DR. K. S. PALANISAMI (DEAD) THROUGH LRS. versus HINDU COMMUNITY IN GENERAL AND CITIZENS OF  GOBICHETTIPALAYAM AND OTHERS
[2017] 4 S.C.R. 511, Supreme Court of India, 2017
Outcome: Disposed off
Segment: Body
[2017] 4 S.C.R. 511 
DR. K. S. PALANISAMI (DEAD) THROUGH LRS. 
A 
v. 
HINDU COMMUNITY IN GENERAL AND CITIZENS OF 
GOBICHETTIPALAYAM AND OTHERS 
(Civil Appeal No.5924 of2005) 
MARCH 09, 2017 
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.] 
B 
Tamil Nadu Hindu Religious and Charitable Endowments Act, 
1959 - s.108 - Bar under - Bar with regard to suit or other legal 
C 
proceeding is in respect of the administration or management of a 
religious institution - There is no case set up by the appellant that 
suit filed by the plaintiff related to a religious institution, as 
contemplated by 1959 Act - Therefore, suit filed by the plaintiff 
was not barred u!s. 108 of the Act. 
D 
Will - Joint or Joint and Mutual Will - In the instant case, 
challenge was to the character of Will whether it was joint or joint 
and mutual will - Reading of the Will in its entirety showed that the 
testator and testatrix who were husband and wife had agreed to 
devote their properties for carrying out charities - Will clearly 
specified their intention to give property into charities and specified 
E 
the list of charities and the committee of three persons who was to 
perform the charities - The element of mutuality was clearly found 
in the Will - Therefore, the Will was joint and mutual Will and not 
mere joint Will. 
Will - General principles of construction of Will - Discussed -
F 
In the instant case, testator and testatrix were husband and wife -
'['he Will provided that on the death of any of the
spouse, survivor 
shall enjoy the entire properties absolutely with all the rights -
"absolutely with all the rights"- Interpretation of - Held: 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 
G 
ignore clear words or add something of its own or dilute the meaning 
of any clear word used in the Will - In the instant case, the Will 
clearly intended that survivor shall have absolute right to the 
properties and after his/her death, the charity shall be carried out 
511 
H
" 
512 
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A from the income of the properties without alienation of the 
properties - 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 lifetime of survivor - The 
obligation to use the income of properties for charity is attached 
B 
c 
with the property described in the Will subject to giving survivor 
absolute right with regard to properties - Thus, unless the alienation 
by the survivor was held to be completely in breach of object of 
trust and fraud on trust, the court is to be slow in disregarding the 
alienation - Alienation made by survivor in favour of appellants 
after the death of joint testator was, therefore, fully covered by the 
Will and was not null and void - Alienation made by defendant 
no.4 and 5 on the basis of another Will bequeathing properties in 
their favour by testatrix was null and void as the said Will alleged 
to have been executed by survivor was not true and genuine will of 
the survivor. 
D 
Disposing of the appeals, the Court 
HELD: 
1. Bar on suit under section 108 of Tamil Nadu Hindu 
Religious and Charitable Endowments Act, 1959 
. E 
A plain reading of Section 108 indicates bar with regard to 
suit or other legal proceeding in respect of the administration or 
management of a religious institution. Unless the provisions of 
Act are extended to charitable endowments, the bar under
Section 
108 shall not be attracted. There is no case set up by the appellant 
that suit filed by the plaintiff related to a religious institution, as 
F 
contemplated by 1959 Act. Therefore, suit filed by the plaintiff 
was not barred as under Section 108 of 1959 Act. [Paras 15, 17, 
18) [525-G-H; 526-F-G) 
2.1 Nature and content of WILL Dated 27.9.1968 
G 
The High Court rightly came to the conclusion that it was 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 was manifest from the reading of the 
Will in its entirety. Both the Husband and Wife intended to give 
H
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
513 
AND CITIZENS OF GOBICHETTIPALAYAM 
property into charities and the Will clearly specified the list of A 
charities and the committee of three persons who was to perform 
the charities. The mutuality to the above extent was clearly found 
in the Will. [Paras 32, 37, 38] [539-H; 543-D-F] 
2.2 The intention of testator/testatrix in testamentary 
disposition has to be gathered from the Will itself and the words 
B 
used therein. The disposition made in the Will provides that on 
the death of any of the spouse, survivor shall enjoy the entire 
properties absolutely with all the rights. What is the connotation 
of words 'absolutely with all the rights?', whether the above 
provision in the Will can be read as only life estate i.e. right of C 
enjoyment and receiving of rent, income or absolute right 
indicates the exercise of all the rights including the right of 
alienation. One more part of the Will, which is appended at the 
end after description of the properties, is relevant. The said 
provision in the Will clearly intends that any property purchased 
shall treated to be added in the document and further any property D 
sold shall be deleted from the document and the remaining 
properties form part of this document. This 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. In the last part of the 
third paragraph after 'his/her lifetime' word used are "and carry 
E 
F 
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 testatrix, 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 G 
sentence of the same paragraph when the rights of testatrix have 
been referred ~o as 'absolutely with all the rights'. On the reading 
of the Will, the intendment of testator/testatrix is clear that 
survivor shall have absolute right of enjoyment of properties. 
H
514 
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A 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. [Paras 
40, 41, 45, 46, 47, 49] [544-A-D; 545-E-H; 546-A-D; 547-B] 
B 
2.3 There is no word or any indication in the Will to give a 
c 
life estate to survivor. The testators intended that testatrix 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 testatrix from the income derived from the properties 
without alienating the same. Thus, the Will intended to give 
survivor absolute right with regard to properties with further 
intendment that after the death of testatrix, the remaining property 
should be used for carrying out the charities. The clear intention 
D 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 testatrix. 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 
E 
F 
the death of survivor but the Will expressly
granted absolute 
right to survivor.[Paras 50, 51, 52, 57] [547-C, D-F; 549-A-B] 
2.4 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 ioint anq mutual Will. 
