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2025 DIGILAW 1509 (MAD)

Celine Martina v. T. Joseph Athisayam (died)

2025-03-14

R.N.MANJULA

body2025
JUDGMENT : R.N. Manjula, J. This Second Appeal has been filed to set aside the judgment and decree of the learned Additional District Judge, Tirupur dated 31.10.2014 made in A.S.No.57/2012 reversing the judgment and decree of the learned Additional Subordinate Judge, Tirupur dated 09.03.2012 made in O.S.No.97 of 2011. 2. Heard Mr.V.Raghavachari, learned Senior Counsel for the appellant and Mr.B.Arvind Srevatsa, learned counsel for R2 to R4 and perused the materials available on record. 3. The Appellant is the plaintiff who has filed a suit for partition and separate possession of 1/2 share in the suit property. The Trial Court had decreed the suit as prayed and passed a preliminary decree. On the First Appeal preferred by the defendant, the First Appellate Court has allowed the First Appeal and reversed the judgment and decree of the Trial Court and dismissed the suit. Aggrieved over the same, the plaintiff has filed this Second Appeal. 4. The short facts pleaded in the plaint are as follows: The plaintiff and the defendant are siblings. They are the children of Thiruvanjiyam and Josephine and the suit properties have been purchased by the parents of the parties to the suit by virtue of a sale deed dated 16.03.1985. The parents of the plaintiff and the defendant have also got two more daughters and two more sons other than the plaintiff and the defendant. One of the daughters by name Mary Regina Jeevan died. During the life time of Josephine and Thiruvanjiyam, they executed a Will dated 16.05.1985 in favour of the defendant and bequeathed the suit properties to him. Thiruvanjiyam died on 18.05.1985. The Will has been executed jointly by both the parents of the defendant and they had equal rights in the suit properties and after the demise of the father, his 1/2 share has to be inherited by the defendant as per the Will. The mother Josephine had revoked the testament and thereafter, she had executed a settlement deed in favour of the plaintiff. From then onwards, the plaintiff had accepted the property offered as settlement by her mother and she is in enjoyment of the same. The defendant is residing in rest of the 1/2 portion. 4.1. As per the Will, in respect of other 1/2 share, the defendant is in enjoyment. The plaintiff has got 1/2 share in the suit property. There are four tenants in the suit property. The defendant is residing in rest of the 1/2 portion. 4.1. As per the Will, in respect of other 1/2 share, the defendant is in enjoyment. The plaintiff has got 1/2 share in the suit property. There are four tenants in the suit property. The defendant is elder to the plaintiff. There was some misunderstanding arose between the plaintiff and the defendant and the defendant tries to take away the whole of the suit property. On 21.04.2008, the plaintiff applied for the mutation of name in her favour based on the settlement deed in respect of the house tax and water tax. The defendant being a Superintendent in the Customs Department used his power and money to disturb the plaintiff's peaceful possession and enjoyment in the suit property. Hence, she filed the suit. 5. The averments made in the written statement filed by the defendant are as follows: It is true that the properties are originally belonged to Thiruvanjiyam and Josephine and that the plaintiff and the defendant are the legal heirs of Thiruvanjiyam and Josephine. On 16.05.1985 the defendant's parents Thiruvanjiyam and Josephine had executed a Will. The Will is a mutual Will and it is not a joint Will. It appears from the recitals of the Will that both parties to the Will are the beneficiaries. After the demise of the father of the parties, the mother was in enjoyment of the suit property. The mutual Will cannot be revoked subsequent to the death of one of the executant of the Will. Hence, the suit is not maintainable. 6. Based on the above pleadings, the Trial Court has framed the following issues: 7. During the course of the trial, on the side of the plaintiff, P.W.1 to P.W.3 were examined and Exs.A1 to A13 were marked. On the side of the defendant, D.W.1 was examined and Exs.B1 to B5 were marked. 8. At the conclusion of the trial and on considering the evidence on record, the Trial Court has decreed the suit and passed a preliminary decree as prayed. The First Appeal preferred by the defendant was allowed by reversing the judgment and decree of the Trial Court. Aggrieved over the same, this Second Appeal has been filed. 8. At the conclusion of the trial and on considering the evidence on record, the Trial Court has decreed the suit and passed a preliminary decree as prayed. The First Appeal preferred by the defendant was allowed by reversing the judgment and decree of the Trial Court. Aggrieved over the same, this Second Appeal has been filed. The Second Appeal was admitted by raising the following substantial questions of law: "1.Whether the Will dated 16.05.1985 is a mutual Will which is revocable or it is a joint Will irrevocable? 2. Whether revocation of the Will made by Mrs.Josephine is valid in law? and 3. Whether the settlement deed executed by Josephine in favour of the plaintiff would convey title for undivided half share to the plaintiff?" 9. For the sake of convenient discussion in the Second Appeal, the parties are referred as per their rank in the plaint. 