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

2. 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 Kathayakkal 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 dealt with by us as we please till our death and that subsequent to our death, Kalliani Ammas children, Kali and Kunhu Kutty, Thona Ammas 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 possession and enjoy them hereditarily in equal shares amongst themselves2. Except after our death, the aforesaid persons shall not lay claim to any of the properties belonging to us3. It is settled that in the event of our effecting any transfers or alienation 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 transactions4. 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 movable and immovable found belonging to usAnd we have signed herein in the presence of the undersigned witnesses-(signed) Kunhan Kaimal( " ) Kesavan Kaimal( " ) Theyi Amma."3. 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 14, 1938 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 litigation, which have culminated in the present appeals.

Reasoning: 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.