Thus, unless the alienation by the survivor is held to be 
completely in breach of object of trust and fraud on trust, the 
G Court is to be slow in disregarding such alienations. In the suit 
·filed by the plaintiff although reference to alienation made by 
survivor were made and the High Court in its judgment 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 survivor was not competent to alienate the property 
H
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
515 
AND CITIZENS OF GOBICHETTIPALAYAM 
mentioned in the Will after the death of testator. Thus the A 
alienation made by survivor in favour of appellants could not have 
been declared null and void as was done by the High Court. 
Alienation made by survivor during her lifetime after the death 
of joint testator was fully covered by the Will. Thus the decision 
of the High Court in so far as in declaring the alienation made by 
B 
survivor after the death of joint testator during her lifetime as 
null and void deserves to be set aside. Thus alienation made by 
survivor 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. 
C 
(Paras 58, 59, 60 and 61) [549-B-H] 
3. Creation of Trust by Will dated 27.9.1968 
There is no pleading or material on record to indicate that 
during life time of testator and survivor at any point of time they 
expressed their inability to carry out the charity or had requested D 
the three members' committee to carry out the charity, Thus, 
above eventuality as contemplated by the Will never came into 
existence during their life time but as per provisions of Will dated 
27.9.1968 on the death of survivor on 27.12.1980, the thre·e 
members committee was obliged to carry out the charities and
E 
the Trust came into operation. [Para 65] [550-A, H; 551-A-B) 
4. Will dated 27.11.1980 
Defendant no. 4 and 5 claimed that survivor by a registered 
will dated 27.11.1980 bequeathed her entire properties in favour 
of defendant no.4 and 5. After considering the oral evidence, the 
F 
trial court held that the Will was not proved. The trial court noticed 
several suspicious circumstances and discrepancies and it held 
that the said Will was not executed by survivor in a sound and 
disposing state of mind and the same was not a true and valid 
~document. Defendant Nos.4 and 5 challenged the judgment of G 
the trial court. The High Court came to the conclusion that Will 
dated 27.11.1980 alleged to have been executed by survivor was 
not a true and genuine Will !Jf her. The said conclusion was arrived 
at by the High Court after considering entire evidence on record. 
There is no infirmity in the said conclusion. The appeal filed by 
H
516 
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A defendant Nos. 4 and 5 was rightly dismissed. The testatrix had 
the absolute right to deal with the properties mentioned in the 
Will and alienations made by her during her life time are saved 
by the Will and the judgment of the High Court holding sales in 
favour of the appellant as null and void is unsustainable and is 
B 
hereby set aside. The judgment of the High Court declaring sale 
deeds executed by defendant Nos.4 and 5 as null and void is 
maintained. All alienations made by defendant Nos.4 and 5 are 
null and void and those properties shall be treated as part of the 
Trust property. Judicial Officer who has been directed by the 
High Court to frame the scheme for the Trust shall frame the 
. C i;cheme expeditiously. [Paras 65, 68) (551-B, E-H; 552-A, D-F] 
D 
E 
. F 
G 
H 
Minakshi Ammal v. Viswanatha Aiyar ILR 33 Madras 
406; Kochu Govindan Kaima/ & Others v. Thayankoot 
Thekkot Lakshmi Amma and Others AIR 1959 SC 71 : 
[1959) 1 Suppl. SCR 1; Kuppuswami Raja And Anr: v. 
Perumal Raja And Ors. AIR 1964 Madras 291; 
Dilharshankar C. Bhachecha v. The Controller of Estate 
Duty, Ahmedabad (1986) 1 SCC 701 : [1986) 1 SCR 
94; Sreemutty Soorjeemoney Dossee v. Denubundoo 
Mullick (1854-57) 6 MIA 526; Rajendra Prasad Bose 
and another v. Gopal Prasad Sen AIR 1930 PC 242; 
Gnambal Ammal v. r Raju Ayyar and others AIR 
1951 SC 103 : [1950] SCR 949; Navneet Lal alias 
Rangi v. Gokul & Others (1976) 1 SCC 630 : [1976) 
2 SCR
924; Govind Raja v. Mangalam Pillai AIR 
1933 Madras 80; Birmingham & Ors. v. Renfrew & 
Ors. 57 Commonwealth Law Report 666; Dufour v . 
Pereira (1769) 21 ER 332 - referred to. 
Halsbury s Laws of England s•h Edition Vol. 102 -
referred to. 
Case Law Reference 
ILR 33 Madras 406 
[1959) 1 Suppl. SCR 1 
AIR 1964 Madras 291 
referred to 
referred to 
referred to 
Para 24 
Para 26 
Para 27
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
517 
AND CITIZENS OF GOBICHETTIPALAYAM 
[1986) 1 SCR 94 
referred to 
Para 30 
A 
AIR 1930 PC 242 
referred to 
Para 33 
[1950] SCR 949 
referred to 
Para 34 
[1976] 2 SCR 924 
referred to 
Para 36 
B 
AIR 1933 Madras 80 
referred to 
Para 44 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5924 
of2005. 