10. The learned Senior Counsel for the appellant / plaintiff submitted that the Will executed by the parents of the parties viz., Thiruvanjiyam and Josephine is only a joint Will and not a mutual Will as alleged by the defendant. The Will simply stated that it will come into effect after the demise of both the executants. As per the Will, the defendant can have the absolute right over the suit property after the demise of his parents. The father of the defendant and the plaintiff did not revoke the Will during his life time. However, subsequent to the death of the father, the mother had revoked the Will on 03.05.2006 and she also executed a settlement deed in favour of the plaintiff on the same day. So far as the joint Will is concerned, one of the testators can revoke the Will during their life time and it is not as though one of the testators cannot revoke the Will after the life time of other testator. 11. It is further submitted by the learned Senior Counsel for the appellant that in the Will it is mentioned that Josephine has got the right to cancel the Will any time during her life time. 11. It is further submitted by the learned Senior Counsel for the appellant that in the Will it is mentioned that Josephine has got the right to cancel the Will any time during her life time. The mutual Will can be the one in which one of the testator is given with the right to enjoy the property during his or her life time and gain benefit or both the testators agreed for a term that the Will shall not be cancelled during their life time. As the Will executed by the father and mother of the plaintiff is only a joint Will, the mother has the right to revoke the Will subsequent to the lifetime of the father. Since the First Appellate Court has allowed the Appeal on a wrong presumption that the Will is a mutual Will, the judgment and decree of the First Appellate Court is liable to be set aside. In support of his contentions, he relied on the following judgments: (i) Dilharshankar C. Bachech Vs. Controller of Estate Duty, Ahmedabad reported in (1986) 1 SCC 701. (ii) K.S.Palanisami Vs. Hindu Community in General and Citizens of Gobichettipalayam and Others , reported in (2017) 13 SCC 15 . (iii) Kochu Govindan Kaimal and Others Vs. Thayankoot Thekkot Lakshmi Amma and Others , reported in AIR 1959 SC 71 . 12. The learned counsel for the respondents submitted that it is the mutual Will because in the Will in more than one places, it is stated that it will come into effect only after the lifetime of both testators. The revocation clause found in the Will is also a joint revocation and not an individual revocation. The father of the parties died within two days after the execution of the Will and the mother of the parties had been in enjoyment of the property for twenty years and only on 03.05.2006, she had executed a settlement deed in favour of the plaintiff and cancelled the Will in respect of her share which was already bequeathed in favour of the defendant in the Will dated 16.05.1985. The testatrix and the mother of the parties has been examined as P.W.2 in the suit. But the plaintiff did not enter into the witness box. The testatrix and the mother of the parties has been examined as P.W.2 in the suit. But the plaintiff did not enter into the witness box. As the First Appellate Court had rightly arrived at a conclusion that the Will is a mutual Will, the mother did not have any right to revoke the Will and subsequently, execute a settlement deed in favour of the plaintiff. Hence, the judgment and decree of the First Appellate Court should be confirmed. Discussion: 13 . The relationship between the parties is not in dispute and they are siblings born to their parents Thiruvanjiyam and Josephine. Apart from the plaintiff and the defendant, the couple Thiruvanjiyam and Josephine have two more daughters and two more sons. The factum of execution of the Will dated 16.05.1985 is also not in dispute. When the plaintiff claims that the above Will is a joint Will, the defendant claims that the above Will is a mutual Will. The fact that the property jointly belonged to the executants of the Will viz., Thiruvanjiyam and Josephine by virtue of the sale deed dated 16.03.1985 is also not in dispute. The Will executed by the owners of the suit property is dated 16.05.1985 and it has been marked as Ex.A2. The genuineness of the Will is also not in dispute. 14. As per the recitals of the Will, the executants have intended to bequeath the whole of the property in favour of the defendant. As per the contents of the Will, the Will has to come into effect after the life time of the executants and the executants have reserved rights to revoke the Will till their life time. There is no denial on either side with regard to the said contents incorporated in the Will. The dispute arose due to the subsequent events occurred after the execution of the Will. 15. The father of the parties viz., Thiruvanjiyam died two days after the execution of the Will by leaving the mother and other children. At some point of time, the mother thought it fit to execute a settlement deed in respect of 1/2 share of the property in favour of the daughter who is the plaintiff herein on 03.05.2006 by cancelling the Will on the same day. Even the factum of execution of these documents is also not denied. At some point of time, the mother thought it fit to execute a settlement deed in respect of 1/2 share of the property in favour of the daughter who is the plaintiff herein on 03.05.2006 by cancelling the Will on the same day. Even the factum of execution of these documents is also not denied. The only contention of the defendant is that the Will executed by the father and mother of the parties on 16.05.1985 is a mutual Will and hence, after the life time of the father, the mother alone cannot revoke the Will and pass on title in respect of 1/2 share in favour of the plaintiff. 