Case: Mani Mani And Ors Vs. Mani Joshua

the testator should be taken to have disposed of only that property which was his own and which he was entitled to deal with and bequeath in law. It is urged that, in the present case, the testator had already made a valid and legal settlement in 1935 of the suit property. He could not have thus dealt with or bequeathed that property and in the absence of express and specific mention in Exh. 3 that he was doing so the rule of election would not be attracted.8. The circumstances in which election takes place are set out in Section 180 of the Indian Succession Act. According to its provisions "where a person by his will professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will". The English law, however, applies the principle of compensation also to election. It means the electing legatee has to compensate the disappointed legatee out of the property given to him. As pointed out in the Indian Succession Act by N. C. Sen Gupta, p. 295, the rule which the been embodied in Section 180 does not recognise the principle of compensation. Under its provisions if the legatee has been given any benefit under the will and his own property has also been disposed of by that very will he must relinquish all his claims under the will if he chooses to retain his property. It is not disputed, in the present case, that if the testator has, by Exh. 3, disposed of the property which had been gifted to Joshua the rule embodied in Section 180 would become applicable and Joshua cannot take the property which had been gifted to him if he has chosen to retain the property bequathed to him by the will. The question is whether the testator having omitted to state in Exh. 3 that he was giving away the properties which had been gifted to Joshua in the year 1935 to Mani to whom only a residuary bequest of the entire remaining assets had been made the principle of election will become inapplicable.9. Our attention has been invited on behalf of Joshua to the following observation of the Master of Rolls in Miller v. Thurgood, (1864) 10 LT 255:"If a testor, having an undivided interest in any particular property, disposes of its specifically, and gives to the co-owner of the property a benefit under his will, the question of election arises. But if he disposes of it, not specifically but only under general words, no question of election arises."But as pointed out in para 1097, p. 592. Halsburys Laws of England, Vol. 14, in order to raise a case of election under a will it must be clearly shown that the testator intended to dispose of the particular property over which he had no disposing power. This intention must appear on the face of the will either by express words or by necessary conclusion from the circumstances disclosed by the will. The presumption, however, is that a testator intends to dispose of his own property and general words will not usually be construed so as to include other property.In Whitley v. Whitley, (1862) 54 ER 1104 the wife of the testator was entitled to a share of the produce of the R. estate, which had been directed to be sold. By his will the testator gave all "his share estate and interest" in the R. estate to his daughter and benefit out of his own estate to his widow. It was held that the will raised a case for election as against the widow. The Master of the Rolls (Sir John Romilly) said that the testator intended to dispose of the property by will which was not his but belonged to his wife and she having taken and enjoyed the benefit provided for her under his will must be considered as having elected. The property, must, therefore go as if it had been the testators property. This case illustrates how the rule of election has been applied where, even thought, general words had been used but by necessary conclusion from the circumstances disclosed by the will it was inferred that the testator intended to dispose of the property which belonged to his wife and not to him.According to the footnote in Halsburys Laws of England, Vol. 14 (supra), in the case of a will one may even gather an intention by the testator to include property belonging to another in a gift of residue for it is necessary to construe a will as a whole.Reference has been made to Re Allens Estate, Prescott v. Allen and Beaumont, 1945-2 All ER 264, where a gift of the "residue of my property" was construed as the residue of the testators ostensible property. A fairly strict approach in such cases has been indicated by Chitty, J., in Re Booker; Booker v. Booker, (1886) 54 LT 239, 242 in these words:"A great safeguard in applying that doctrine is this-that you are not merely to strain words to make them include that which does not belong to the testator; but you must be satisfied beyond all reasonable doubt that it was his intention to include that which was not his own, and that you cannot impute to him after having read his will any other intention."It is thus necessary to look at the will and read it carefully which has been done by us and we have no manner of doubt that Uthupu, the testator, intended to include properties gifted to Joshua by the settlement of 1935 in the bequest which he made to Mani of the entire residue. Joshua was thus put to election and could not claim those properties if he wished to take the benefit under the will.

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

Explanation:
1[ds]The only other declaration or statement in the will which deserves notice is thewill is executed by resolving as these and totally changing all the deeds registered by me prior to this and the Wills kept in custody; and this Will alone shall, unless I act otherwise, be and ought to be in force init is quite clear that the testator was somehow under the impression that he was competent to cancel and revoke not only the previous wills but also the two settlements including the one made in the year 1935. It appears that although by the registered deed of 1935 he had gifted certain properties to his wife and two sons he thought that he could undo what he had done by making a will by which he left virtually no property to Joshua since he was annoyed with him. That is apparently the reason why he clearly stated in the will (Ex. 3) in the very beginning that he had executed a will on 9th Makarom this year in accordance with law, invalidating the above two deeds".6. He relented in favour of Joshua and that is the reason why he made the will (Exh. 3) but his state of mind continued to be the same, namely, he considered that he was fully competent and entitled to cancel all previous settlements and wills and start, as if it were, on a clean slate. The detailed bequests which he made (Exh. 3) indicate that he meant to dispose of the entire estate including the properties which had been the subject-matter of the settlement made in the year 1935. There are two strong indications in the will (Exh. 3) of his having dealt with the entire property which he thought he could dispose of or in respect of which he could make bequest and leave legacies on the footing that no title had passed to any of the donees under the settlement of 1935. The first is the recital both in the beginning and towards the concluding part of Exh. 3 that he had cancelled the previous settlements and wills and that the only document which would govern the disposition of properties would be Exh. 3. Even if it be assumed as has been suggested, by learned counsel for Joshua - respondent - that the declaration about invalidating the two deeds of settlement was confined to the first will executed in January 1943, the statement made towards the conclusion of the will (Exh. 3) leaves no doubt that the testator sought to revoke not only the previous wills but also the registered deeds which clearly meant the deeds of settlement executed in 1927 and 1935 respectively. The second significant fact is that the testator purported to give to Joshua five items of property which included certain properties which had been given by the settlement of 1935 to Mariamma and Mani. If the testator did not want to make any disposition of those properties which formed the subject-matter of gift in 1935 there was no reason why he should have given to Joshua properties which had been gifted to Mariamma and Mani. All this could have happened only if the testator was treating the settlement of 1935 as nonexistent having been revoked by him.We are satisfied that a correct reading of the will (Exh. 3) yields the only result that the testator Uthupu treated the entire properties which had formed the subject matter of gift or otherwise as his and which could be disposed of by him as he liked. The High Court was in error in disagreeing with the trial court on this matter.8. The circumstances in which election takes place are set out in Section 180 of the Indian Succession Act. According to its provisions "where a person by his will professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will".