From the Order dated 07.04.2005 by the High Court ofJudicature c 
at Madras in A.S. Nos. 851 of 1989 
WITH 
C. A. Nos. 5925, 5926 and 6469 of2005. 
M. S. Ganesh, K. Ramamoorthy, R. Balasubramaniam, Ratnakar 
Das, S. Balakrishnan, Sr. Advs., R. Ayyam Perumal, K. Seshachary, D 
Ms. Enakshi Mukhopadhyay, N. Shoba, Sri Ram J. Thalapthy, 
V. Adhimoolam, Shilp Vinod, M. A Chinnasamy, Ms. C. Rubavathi, .. 
G. Sivalamurugan, L. K. Pandey, Ram Lal Roy, R. N. Keshwani, P. Raja 
Rani, V. Senthil Kumar, V. Prabhakar, Ms. Jyoti Prashar, S. Rajappa, 
Mrs. Revathy Raghavan, M. Yogesh Kanna, Ms. Nithya, Partha Sarathi, 
E 
. Vikas Mehta, Ms. Anushree Menon, Karandeep Khanna, Mis. Keswani 
& Co., Senthil Jagadeesan, Advs. for the appearing parties. 
The Judgment of the Court was delivered by 
ASHO K BHUSHAN, J. 1. These appeals have been filed against 
the common judgment dated 7'h July, 2005 of Madras High Court in 
F 
·.Appeal Suit(AS) No.851 of 1989 and Appeal Suit (AS)No.606of1989. 
These appeals arise out of Original Suit No.76 of 1981 instituted by 
respondent No. I to these appeals. The parties hereinafter shall be 
referred
to as described in the Original Suit No.76of1981. 
2. Civil Appeal No.5924 of 2005 has been filed by Dr. KS. G 
Palanisami who was defendant No.13 in the Original Suit. Civil Appeal 
No.5925 of 2005 has been filed by G.K. Perumal and Ramayummal 
who were defendant Nos.4 and 5 in the Original Suit. Civil Appeal No.5926 
of 2005 has been filed by Thirugnanasambandam and Dr. M.R. Sibbian 
who were defendant Nos.7and10 in the Original Suit. Civil Appeal No. 
H
518 
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A 
6469 of 2005 has been filed by GK. Perumal and Ramayummal who 
were defendant Nos. 4 and 5 in the Original Suit. 
3. Brief facts of the case necessary to be noted for deciding these 
appeals are: 
(A) One Palaniappa Chettiar and his wife, Chinammal @ 
B 
Rangarnmal possessed considerable properties in Gobichettipalayam 
Taluk including 29 houses and 96.950 acres of Agriculture land. 
Rangammal possessed certain agricultural land in Sa thy Taluk also. Both 
Palaniappa Chettiar and his wife, Rangammal jointly executed a Will 
dated 27.9.1968. It is stated in the Will that couple do not have any 
c issue and there is no hope that they will live long and their relatives are 
not fit to enjoy the properties. TheWill further stated that on the death of 
any one of them, survivor shall enjoy the entire property. The Will 
enumerated various charities to be carried from the income derived from 
the properties. Three Members Committee was constituted for carrying 
out the charitable objects. The Will in List No.I enumerated the details 
D 
of house properties, agricultural properties in the name of Palaniappa 
Chettiar and List No.2 contained the house and agricultural properties in 
the name of Chinammal @ Rangammal. After execution of the Will, on 
5.10.1969 Palaniappa Chettiar died. After the death of Palaniappa 
Chettiar, Rangammal alienated about I 0 properties by separate sale deeds 
E 
which were in her name as well few
properties which were in the name 
of her deceased husband. 
(B) Defendant Nos.4 and 5 claimed that Rangammal by a registered 
Will dated 27.11.1980 bequeathed her entire properties in favour of 
defendant Nos.4 and 5. Smt. Rangammal died on 24.12.1980.Afterthe 
F 
death of Rangammal, defendant Nos.4 and 5 made several alienations 
of the properties belonging to Rangammal and her deceased husband on 
the strength of Will dated 27. 11.1980. 
(C) Respondent No.I claiming to be representative of Hindu 
Community in General and Citizens ofGobichettipalayam filed Original 
G 
Suit No.76of198 I impleading Commissioner of Hindu Religious and 
Charitable Endowment, Madras as defendant No.I, Revenue Divisional 
Officer, Gobichettipalayam as defendant No.2 and District Munsif, 
Gobichettipalayam as defendant No.3 along with other defendants who 
claimed to be transferees from Rangammal. Defendant Nos.4 and 5 
were imp leaded who claimed a Will dated 27. I I. I 980 from Rangar_nmal 
H
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
519 
AND CITIZENS OF GOBICHETIIPALAYAM (ASHOKBHUSHAN,J.] 
of the entire properties apart from sale deed from Rangammal. Plaintiffs' 
A 
case in the suit was that Palaniappa Chettiar and his wife, Rangammal 
by registered Will dated 27. 9 .1968 created a Trust and made 
arrangements for due performance of charitable objects. The power of 
management and administration of the Trust was given in the Will to 
defendant Nos. I to 3 who were authorised to deal with the Trust property 
B 
without any power of alienation. It was pleaded that Will dated 27.9.1968 
was a mutual and irrevocable Will. It was pleaded that Palaniappa Chettiar 
and his wife during their life time could not have acted in derogation of 
the Will. The plaintiff further stated that purported Will dated 27 .11.1980 
was not executed by Chinnammal @ Rangammal in a sound and 
disposing state of mind and the same was brought by defendant Nos.4 
C 
and 5 by fraud, undue influence and coercion. Defendant Nos.6 to 13 
are said to be purchasers of some of the items of the suit properties 
from Rangammal and some from defendant Nos.4 and 5. Plaintiffs pleaded 
that defendants are trespassers of the trust properties covered under 
the Will dated 27. 9 .1968. The plaintiffs were interested in the Trust to be 
D 
administered by defendant Nos.I to 3 or other new .Trustees to be 
appointed by the Court. The plaintiffs prayed for necessary arrangements 
for the
management of the Trust requiring defendant Nos. I to 3 to enter 
upon their duties as Trustees and take up the management of the Trust 
or make arrangement for the appointment of other Trustees for proper 
management of the Trust. Defendants filed written statements in the 
E 
suit. 