16. The core contention of the plaintiff is that the suit Will is not a mutual Will. But it is only a joint Will. The recitals of Ex.A2 Will make it apparent that the executants have got the right to revoke the Will at any time. It is claimed by the defendant that the mother cannot have any right to cancel the Will subsequent to the life time of his father because it is a mutual Will. 17. To get a clarification about the question, whether the Will is a joint Will or mutual Will, it is appropriate to refer the 5th Edition of Volume 102 of Halsbury's laws of England which defines the joint Will and the mutual Will. The reference of the above definition given in the judgment of the Hon'ble Supreme Court in the case of K.S.Palanisami Vs. Hindu Community in General and Citizens of Gobichettipalayam and Others , reported in (2017) 13 SCC 15 , is extracted hereunder: "31. 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. 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 is 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.”" 18. As per the above definition, the joint Will is a one which is executed by two or more persons in respect of their own properties either held separately or jointly, but through a single Will. A mutual Will would confer reciprocal benefit upon each other in respect of the properties and the ultimate disposition of each estate on the death of the survivor. 19. In the instant case, the defendant is already residing in 1/2 portion of the subject property of the Will. It is claimed by the defendant that as the executants had reserved right of enjoyment of the whole of the property upon themselves until their life time, it should be construed as a mutual entrustment with respective interest over the properties upon the other. 20. The learned First Appellate Judge has given an interpretation that when the benefit of the Will has been enjoyed by the other subsequent to the life time of one of the executants, the other executant did not have the right to revoke the Will. The above construction has been given by the First Appellate Court by considering the Will as a mutual Will. This is probably because the mother had acquired the father's joint interest in the property subsequent to his life and she has been in enjoyment of the same. Even though in the instant case, the Will does not have the specific recitals that their joint right in the property has to be acquired by the other during their life time and thereafter, the whole of the property should be enjoyed by their son, the defendant. 21. A similar issue when surfaced before the Hon'ble Supreme Court in case of Kochu Govindan Kaimal and Others Vs. 21. A similar issue when surfaced before the Hon'ble Supreme Court in case of Kochu Govindan Kaimal and Others Vs. Thayankoot Thekkot Lakshmi Amma and Others , reported in AIR 1959 SC 71 and the Court has held as under: "11. 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 document. 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. 12. In the result, the appeals are allowed, the decrees passed by the High Court are set aside, and those of the Courts below are restored, with costs throughout." 22. A perusal of the interpretation given by the Hon'ble Supreme Court in the above case would reveal that the mutual Will should be the one where the testators ought to have conferred reciprocal benefits upon each other by construing them as a mutual legatees. In other words, each of the testators would play the role of both testator and the legatee and thereby issuing the benefit upon themselves. In the instant case, there is no reciprocal benefit conferred upon the testators. The legatee was identified as defendant and not one among the testators. No absolute right has been given in respect of the joint share belonging to either of the testators upon the other. 23. In the instant case, there is no reciprocal benefit conferred upon the testators. The legatee was identified as defendant and not one among the testators. No absolute right has been given in respect of the joint share belonging to either of the testators upon the other. 23. Had it been the case of mutual Will, then, the construction will be in such a way that subsequent to the life time of the father, the mother had acquired the benefit of father's 1/2 share and in respect of her own share, there was no disposition and that will be retained by herself. To put it more clearly, on the death of the father, the mother in her capacity as a mutual legatee, would acquire the father's half on the joint interest. As the mother is alive, the other mutual legatee who was the father and who predeceased the mother could not have acquired the mother's 1/2 share as a legatee. The recitals of the impugned Will only postpone the enjoyment of the defendant in respect of the property belonged to the testators and there is no question of conferring any benefit of entitlement on the testators. In other words, one of the surviver among the testators does not become the owner of the joint interest belonged to the predeceased testator. 