Case: K.S. Palanisami (Dead) Through Lrs Vs. Hindu Community,Citizens Of Gobiche.&Ors


Decision reasoning: 1[ds]18. In view of the above, we are of the view that suit filed by the plaintiff was not barred as under Section 108 of 1959 Act.The bone of contention between the parties is, as to whether, the Will is a joint Will or a joint and mutual Will. According to appellant, the Will is a joint will, which is revocable by testatrix after the death of her husband. On the other hand, learned counsel for the plaintiff contends that the will being joint & mutual will, there is no right of revocation in the testatrix after the death of her husband. It is contended that the will contains agreement of both husband and wife to settle their property in a particular manner i.e. for charities and the testatrix having obtained the benefit under the will after the death of her husband, cannot be allowed to revoke the will, which revocation is directly in breach of the agreement between the husband and wife and contrary to the trust created by the will.The High Court in the impugned judgment has elaborately considered whether a Will is a Joint Will or Joint and Mutual Will. High Court after referring to the large number of cases has come to the conclusion that it is a Joint and Mutual Will, since both the testator and testatrix agreed to devote their properties for carrying out charities, the High Court concluded that intention of both testator and testatrix to give property to charities is manifest from the reading of the Will in its entirety.38. We fully endorse the view taken by High Court that both the Husband and Wife intended to give property into charities and the Will clearly specified the list of charities and the committee of three persons who was to perform the charities. The mutuality to the above extent is clearly found in the Will.39. The main bone of contention between the parties as noted above is the extent of right of survivor with regard to alienation of property mentioned in the Will. Whether testator or testatrix intended that after death of one of them, the survivor shall enjoy the properties only as a life estate without any right of alienation or survivor shall take the properties absolutely with incidence of right of alienation. The High Court on the above aspect had devoted substantial part of the judgment and before us also, learned Counsel for the parties addressed the detailed submissions in support of their divergent stands.The High Court after noticing the contention of Learned Counsel for the defendants formed the opinion that expression `absolutely should be read to mean that the surviving testator, namely, Rangammal would have only the life interest. Following has been stated by the High Court in paragraphMr. S.V.Jayaraman, learned Senior Counsel for the respondents 4 and 5 and Mr. V.K.Muthuswami, learned Senior counsel for the Respondents 6 and 9 submitted that after the death of one of the testators, the other is given the right of absolute enjoyment and only out of the remaining property, if any, the charities are to be performed. We are of the view, the expression `absolutely should be read to mean that the surviving testator, namely, Rangammal would have only the life interest to enjoy the rent and income from the combined properties and she was allowed to use and enjoy the properties subject to the fiduciary duty to keep the properties in tact for charities and she would have no unqualified or unrestricted power to enjoy the properties as she pleases to defeat or to the detriment of the gift over to the6. The above provision in the Will clearly intends that any property purchased shall treated to be added in the document and further any property sold shall be deleted from the document and the remaining properties form part of this document.47. The above statement clearly contemplates possibility of sale of any property which shall be deleted from the description of the properties as mentioned in the document. One more aspect of the Will needs to be noted. As extracted above, in the last part of the third paragraph after his/her lifetime word used are "and carry on under mentioned charities from and out of the income derived from them without alienating the same". Reading the whole paragraph together the word his/her lifetime has been used in reference to survivor who survives after the death of one of the spouses. Thus, after the death of survivor, the Will contemplates that charities shall be carried out of the income derived from the property without alienating the same. Thus, though in the same paragraph, after the death of both the testators, the charities are required to be carried out from the income derived from the properties without alienation of the same, whereas the same restriction i.e. "without alienation" has not been put in the earlier sentence of the same paragraph when the rights of survivor have been referred to as `absolutely with all the rights.48. High Court in its judgment has cut down/abridged the expression absolutely on the ground of mutual intention of the parties in paragraph 66 of the judgment. High Court, however, at the same time has held that expression absolute enjoyment as employed in the Will as a sort of comfort or cushion to the survivor who meets with an unforeseen or unexpected contingencies, if any absolute necessity arises.The intention in testamentary disposition has to be primarily found out from the actual words used in the Will. The court is not entitled to ignore clear words or add something of its own or dilute the meaning of any clear word used in the Will. The solemn duty of the court is to find out the intention of testator and thereafter to give effect to such intention. On the reading of the Will, the intendment of testator/testatrix is clear that survivor shall have absolute right of enjoyment of properties. There is no reason not to give effect to said intendment on the ground that the testator and testatrix have mutually intended to set apart the property for charity and holding that survivor shall have right of disposition be not in the interest of the trust.50. We do not find any word or any indication in the Will to give a life estate to survivor. The Will clearly intended that survivor shall have absolute right to the properties and after his/her death; the charity shall be carried out from the income of the properties without alienation of the properties. High Court itself has noticed that testator was a person who was well versed