(D) The trial court framed 17 issues in the suit. The trial court 
held that Will-Ex.P.5 dated 27.9.1968 is not a mutual Will but a joint Will 
and after the death of Palaniappa Chettiar the Will became irrevocable. 
(E) The trial court further held that Will dated 27. 9 .1968 is a true 
and valid document. It was further held that plaintiffs were entitled to 
represent the Hindu Community in General and Citizens of 
Gobichettipalayam under Order 1 Rule 8 CPC. Trial court further held 
that Will dated 27 .11.1980 claimed by defendant N os.4 and 5 is not proved 
and it has not been executed in good, sound and disposing state of mind. 
Ex.D-109, Will dated 27.11.1980 was held not a true and valid Will. The 
trial court, came to the conclusion that Trust is not formed under the Will 
dated 27. 9 .1968, hence, plaintiffs were not entitled for framing a scheme 
under Section 92 CPC. The suit was dismisc"r1. 
F 
G 
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520 
SUPREME COURT REPORTS 
[2017) 4 S.C.R. 
A 
(F) Against the judgment of the trial court dated 2"'1 February, 
1989 two Appeal Suits (AS) were filed in the Madras High Court. 
A.S.No.851 of 1989 was filed by the plaintiffs against the trial court 
judgment dismissing the Original Suit No.76 of 1981. A.S.No.606 of 
1989 was filed by GK. Perumal and Ramayummal, defendant Nos.4 
B 
and 5 against the judgment of the trial court in so far as it rejected the 
Will dated 27 .11.1980. Both the appeal suits were decided by the Madras 
High Court by the impugned judgment dated 7'h April, 2005. The High 
Court dismissed the A.S.No.606of1989 concurring with the judgment 
of the trial court in so far as it has rejected Will dated 27 .11.1980. 
A.S.No.851 of 1989 was allowed by the High Court and the judgment of 
C 
the trial court in so far as it was against the plaintiffs was set aside. The 
High Court held the Will dated27.9.1968 as mutual and joint Will. It was 
held that after the death of Palaniappa Chettiar, Rangammal had no 
right to alienate any property and all alienations of the properties made 
by her after the death of Palaniappa Chettiar were null and void. 
D 
(G) The High Court disposed of both the Appeal Suits in the 
E 
F 
G 
H 
foll owing manner: 
"116.In the result, 
(i) 
A.S.No.851 of 1989 stands allowed. The Judgment 
of the Trial Court in so far as it is against the 
Plaintiffs and the decree is set aside. 
(ii) 
A.S. No. 606 of 1989 stands dismissed. The finding
of the Trial Court on the issue No.13 framed by it 
stands confirmed. 
(iii) The result is, learned Subordinate Judge, 
Gobichettipalayam or the Judicial Officer having 
jurisdiction over the 
matter is permitted to 
discharge the Receiver after the Receiver '6ubmits 
his accounts and on being satisfied that the Receiver 
can be discharged. 
(iv) 
Learned Judicial Officer having jurisdiction over 
the case is directed to frame a proper Scheme for 
the trust and while framing the Scheme, he need not 
include the District Munsif, Gobichettipalayam as 
one of the trustees, though the makers of the Will
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
521 
AND CITIZENS OF GOBICHETTIPALAYAM [ASHOKBHUSHAN, J.] 
(Ex.A-5) have expressed their desire that the District A 
Munsif, Gobichettipalayam should be one of 
trustees. We are of the view, it will not be proper to 
induct the District Muns if as one of the trustees as it 
may happen that litigation in respect of the trust as 
well as its properties may come up before him in his 
B 
official capacity and it may not be advisable to induct 
him as one of the trustees. Learned Judicial Officer 
is also directed to take into account the wishes of 
the testators of Ex.A-5 while framing the Scheme, as 
they wished that the relatives of either of them should 
be excluded from the enjoyment and management of C 
their properties. While appointing the trustees, 
learned Judicial Officer is directed to keep in mind 
that the persons of unimpeachable character and 
high integrity and at least, some of them, if possible 
from the community to which Palaniappa Chettiar D 
belongs should be appointed as trustees.; It will be 
open to the learned Judge to consider the entrustment · 
of the administration and management of the trust 
to the Administrative General and Office Trustee (AG 
& OT) of this Court as he will be functionirrg under 
the guidance of this Court. 
E 
(v) 
Since the plaintiffs have not prayed for costs, there 
will be no order as to costs in both appeals. " 
4. Civil Appeal No.6469 of2005 has been filed against
the judgment 
of the High Court in A.S.No.606of1989 by which judgment the appeal 
filed by defendant Nos.4 and 5 has been dismissed. All other three appeals 
have been filed against the judgment of the High Court in A.s .. No.851 of 
1989 by which judgment the High Court set aside the judgment of the 
trial court and decreed the suit of the plaintiffs as noted above.· 
5. In Civil Appeal Nos.5925 of2005 and 6469 of 2005, w.e have 
heard Shri M.S. Ganesh, learned senior counsel, appearing for the 
appellants. Mr. K. Ramamoorthy, learned senior counsel has appeared 
for the appellants in Civil Appeal No.5924 of 2005. Shri .R. 
Balasubramaniam and Shri Ratnakar Das, learned senior counsel, have 
appeared in Civil Appeal No.5926 of 2005. For the respondents, we 
F 
G. 
H
522 
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A have heard Shri S. Balakrishnan, learned senior counsel and Shri Vikas 
Mehta, learned counsel. 
B 
c 
6. The submissions made by the l~arned senior counsel for the 
appellants in first three appeals are almost similar. Separate arguments 
have also been advanced by Shri M.S. Ganesh in C.A.No.6469/2005. 
