed by Porinchu against some of his children; and there was also some ill-treatment of Porinchu by some of his children. In the result, A.S. No. 123 of 1964 is allowed and A.S. No. 124 of 1964 is also allowed. In the result, A.S. No. 123 of 1964 is allowed and A.S. No. 124 of 1964 is also allowed. The application for letters of administration of Ext. D-12 filed by the sixth defendant, the appellant in A.S. No. 124 of 1964, is allowed and it is directed that letters of administration of Ext. D-12 do issue. The decree that will follow in the original suit will be on the lines of the bequests in Ext. D-12. The other two appeals, A.S. Nos. 182 of 1964 and 271 of 1964, are dismissed. Considering all the circumstances, we direct all parties to bear their respective costs throughout.