Appeals Nos 5 and 6 of 1955
Appeals from the judgment and decree dated September 15 1952 of the Madras High Court in Second Appeals Nos
2256 of 1947and 2545 of 1948 2 arising
out of the judgment and decree dated September 19 1946 of the Court of Subordinate Judge of Kozhikode in Appeal Suit Nos 336 and 180 of 1946 against the judgment and decree dated October 9 1945 and June 29 1946 respectively of the Court of Districts Munsif Chowghat in O section Nos 131 and 158 of 1945
B K B Naidu for the appellants
V Karunakara Menon and M R Krishna Pillai for the respondents
October 1
The Judgment of the Court was delivered by VENKATARAMA AIYAR J
The point for determination in these two appeals is whether one Kesavan Kaimal who was one of three executants of a will dated February 10 1906 became entitled under that will to the properties which are the subject matter of these appeals
The will is a short one and is as follows  Will executed on 28th Makaram 1081 M E corresponding to 10th February 1906 jointly by Kunhan Kaimal son of Karayamvattath Katbayakkal Kunhu Kutti Amma Kesavan Kaimal son of Theyi Amma and Theyi Amma daughter of Nani Amma of Etathiruthi amsom and Etamuttan desom in Ponnani Taluk
We have hereby settled and agreed that all the movable and immovable properties acquired jointly and separately by us till now and those which we may be so acquiring in future and those which have devolved on us and those which we may yet be obtaining shall be held by us in our possession and under our control and dealt with by us as we please till our death and that subsequent to our death Kalliani Amma s children Kali and Kunhu Kutty Thona Amma s children Parukutty Kunhunni Kochu Govindan and Ramar and the children of the deceased Narayani Amma namely Kunhunniri Kuttiparu and Lakshmikutty and their children and the children who may be born to them as also the children who may be born of them shall as our heirs and legal representatives hold the said properties in their 3 possession and enjoy them hereditarily in equal shares amongst themselves
Except after our death the aforesaid persons shall not lay claim to any of the properties belonging to us
It is settled that in the event of our effecting any transfers or alienations of the said properties
either jointly or severally till our death the aforesaid  persons shall have the right and freedom only in respect of the remaining items of properties to the exclusion of those items of properties included in the above transactions
It is hereby further settled and agreed that subsequent to our death save our legal representatives aforesaid and such of those as may be born hereafter no other persons shall have the right to claim to or right of entry upon the entire properties moveable and immoveable found belonging to us
And we have signed herein in the presence of the undersigned witnesses signed Kunhan Kaimal
    Kesavan Kaimal
   Theyi Amma
 of the three testators Theyi Amma died first the exact date of her death does not appear and is not very material and Kunhan Kaimal died thereafter sometime in 1930
It is the case of Kesavan Kaimal that in the events which had happened he had become entitled by survivorship to all the properties disposed of by the will including those of Kunhan Kaimal and on this footing he conveyed on October 141938 seven items of properties of which three belonged to Kunhan Kaimal to one Sankarankutti Kaimal and on October 16 1944 another three items of properties which belonged to Kunhan Kaimal to Kalyani and Vijayan
These transfers led to the two litigations which have culminated in the present appeals
The legatees under the will dated February 10 1906 instituted O section No 131 of 1945 in the Court of the District Munsif Chowghat then in the Province of Madras for recovery of possession of three items of properties which had belonged to Kunhan Kaimal 4 after redeeming a mortgage for Rs 100 created over those properties on February 3 1901
The plaintiffs claimed that on the death of Kunhan Kaimal in 1930 they had become entitled to those properties as legatees under the will
Defendants 1 to 3 represented the mortgagees
Defendant 6 was Kesavan Kaimal and defendants 4 and 5 were brought on record as persons claiming to be entitled to the suit properties under a deed of transfer by defendant 6 dated October 16 1944
Defendants 4 to 6 contested the suit and pleaded that on a proper construction of the will the properties of Kunhan Kaimal survived to Kesavan Kaimal on the death of the former in 1930 and that the plaintiffs got no title to them
This contention was overruled by the District Munsif and the suit was decreed
There were two appeals against this decree A section No 179 of 1946 and A section No 180 of 1946 in the Court of the Subordinate Judge Calicut the former by defendants 4 and 5 and the latter by defendant 6
The Subordinate Judge agreed with the construction put on the will by the District Munsif and dismissed the appeals
Against that decree defendant 6 preferred section A No 2256 of 1947 in the High Court of Madras
Basing himself on the deed of transfer dated October 14 1938 Sankarankutti Kaimal instituted O section No 158 of 1945 in the Court of the District Munsif Chowghat for recovery of possession of three items of properties of which one belonged to Kunhan Kaimal absolutely and the other two  to him and others as co owners
In the plaint he alleged that there was an oral lease of the properties to the first defendant and to one Kali Amma whose legal representatives were defendants 2 and 3 that the defendants were in arrears in the payment of rent and were disputing his title to the properties and that he was therefore entitled to eject them
Defendant 4 is Kesavan Kaimal the vendor of the plaintiff
The contesting defendants who were the same as the plaintiffs in OS No 131 of 1945 pleaded that under the will they became entitled to all the properties of Kunhan Faimal that the oral lease was untrue and that the 5 suit was barred by limitation
The District Munsif found all the contentions in favour of defendants 1 to 3 and dismissed the suit
 Against this decree there was an appeal A section No 336 of 1946 in the Court of the Subordinate Judge of Ottapalam and that was dismissed the Subordinate Judge agreeing with the District Munsif on all the issues
Against his decree the plaintiff preferred section A No 2545 of 1948 in the High Court of Madras