Learned senior counsel for the appellants, Shri M.S. Ganesh contended 
that the suit filed by the plaintiffs was not maintainable and was barred 
by Section 108 of the Tamil Nadu Hindu Religious and Charitable 
Endowments Act, 1959(hereinafter referred to as '1959 Act'). He 
contended that although trial court has specifically framed issue No.7, 
as to whether the suit is barred by the provisions of Section l 08 of the 
1959 Act, but trial court did not properly consider the issue and erred in 
holding that there is no bar in filing the suit. It was further contended that 
Will dated 27.9.1968 was not a joint and mutual Will but was only a joint 
Will. A plain reading of the Will indicates that after the death of one of 
the testators, the survivor had absolute right to deal with the property 
D and there was no embargo on the right of survivor to dispose of the 
property after the death of Palaniappa Chettiar. He submitted that 
alienations made by Rangammal after death of Palaniappa Chettiar were 
within her authority and High Court had committed error in holding the 
said alienations as null and void. It is submitted that
Will itself not created 
E 
F 
G 
I-I 
any trust. It is contended that two essential conditions for mutual Will, 
i.e., (i) Asurvivingtestator must have received benefit from the deceased 
testator and (ii) It should have been executed in pursuance of an 
agreement that the testators shall not revoke the mutual Will, were not 
satisfied in the present case. A specific clause in the Will gives liberty to 
the survivor to revoke the Will and confers an absolute right and title to 
the properties to the survivor which fully indicates that Rangammal had 
rigli.t to alienate the properties after the death of her husband. The 
transferees were bona fide purchasers for value. 
7. Shri Ramamoorthy, learned senior counsel attacked the judgment 
of the High Court raising almost similar submissions. Shri Ramamoorthy 
further contended that the contents of Will makes it clear that absolute 
right was given to survivor and use of words "carva-cutantiram" in the 
original Will which is in Tamil language, clearly indicates that absolute 
right was given to survivor, Rangammal and alienations made by her in 
favour of defendants were well within her authority. Defendants being 
bonafide purchasers, who invested money in the property, should have·
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
523 
ANDCITIZENSOFGOBICHETTIPALAYAM[ASHOKBHUSHAN,J.] 
been considered by the High Court and at least purchasers who have 
A 
purchased from the survivor ought to have been protected. The Will is 
not a mutual Will but only a joint Will. The Will clearly states that survivor 
can revoke the Will and execute a new Will. 
8. Learned counsel for other appellants have also adopted the 
· above submissions. 
B 
9. Shri Ganesh in support of Civil Appeal No.6469 of 2005 
submitted that the High Court failed to note that Will dated 27 .11.1980 
does not appear to be on the whole an improbable, unnatural and unfair 
instrument. The High Court failed to notice that mere exclusion of near 
relations from the Will by the testatrix and preferring the appellants in c 
recognition of their valuable services during her old age cannot be 
' construed as suspicious circumstances. In the Will dated 27.9.1968 it 
was categorically stated that their properties should not go to their 
relations. The High Court committed error in relying on the suspicious 
circumstances as found by the trial court with regard to Will dated 
27.11.1980. 
D 
10. Learned counsel for the plaintiffs-respondents refuting the 
submissions ofleamed counsel for the appellants contends that Will dated 
27. 9 .1968 was mutual and joint Will. The Will was executed by the husband 
and wife with one mind and with mutual agreement. Charitable disposition 
of Palaniappa
Chettiar is apparent even from his first Will executed on 
E 
l 5'h July, 1931 where he disposed of substantial part of his prope11ies for 
charity. Although, his above Will was superseded on l 5'h July, 1956 
executed in favour of his wife Rangammal, but both husband and wife 
after acquiring considerable properties decided to devote their properties 
to charity. Consequently, the registered Will dated 27.9.1968 was 
F 
executed. The object and purpose of the Will was to create a Trust of 
their properties, income of which was to be utilised for the enumerated 
charities as mentioned in the Will. After the death of Palaniappa Chettiar, 
Rangammal had no authority to revoke the Will. She had no right of 
alienation and giving any right of alienation of properties shall be simply 
defeating the intention of testators as delineated in the Will dated G 
27.9.1968. Smt. Rangammal was entitled to hold and enjoy the properties 
upto her life but could not defeat the trust, subsequent alienation after 
the death of Palaniappa Chettiar, had rightly been ignored by the High 
Court. It is submitted that the suit is not barred by Section I 08 of Tamil 
Nadu Hindu Religious and Charitable Endowments Act, 1959 as 
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A contended by the counsel for the appellants. The suit was rightly filed in 
the representative capacity and leave of the Court was obtained under 
Section 92. It is contended that the Will does not create any religious 
endowment within the meaning ofTamil NaduAct. The suit under Section 
92 was fully maintainable with regard to charitable endowment made by 
B theWilldated27.9.1968. 
11. Learned counsel for the parties have placed reliance on various 
judgments of this Court, different High Courts as well as judgments of 
foreign Courts which shall be referred to while considering the 
submissions in detail. 
c 
12. From the submissions made by the learned counsel for the 
parties and the materials on record following are the main points which 
arise for consideration in these appeals: 
( 1) Whether the suit filed by the plaintiff was barred under Section 
108 of the Tamil Nadu Hindu Religious and Charitable 
D 
Endowments Act, 1959 ? 
(2) Whether the Will dated 27.9.1968 was a joint Will or a joint 
and mutual Will, irrevocable after death of one of the testators? 
(3) Whether Will dated 27.9.1968 contemplated that after the 
death of one of the spouse the surviver shall not possess 
E 
power of alienation of any of the properties and the word 
"absolutely with all the rights" used in the Will should be read 
to mean that surviving testator would have only life interest 
to enjoy the rent and income? 
(4) Whether alienations
made by Chinnammal@ Rangammal 
F 
after the death of Palaniappa Chettiar were in violation of 
the Will and invalid? 