24. In this regard, it is appropriate to refer the judgment of the Hon'ble Supreme Court held in the case of Dilharshankar C. Bachech Vs. Controller of Estate Duty, Ahmedabad reported in (1986) 1 SCC 701 . The Hon'ble Supreme Court has made a reference of the Division Bench judgment of the Madras High Court made in the case of Kuppuswami Raja and Anr Vs. Perumal Raja and Ors, reported in 1976 MADLW 741 , in order to give a clear distinction between the mutual Will and the joint Will. The relevant paragraphs of the above judgment are extracted hereunder: "41. In Kuppuswamy Raja v. Perumal Raja (supra), it was observed that a joint will is by a single testamentary instrument containing the wills of two or more persons and jointly executed by them, while mutual wills, are separate wills of two or more persons which are reciprocal in their provisions and executed in pursuance of contract or agreement between two or more persons to dispose of their property to each other to third person in particular mode or manner. Mutual wills as distinguished from joint wills are sometimes described as reciprocal wills. In describing a will, the adjective mutual or reciprocal is used to denote the contractual element which distinguished from a joint will. It was stated therein by the Division Bench of the Madras High Court that joint will would become irrevocable on the death of one of the testators if the survivor received benefit under the will. The Court emphasised referring into certain decisions of this court that a joint will would become irrevocable on the death of one of the testators if the survivor has received benefit under the mutual will. There need not be any specific contract prohibiting evocation when the agreement took the form of not two simultaneous mutual wills but one single document. If one single document was executed using the expression 'our property', 'our present wishes', and 'as will' and such similar expressions, it was strong cogent evidence of the intention that there was no power to revoke except by mutual consent. 42. In order to render mutual will irrevocable, both, according to the said decision, the conditions must be concurrently satisfied: (a) that the surviving testator must have received benefits from the deceased under the mutual will; (b) the mutual wills should have been executed in pursuance of an agreement that the testators shall not revoke the mutual wills. Such an agreement not to revoke the wills may either appear from the wills themselves or may be proved outside the wills. This judgment was dissented from by the judgment under appeal." 25. So the essential elements that has to be tested in order to come to the conclusion whether the Will is a mutual Will or not is to ensure whether there was a mutual agreement between the testators to dispose their property to each other and in view of that, the surviving testator had received the benefit from the deceased under the Will. Such benefit ought to have been accrued in favour of the surviving testator in pursuant to an agreement that the testator shall not revoke the mutual Will. Only if these two elements are found to be present under a Will, that can be construed as a mutual Will. By accepting the above, the Hon'ble Supreme Court proceeded to observe that the agreement for not revoking the Will need not even be expressed, but that can be implied. Only if these two elements are found to be present under a Will, that can be construed as a mutual Will. By accepting the above, the Hon'ble Supreme Court proceeded to observe that the agreement for not revoking the Will need not even be expressed, but that can be implied. In this regard, it is appropriate to refer the following paragraphs of the above judgment: "52. It was emphasised that there was no evidence of mutuality. But there was enough evidence in the language of the will itself which have been set out herein before that the property must remain in tact specially after receipt of benefit by one of the executants on the death of the other until the death of both of them to be able to be succeeded by the ultimate legatees. The dominant intention of the testators is evidenced from the language used. This must be judged in the facts and circumstances of each case. It was not only that on certain basis that the will was made but it was intended to remain intact to be enjoyed by the grand children. The fact that both the executants have described themselves 'joint owners' is not by itself conclusive on this point nor the use of the expression 'that the survivor shall become the owner' is conclusive. On the other hand the detailed provisions in species to be effective after the death of the survivor in different portions to be given to the different grand sons without any provision as to what was to happen in case of the diminution of the property within the life time of either of the survivor make the will 'mutual wills'. 53. In our opinion the dominant intention is clear i.e. the will may be revoked during the life time of both the executants but after the death of one of the executants and after benefit had been received by the survivor, the property in question must remain intact to be enjoyed by the grand children by the terms of the will which was to become effective on the death of both of the executants. 54. We are of the opinion that definite intention must be there but such intention need not be expressed in a separate document than the will itself. 54. We are of the opinion that definite intention must be there but such intention need not be expressed in a separate document than the will itself. If from the will in question such a definite intention and a separate agreement can be spelled out then in our opinion it would be a case of joint and mutual will." 26. The above opinion set out by the Hon'ble Supreme Court in the above judgment would convey that the predominant intention of the testator should be to confer the right of ownership in favour of the surviving testator and the surviving testator should keep the property intact in order to be succeeded by the ultimate legatees. 