with the law of Wills since two earlier Wills were already executed by Chettiar.51. We are of the view that testators intended that survivor should be given right of alienation. Why the same word "without right of alienation" could not have been used in the earlier part of the same paragraph when they used the same word in end of the paragraph while providing for carrying out charities after the death of the survivor from the income derived from the properties without alienating the same.52. We, thus, are of the clear opinion that the Will intended to give survivor absolute right with regard to properties with further intendment that after the death of survivor, the remaining property should be used for carrying out the charities. The clear intention of testator/testatrix while executing the Will that the charity shall be carried out from the income of the properties is not given up even during life time of survivor. The obligation to use the income of properties for charity is attached with the property described in the Will subject to giving survivor absolute right with regard to properties.As noted above, the High court in paragraph 66 of the judgment also had considered that expression absolute enjoyment as employed in the Will was a sort of comfort or cushion to the survivor to meet with any unforeseen or unexpected contingencies, if any necessity arises.57. We, thus, are of the view that giving absolute right to the survivor during his lifetime to deal with the properties in no manner cannot be said to be right given in disregard of object of trust. The charitable purpose of the Will is not lost even if survivor is given absolute right. The obligation of survivor to act in furtherance of object as agreed by both the testators survives and binds the survivor. Although the Will was irrevocable after the death of survivor but the Will expressly granted absolute right to survivor.58. In view of the foregoing discussion, we endorse the view of High Court that the Will dated 27.9.1968 was a joint and mutual Will, but with a rider that said joint and mutual Will was with an express condition that survivor shall have absolute right to deal with the property keeping the object of trust alive. Giving of right of disposition to the survivor was also one of the joint decision and agreement between the testator and testatrix which does not diminish the nature and character of Will as joint and mutual Will.59. Thus, in the present case, unless the alienation by the survivor i.e. Rangammal is held to be completely in breach of object of trust and fraud on trust, the Court is to be slow in disregarding such alienations. In the suit filed by the plaintiff although reference to alienation made by Rangammal were made and the High Court in its judgment in paragraph 81 has detailed the alienation but the challenge to the alienation before the trial court as well as before the High Court was only on the ground that Rangammal was not competent to alienate the property mentioned in the Will after the death of Palaniappa Chettiar.60. We are thus of the view that the alienation made by Rangammal in favour of appellants could not have been declared null and void as has been done by the High Court. Alienation made by Rangammal during her lifetime after the death of Palaniappa Chettiar was fully covered by paragraph 3 of the Will as noted above.61. We are thus of the view that the decision of the High Court in so far as in declaring the alienation made by Smt. Rangammal after the death of Palaniappa Chettiar during her lifetime as null and void deserves to be set aside. Thus alienation made by Smt. Rangammal by registered sale deeds as noticed by the High Court in favour of appellants needs to be deleted from the list of the properties as described in the plaint and they shall not be included in the trust property by virtue of the Will deed dated 27.09.1968. We, however, add that said deletion is only with regard to alienations made by Smt. Rangammal and not to the alienations made by defendant no. 4 & 5. The Declaration made by the High Court in so far as alienations made by defendant no. 4 & 5 as null and void are maintained.Creation of Trust by Will dated 27.9.196862. The High court has elaborately dealt with the matter of creation of Trust by Will in paragraphs 79 to 80 of the judgment.63. While noticing the nature and contents of the Will, we have noted above that in the life time of survivor charities have to be carried out from the income derived from properties without alienating the same. With regard to the charities, the Will states that during life time of testator and testatrix the properties shall be managed by themselves and desired charities be carried out either jointly or individually and in case testator and testatrix are not in a position to carry out the charity during their life time a committee consisting of three members shall perform charity.There is no pleading or material on record to indicate that during life time of Palaniappa Chettiar or Rangammal at any point of time they expressed their inability to carry out the charity or had requested the three members committee to carry out the charity. Thus, above eventuality as contemplated by the Will never came into existence during the life time of Palaniappa Chettiar and Rangammal but as per provisions of the Will dated 27.9.1968 on the death of survivor i.e. Rangammal on 27.12.1980, the three members committee was obliged to carry out the charities and the Trust came into operation.Will dated 27.11.After considering the oral evidence the trial court held that the Will is not proved. The trial court noticed several suspicious circumstances and discrepancies and it was held that Ex.D109 has not been executed by Rangammal in a sound and disposing state of mind and the same is not a true and valid document. Defendant Nos.4 and 5 had filed A.S. No.606/1989 challenging the judgment of the trial court. The said appeal was elaborately considered by the High Court in its judgment in paragraphs 86 to 114. The High Court came to the conclusion that Will dated 27.11.1980 alleged to have been executed by Rangammal is not a true and genuine Will of her. The said conclusion has been arrived at by the High Court after considering entire evidence on record. We find no infirmity in the aforesaid conclusion. The appeal filed by defendant Nos. 4 and 5 has rightly been dismissed. We see no reason to interfere in the judgment of the High Court so far as dismissal of A.S.No.606 of 1989.