(5) Whether Will dated 27.9.1968 contemplated a creation of 
trust and as per the terms and conditions of the Will the trust 
was to come in the operation after the death of one of the 
G 
spouse or after the end of the life of the both or from any 
other eventuality? 
H 
(6) Whether Will set up by defendant Nos.4 and 5 i.e. 27 .11.1980 
has rightly been held to be not proved by the trial court as 
well as by the High Court ?
DR. K. S. PALANISAMl (DEAD) v. HINDU COMMUNITY IN GENERAL 
525 
AND CITIZENS OF GOBICHETTIPALAYAM (ASHOKBHUSHAN, J.] 
(7) The relief to which, if any, the appellants are entitled in these A 
appeals. 
BAR ON SUIT UNDER SECTION 108 OF TAMIL NADU 
HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS 
ACT, 1959 
13. Learned counsel for the appellant submitted that suit filed by 
B 
the plaintiff being barred under Section 108 of 1959 Act, the High Court 
erred in law in decreeing the suit. Learned counsel submitted that trial 
court had framed an issue No. 7 to the following effect: 
"Whether the suit is barred by the provision of Section 108 of 
the Hindu Religious and Charitable Endowment Act. " 
C 
14. Trial court had answered the above issue against the defendant. 
Before the High Court, it does not appear that the appellants have raised 
the issue pertaining to the bar of the suit under Section 108. After 
considering the sul:imission oflearned counsel for the parties, the High 
Court had framed oniy four points of consideration which did not include 
D 
the bar under Section 108. Learned counsel for the appellant, however, 
submitted that the issue being issue of jurisdiction, the appellants may be 
allowed to raise in this appeal. We have permitted the learned counsel 
for the appellant to raise the issue. Learned counsel for the appellant 
submitted that under 1959 Act, Section 108 provides as follows: 
E 
"No suit or other legal proceeding in respect of the 
administration or
management of a religious institution or 
any other matter of dispute for determining·or deciding which 
provision is made in this Act shall be instituted in any court of 
Law, except under and in conformity with, the provisions of F 
this Act." 
15. Learned counsel further relies on Section 5, according to which, 
the provisions under Section 92 of the CPC 1908 shall cease to apply to 
Hindu Religious Institutions. Refuting the above submission, learned 
counsel for plaintiff-respondent contends that the bar under Section 108 
G 
is not attracted with regard to suit filed by the plaintiff in view of the fact 
that suit did not relate to any Hindu Public Religious Institutions. A plain 
reading of Section I 08 indicates bar with regard to suit or other legal 
proceeding is in respect of the administration or management of a religious 
institution. Section 5 on which reliance has been placed is, as follows: 
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A 
"The following enactments shall cease to app~y to Hindu 
religious institutions and endowments, namely:-
B 
(a) The Tamil Nadu Endowments and Escheats Regulation, 
1817 (Tamil Nadu Regulation Vll of 1817); 
(b) The Religious Endowments Act, 1863 (Central Act XX of 
1863); 
(c) The Charitable Endowments Act, 1890 (Central Act VI of 
1890); 
(d) The Charitable and Religious Trusts Act, 1920 (Central 
c 
Act XIV of 1920); and 
D 
E 
F 
(e) Section 92 and 93 of the Code of Civil Procedure, 1908 
(Central Act V of 1908)." 
16. Section 3 of the Act contains a heading 'Power to extend Act 
to charitable endowments'. Section 3 sub-section ( l) is as follows: 
"3.(1) Where the Government have reason to believe that any 
Hindu or Jain public charitable endowment is being 
mismanaged, they may direct the Commissioner to inquire, or 
to cause an inquiry to be made by any officer authorised by 
him in this behalf. into th affairs of such charitable endowment 
and to report to them whether, in the interests of the 
administration of such charitable endowment, it is necessary 
to extend thereto all or any of the provisions of this Act and 
of any rules made thereunder. " 
17. Thus unless the provisions of Act are extended to charitable 
endowments the bar under Section I 08 shall not be attracted. There is 
no case set up by the appellant that suit filed by the plaintiff relates to a 
religious institution, as contemplated by 1959 Act. 
18.
In view of the above, we are of the view that suit filed by the 
plaintiff was not barred as under Section I 08 of 1959 Act. 
G NATURE AND CONTENT OF WiLL DATED 27.9.1968 
19. The points No. 2, 3, 4 and 5 being inter-related are taken 
together. Before we proceed to consider the respective submissions of 
learned counsel for the parties, it is necessary to look into the Will dated 
27.09.1968. As noted above, the Will dated 27.9.1968 was executed by 
H Palaniappa Chettiar and his wife Chinnammal alias Rangammaljointly.
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
527 
AND CITIZENS OF GOBICHETTIPALAYAM [ASHOKBHUSHAN,J.) 
The original will is in Tamil Language; an English translation of which A 
has been brought on record as annexure P. 1 in C. A. No. 6469 of2005 
which translation has been referred and relied by learned counsel for 
both the parties. At the end of the will, there is description of the property, 
List 1 contain the properties in the name of Palaniappa Chettiar and List 
2 contains the properties in the name of Chinnammal alias Rangammal. 
B 
The entire will( except the description of the properties) is extracted as 
follows: 
"Ex. AS dated 27-9-1968 
The Registration of the Will executed by Palaniappa Chettiar 
and Rangammal: 
C 
Doct. No. 7611968: 
Sri Ramajayam 
"This Deed of Will executed on this 27'" day of September, 
l 968, corre.1pondi11g to Tamil 11'" day of Purattasi Keelaga D 
year by N. Palaniappa Chettiar son of Sruvalur 
Angampalayam Narayana Chettim; residing at Veerapandi 
Village Cusba, Gobichettipa/ayam taluk-1 and Chinnammal 
alias Rangammal wife of Palaniappa Chettaiar and daughter 
of Karuppanna Chettiar-2 jointly and with full consent 
WITTNESSETH: 
E 
We have executed this Will and register the same in respect of 
our self acquired properties since we do not have any issue 
though married long back, that we are not in a position to 
adopt any one, that there is no hope th~t we will live long, 
that our relatives are not flt to enjoy the
properties and lay a · F 
claim for whatever reason and that no one should go to a 
Court, claiming right or interest therein. 