27. In the instant case, the property intended to be disposed under Ex.A2 Will was the property jointly acquired by the testators by virtue of the Sale Deed dated 16.03.1985 (Ex.A1). The recitals of the Will does not state anywhere that one of the surviving testator should acquire the ownership in respect of undivided 1/2 share of the other testator and should keep the property intact in order to enable the defendant to succeed as an ultimate legatee. As the property have been jointly acquired by both the testators, it was enjoyed by them jointly during their life time. After the death of one of the testators viz., the father, the mother did not get the ownership in respect of the father's 1/2 share. There was no agreement between the testators that in pursuant to such acquisition of the property, it ought to have been kept intact by not revoking the Will. 28. As stated already, even if it is presumed to be conferment of any interest on the mother by the father, it can be in respect of her 1/2 share alone and the mother admittedly did not disturb the 1/2 share of the father. So far her 1/2 share in the property purchased by Ex.A1 sale deed is concerned, it is a self-acquired property and she has an absolute right and enjoyment and that was not exchanged in favour of the father either through the Will or an agreement or by any other transaction. 29. The defendant would have a better case, if he had contended that the mother had dealt the father's 1/2 share also subsequent to his life time contrary to the disposition already made in respect of the same. 29. The defendant would have a better case, if he had contended that the mother had dealt the father's 1/2 share also subsequent to his life time contrary to the disposition already made in respect of the same. Here is a case where the mother had dealt only in respect of her own 1/2 share which she had chosen to settle in favour of her daughter (the plaintiff herein), by cancelling the Will. In other words, the cancellation of the Will dated 16.05.1985 would amount to cancelling the disposition made by the mother in respect of her own undivided 1/2 share. As the father and mother who had executed Ex.A2 Will, had a distinct and separate interest in respect of the subject property of the Will and there was no intention to consider the testators as mutual legatees of their respective shares, there is no need to fret about the right to revoke the Will either by express reservation or by implied assumption. 30. So the features of the instant Will would only show that it is a joint Will and not a mutual Will. The testators did not assume the role of mutual legatees who had come into an agreement between themselves that they should not revoke the Will during their life times. Undoubtedly, the mother did not inherit 1/2 share of the father as a mutual legatee. There is an expressed recital in the Will that the testators have got the right to revoke the Will at any time during their life time. The postponement of time for enjoyment or title by the legatee is immaterial because under law of Wills, the legatee can acquire title only after the life time of the testator. 31. The features of the Will have the elements of joint disposition and not a mutual disposition of the property belonged to the testators. The defendant is not the ultimate legatee who needed to succeed from the mother by considering her as a mutual legatee. The mother's interest in the property purchased through the sale deed dated 16.03.1985 is very much distinct and separate from that of the father's joint interest and that was not disposed during her life time. The defendant is not the ultimate legatee who needed to succeed from the mother by considering her as a mutual legatee. The mother's interest in the property purchased through the sale deed dated 16.03.1985 is very much distinct and separate from that of the father's joint interest and that was not disposed during her life time. As the mother had opted to revoke the Will and thereby retained her joint interest of 1/2 share, she had cancelled the Will dated 16.05.1985 and executed a settlement in favour of her daughter, the plaintiff herein. 32. The learned Trial Judge had confused and misdirected himself while analysing the essential features of a mutual Will and arrived at a conclusion that the mother did not have the right to revoke the Will. By revoking the Will, the mother had revoked only that part of the disposition which she had chosen to do along with the father jointly through Ex.A2 and not the father's disposition. To put it shortly, through Ex.A2 Will, both the mother and father had chosen to dispose their respective undivided 1/2 share in the property jointly by bequeathing it in favour of the defendant. Though the defendant could get his father's 1/2 share disposed through the Will subsequent to his death, the mother had changed her intention later and revoked the disposition made in respect of her 1/2 share through Ex.A2 Will by cancelling it later. 33. Even though the Trial Court has rightly appreciated the nature of the Will and the nature of transaction and the nature of enjoyment, the First Appellate Court has got misguided itself and arrived at a wrong conclusion by presuming that the Will is a mutual Will. As the appreciation of the First Appellate Court is fundamentally erratic, the same is liable to be set aside. Hence, all the substantial questions of law are answered in favour of the appellant. 34. In the result, this Second Appeal is allowed and the judgment and decree of the learned Additional District Judge, Tirupur dated 31.10.2014 made in A.S.No.57/2012 is set aside and the preliminary decree passed by the Trial Court is restored. No costs. Consequently, connected miscellaneous petition is closed.