Both the second appeals came up for hearing before Raghava Rao J who held that on its true construction the will operated to vest in the three testators all the properties covered by it in joint ownership that in consequence on the death successively of Theyi Amma and Kunhan Kaimal their interest survived to Kesavan Kaimal and that the transfers made by him on October 14 1938 and October 16 1944 were valid
In the result both the second appeals were allowed the suit for redemption O section No 131 of 1945 was dismissed and the suit in ejectment O section No 158 of 1945 was decreed
Against this judgment the present appeals have been brought on a certificate granted by this court under article 136
The sole point for determination in these appeals is whether under the will all the three testators became joint owners of all the properties on which it operated
After hearing the question fully argued we have come to the conclusion that that is not the effect of the will and that the judgment of the High Court contra cannot be supported
There were three executants of the will
Each of them possessed properties which were his or her self acquisitions
They also owned some properties which they had jointly acquired but their title to such properties was as tenants in common and not as joint tenants
Each of them would have been entitled to execute a will of his or her properties and if that had been done the legatees named therein would undoubtedly have been entitled to those pro perties
In the present case the legatees who were intended to take were the same persons and it was for that reason that the three testators instead of each executing a separate will jointly executed it
It ist 6 nevertheless a will by which each testator bequeathed properties belonging to him or to her and therefore on the death of each testator the legatees mentioned in the will would be entitled to the properties of the testator who dies
The contention of the respondents which has found favour with the High Court is that the will must be construed as a transfer by the several testators of all their individual properties to themselves jointly as joint tenants
That would really be a transfer inter Vivos and not a will
The word will is widely known and used and it has a well understood significance as meaning a disposition which is to take effect on the death of a person
The executants of the will could not have therefore intended that it should operate inter ViVOs
Moreover if the document was intended to take effect as a present disposition it should have to be stamped under the provisions of the Stamp Act but the will is an unstamped document
Coming to the recitals in the will there are no words by which the executants thereof divest themselves of their individual ownership and vest it in themselves jointly
It is said that that could be implied from the words  all the movable and immovable properties acquired jointly and separately by us till now and those which we may be so acquiring in future and those which have devolved on us and those which we may yet be obtaining shall be held by us in our possession and under our control 
We are unable to read any such implication in those words
It is difficult to imagine how properties which were to be acquired in future could form the subject matter of a disposition in praesenti
On the other band the true purpose of this clause would seem to be to emphasise that the execution of the will does not affect the rights of the testators over their properties and that is an indication the it is to operate as a will
The matter appears to us to be concluded beyond all doubt by the terms of clause 3 which provides that the testators could alienate the properties jointly or severally
If the properties were intended to be impressed with the character of joint property an alienation by any 7 one of them singly would be incompetent
In coming to the conclusion to which he did the learned Judge in the Court below was very largely influenced by the fact that the will dealt with not only the separate properties of the testators but also of their joint properties and that there was one disposition as regards all of them
But this reasoning is based on a misconception of the recitals in the will
The will does not refer to any joint properties of the testators but to properties jointly acquired by them which is very different
They would hold these properties as tenants in common and their share therein would devolve as their separate properties
It was further argued for the respondents that it could not have been the intention of Theyi Amma one of the testators to benefit the legatees under the will in preference to her own son Kesavan Kaimal and that therefore it must be held that she intended that her son who was the youngest of the testators should take all the properties
But if Kesavan Kaimal could himself agree to bequeath his properties to those legatees we see nothing unnatural in his mother also agreeing to bequeath her properties to them they being the heirs of the testators under the Marumakkat tayam Law
Learned counsel for the respondents sought to rely on the subsequent conduct of the parties as showing that they understood the will as conferring a joint estate on the testators
It was said that it was in that belief that Kesavan Kaimal was dealing with the properties of the other testators as his own after their death
It was also said that the conduct of the other members of the tarwad including the plaintiffs showed that they shared that belief
And this was sought to be made out by reference to the proceedings in E A No 320 of 1938 in section C No 480 of 1933
The facts were that one Kunhunni Kaimal obtained a decree against Kesavan Kaimal in section C No 480 of 1933 and in execution of that decree he brought some of the tarwad properties to sale purchased them himself and got into possession
The members of the tarwad then filed an application E A No 320 of 1938 under 0 21 r 100 for redelivery of the 8 properties to them on the ground that the decree and the sale proceedings were not binding on them and that was dismissed
In the order dismissing the application the District Munsif observed that under the will dated February 10 1906 Kesavan Kaimal had the power to transfer the properties
This order was relied on in these proceedings as operating as res judicata in favour of the respondents but that contention was negatived by the Courts below and has not been repeated before us