On the death of anyone of us, the survivor shall enjoy 
the entire properties, which are our self acquired properties, 
absolutely with all the rights and after his/her life time, and G 
carry on the under-mentioned charities from and out of the 
income derived from them without alienating the same. 
We have the right to modifY, or cancel this Will and to 
write a new Will during our life time either jointly or 
individually. 
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This deed will come into effect after our life time. 
During our life time we shall manage the property 
ourselves, do the desired charities either jointly or 
individually. 
In case we are not in a position to carry out the desired 
charities during our life time a committee consisting of the 
following authorities shall be formed to carry out the 
following charities: 
The details of the charities: 
1) A good choultry in the name of us shall be constructed 
at Palani for Hindus to use the same freely. 
Its Administration will be with Endowment Commissioner. 
2) A portion of the income from our Properties shall be 
used for doing morning pooja permanently for Palani 
Andavar. 
3) A portion of the income from our properties shall be 
spent for feeding the poors at the time of Thai Poosam in 
our name. 
4) At Gobichettipalayam where our life prospered, an 
Educational Institution in our name shall be started and 
its administration will be left either to the Government or 
Municipality. The expenses therefore shall be met from a 
portion of income derived from our properties. 
5) A Maternity Ward shall be constructed at Gobi in our 
name from out of a portion of the income from our 
properties. The administration thereof shall be left to the 
Government. 
The details of 3 member committee to perform the charities. 
1. The Endowment Commissioner - Permanent President. 
The name of two permanent members: 
1.
The Revenue Divisional officer. Gobichettipalayam. 
2. The District Munsif. Gobichettipalayam.
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
529 
AND CITIZENS OF GOBICHETTIPALAYAM [ASHOKBHUSHAN, J.] 
The above 3 persons shall have no right to sell our A 
properties. They can spend only the income from the 
properties. 
The earlier Will executed in Doct. No.19156 shall stand 
cancelled automatically. 
In case we have not collected the amounts due to us or B 
to discharge our debts during our life time, then the said 
committee shall have the power to collect the same and to 
discharge the debts. The committee shall lease out or give on 
rent our lands and houses, collect the income therefrom and 
utilise the same for the aforesaid charities. All the expenses c 
shall be met only from the income of the properties." 
20. 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 D 
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. 
21. We thus, first proceed to examine the nature and characteristics 
of joint will and joint & mutual Will. Though, the laws relating to joint & 
mutual Wills originated in Roman Dutch Law, which by passage of time 
have been approved and applied both by English and American Courts. 
There are ample precedents of our country also adopting the concept of 
joint & mutual wills. 'Theobald' on Wills 19t11 Edition (Sweet & Maxwell) 
has defined joint Will and mutual Will in para 1-011 and 1-012 in following 
manner: 
"J-011. Persons may make joint wills which are revocable at 
any time by either of them or by the survivor. A joint will is 
looked upon as the will of each testator, and may be proved 
on the death of one. But the survivor will be treated in equity 
E 
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G 
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as a trustee of the joint property if the equitable doctrine of 
mutual wills applies. Under this doctrine there must be an 
agreement for the survivor to be bound by the arrangement 
between them; but the mere fact of the execution of a joint 
will is not sufficient to establish such an agreement for the 
survivor to be bound. If this doctrine applies, a legacy to a 
legatee who survived the first testator. but predeceased the 
second, does not lapse. Where a joint will is followed by a 
separate will which is conditional on a condition that fails, 
the joint will is not revoked even though the subsequent 
separate will contains a revocation clause. " 
I·-OI2. The term "mutual wills" is used to describe joint or 
separate wills made as the result of an agreement between 
the parties to create irrevocable interests in favour of 
ascertainable beneficiaries. The agreement is enforced after 
the death of the first to die by means of a constructive trust. 
There are often difficulties as to proving the agreement, and 
as to the nature, scope, and effect of the trust imposed on the 
estate of the second to die. 
The revocable nature vf the wills under which the interests 
are created is fully recognised by a probate court; but in 
certain circumstances equity protects and enforces the interests 
created by the agreement despite the revocation of his will by 
one party after the death of the other without having
revoked 
his will, i.e. the survivor's property will be affected by the 
trust imposed so as to give effect to the agreement. " 
22. Halsbury's Laws of England S'h Edition Vol. I 02 under the 
heading 'Testamentary Disposition', in para 9 & I 0 defines joint Wills & 
mutual Wills in following manner: 
"9. Joint Wills. A joint will is a will made by two or more 
testators contained in a single document, duly executed by 
each testator, and disposing either of their separate properties 
or of their joint property. It is not, however, recognised in 
English law as a single will. It is in effect two or more wills, 
and it operates on the death of each testator as his will 
disposing of his own separate property; on the death of the 
first to die it is admitted to probate as his own will and on the
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
531 
AND CITIZENS OF GOBICHETTIPALAYAM [ASHOKBHUSHAN,J.] 
death of the survivor, if no fresh will has been made, it is 
A 
admitted to probate as the disposition of the property of the 
survivor. Joint wills are now rarely, if eve1; made. 
JO. Mutual wills. Wills are mutual when the testators confer 
on each other reciprocal benefits, which may be absolute 
benefits in each other:~ property, or life interests with the same 
B 
ultimate disposition of each estate on the death of the survivor. 
