Case: Kochu Govindan Kaimal &amp; Others Vs. Thayankoot Thekkot Lakshmi Amma &amp; Others

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 Marumakkattayam 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 S. C. No. 480 of 1933. The facts were that one Kunhunni Kaimal obtained a decree against Kesavan Kaimal in S. 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 O. 21, R. 100 for redelivery of the 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. 10. 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 he 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. 11. A joint will, though unusual, is not unknown to law. In Halsbury Laws of England, Hailshams Edition, Vol. 34, page 17, para. 12, the law is thus stated :"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 the 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 Edition, page 41. The following observations of Farewell, J. in Duddell in re; Roundway v. Roundway, 1932-1 Ch 585 at p. 592 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 he 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 persons property ......" 12. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 hand, the true purpose of his 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 that it is to operate as a will. The matter appears to us to be concluded beyond all doubt by the terms of Cl. 3 which provided 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 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 propertiesWhatever 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 one12. 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.