But these proceedings are now sought to be relied on as showing that the members of the tarwad did not dispute the title of Kesavan Kaimal to the properties which were dealt with by the will
As against this the appellant referred us to a partition deed dated May 16 1915 and a mortgage deed dated March 4 1926 to both of which Kesavan Kaimal was a party in which be and other members of the family had understood the will in question as meaning that the testators held the properties covered by the will in separate  and exclusive ownership
Whatever value one might attach to the above considerations if there was any doubt or uncertainty as to the meaning of the will when once it is held that the language thereof is clear and unambiguous evidence of the subsequent conduct of the parties cannot be admitted for the purpose of limiting or controlling its meaning
In our view the terms of the will are clear and the subsequent conduct of the parties sought to be relied on must be disregarded as wholly inadmissible
We are accordingly of opinion that the will dated February 10 1906 is what it purports to be a will and nothing else
It does not confer any rights inter se on the testators it only vests the title to the properties disposed of by it in the legatees on the death of the testators
In this view the will must be held to be a testamentary disposition by the three testators of their properties operating on the death of each testator on his properties and is in effect three wills combined in one
A joint will though unusual is not unknown to law
In Halsbury s Laws of England Hailsham s Edition Vol 34 p 17 para
12 the law is thus stated 9  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 property
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 
There is a similar statement of the law in Jarman on Wills 8th Ed p 41
The following observations of Farewell J in Duddell in re
Roundway V Roundway 1 are apposite  in my judgment it is plain on the authorities that there may be a joint will in the sense that if two people make a bargain to make a joint will effect may be given to that document
On the death of the first of those two persons the will is admitted to probate as a disposition of the property that be possesses
On the death of the second person assuming that no fresh will has been made the will is admitted to probate as the disposition of the second person s property 
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 respon dents 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
1  592
2 10 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
Appeals allowed


Summary:
The appellant was a manufacturer of motor vehicle parts failing under Item 34 A and components for IC Engines failing under Item 68 of the Central Excise Tariff
The marketing pattern of the appellant was that they sold goods in the wholesale to OE manufacturers Transport Undertakings and Government Bodies and the requirements of the replacement market were met by sale in the wholesale to other persons who were met by sale in the wholesale to other persons who were designated by them as distributors primary wholesale buyers on the basis of agreements with such dis tributors
The Department took the view that sales by the appellant to its distributors would be considered as sales to related persons  on account of the amendment to sec
4 of the Cen tral Excises and Salt Act 1944 which came into force from October 1 1975 and directed the filing of revised price lists showing a discount of 12 12 from the price at which the goods supplied by the appellant were sold by its dis tributors to independent buyers
The appellant complied with this direction under protest taking up the contention that the distributors were also a class of independent buyers which was however rejected by the Assistant Collector
On appeal the Collector Appeals took the view that distributors were not related persons relying on this Court s decision in Union of India vs Bombay Tyres Interna tional Ltd 19831 The appellant then claimed refund of the excess amount of excise duty paid
This was rejected by the Assistant Collector on the ground that except in respect of sales to wholesale distributorsprimary wholesellers and OE manu facturers the excise duty had been paid by the appellant voluntarily
The Customs Excise and Gold Control Appellate Tribu nal dismissed the Appellant s appeal
158 In the appeal to this Court it was contended on behalf of the appellant that the language of section 41 of the Central Excises Act indicates that there could be only one normal price for sales to independent distributors and that as the letter of protest sent by the appellant covered the entire payment of excise duty in those cases where the normal price was fixed on the footing that the distributors of the appellant were related persons no question of limi tation would arise in considering the application of the appellant for refund
On behalf of the respondent it was contended that the protest made by the appellant must be read as limited to the cases of sales by the appellant to the wholesale distribu torsprimary wholesellers and to OE manufacturers and that the other categories of sales must be held not to be covered by the protest
Allowing the appeal this Court HELD 1 In view of the fact that the distributor of the appellant were finally held not to be related persons the excise duty collected in respect of the difference between the price at which the goods were sold by the appel lant to the distributors and the price to which the said goods were sold by the distributors to independent buyers calculated as aforesaid must be held to be excess duty
162D E Indian Oxygen Ltd vs Collector of Central Excise  Collector of Central Excise Madras vs Ashok Leyland Ltd Madras referred to
2 The protests flied by the appellant clearly took up the contention that its distributors could not be regarded as related persons and hence the protests lodged by the appellant must be held to cover all cases where the price at which the appellant sold its goods to its distributors was not regarded as the normal price on the ground that the distributors were related persons
162E F Indian Cements Ltd vs Collector of Central Excise  referred to
3 Rule 233B of the Excise Rules does not prescribe any particular form of protest and hence it is not possible to say on the basis of this rule that the appellant assessee in this case must he deemed to have paid the duty without protest
 163E F