Apparently, a mutual will in the strict sense of the term is a 
joint will, but, where by agreement or arrangement similar 
provisions are made by separate wills, these are also 
conveniently known as mutual wills. Wills which by agreement 
confer benefit on persons other than the testators, without 
C 
the testators conferring benefits on each other, can also be 
mutual wills. Where there is an agreement not to revoke mutual 
wills and one party dies having stood by the agreement, a 
survivor is bound by it. 
The doctrine of mutual wills has been said to be D 
anomalous and unprincipled, so that the authorities do not 
always speak with one voice on what is truly essential to the 
doctrine or as to the mechanisms by which it operates or as 
to the consequences of its application. However, it has been 
held that there is at least clear guidance on what must be 
established before the doctrine can be invoked in that there 
must
be an irreducible core of a contract between Tl and T2 
that in return for Tl agreeing to make will in form X and not 
to revoke it without notice to T2, then T2 will make a will in 
form Y and agree not to revoke it without notice to Tl. it 
seems that the precise form and terms of the underlying 
contract do not have as great a significance as the finding 
that such a contract actually exists and was entered into. 
it appears that where it is established that there is a 
clear agreement in the mutual wills or elsewhere, that the wills 
E 
F 
are to be mutually binding (whether or not expressed in 
G 
language of revocation) the law will give effect to that intention 
by way of a 'floating trust' and the trust so created is not 
destroyed by the remarriage of the second testator after the 
death of the first. " 
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A 
23. One of the earliest English cases, dealing with the mutual Will 
is Dufour vs. Pereira, (1769) 21 ER 332. In the above case a husband 
and wife have executed a Will jointly. Lord Camden in the above case 
stated as follows: 
"The question is, as the husband by the mutual will assents to 
B 
his wifes right, and makes it separate, whether the second 
will by the wife is to be considered as void. · 
c 
D 
It struck me, at first, more from the novelty of the thing than 
its difficulty. 
The case must be decided by the laws of this country. The 
will was made here; the parties lived here; and the funds are 
here. 
Consider how far the mutual will is binding, and whether the 
accepting of the legacies under it by the survivor, is not a 
confirmation of it. 
I am of opinion it is. 
It might have been revoked by both jointly; it might have been 
revoked separately, provided the party intending it, had given 
notice to the other of such revocation. 
E 
[421] But I cannot be of opinion, that either of them could, 
during their joint lives, do it secretly; or that after the death 
of either, it could be done by the survivor by another will .. 
It is a contract between the parties, which cannot be rescinded, 
but by the consent of both. The first that dies, carries his 
F 
part of the contract into execution. Will the Court afterwards 
permit the other to break the contract? Certainly not. 
The defendant Camila Rancer hath taken the
benefit of the 
bequest in her favour by the mutual will; and hath proved it 
as such; she hath thereby certainly confirmed it; and therefore 
G 
I am of opinion, the last will of the wife, so far as it breaks in 
upon the mutual will, is void. 
H 
And declare, that Mrs. Camilla Rancer having proved the 
mutual will, after her husbands death; and having possessed 
all his personal estate, and enjoyed the interest thereof during
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
533 
ANDCITIZENSOFGOBICHETTIPALAYAM[ASHOKBHUSHAN,J.] 
her life, hath by those acts bound her assets to make good all A 
her bequests in the said mutual will; and therrf<1re let the 
necessary accounts be taken. " 
• 
24. A Division Bench of Madras High Court, in an early case 
reported in Minakshi Ammal vs. Viswanatha Aiyar, ILR 33 Madras 
406, had occasion to consider mutual & joint Wills. In the above case, a B 
husband and wife made joint Will in December 1897. The husband died 
in the year 1899, thereafter in the year 1904, the testatrix executed a gift 
to her daughter. Plaintiff, claiming to be beneficiary of joint will brought 
_ a suit. The issue was, as to whether, at the instance of testatrix the Will 
was irrevocable or revocable. 
c 
25. Chief Justice Sir Arnold White after referring to 'Theobald 
on Wills' stated as follows: 
" ........... With regard to the authorities, so far as I am aware, 
the only authority which can be said in any way to support 
the contention advanced by the plaintiff, who is the respondent D 
before us, is a judgment of Lord Camden which is very shortly 
reported in a case in Chancery decided so long ago as 1769, 
Dufour v. Pereira, 1 Deck 419. That case, however, was 
discussed and distinguished in the later case of Walpole v. 
Oxford,(1797) 30 Eng.,Rep., 1076 and the decision in that 
case is clearly against the plaintiff's contention that the ~ill E 
is irrevocable. The Privy
Cow1cil case Denyssen ·v. 
Mostert,(1872) LR, 4 PC, App. 236 is an appeal from the Cape 
of Good Hope, and it turns, at any rate to some extent, on 
questions of Roman and Dutch Law. So far as I know, there 
is nothing in that case which helps the contention put forward 
F 
on behalf of the plaintiff. But the most recent, and, as it seems 
to me, the clearest exposition of the law on this question is 
that given by Lord Barnes, Sir Gorell Barnes, as he then was, 
in the case of Stone v. Hoskins, (1905) LR, Prob. Dn., 194 at 
page 197, he says: It appears to me that the result is tolerably 
plain. If these two people had made wills which were standing 
G 
at the death of the first to die, and the survivor had taken a 
benefit by that death, the view is perfectly well founded that 
the survivor cannot depart from the arrangement on his part, 
because by the death of the other party, the will of that party 
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and the arrangement have become irrevocable; but that case 
is entirely different from the present, where the first person to 
die has not stood by the bargain and her 'mutual will' has in 
consequence not become irrevocable. " By the "mutual will" 
he means the will made by the survivor. "The only object of 
notice is to enable the other party to the bargain to alter his 
or her will also, but the survivor in the present case is not in 
any way prejudiced. He has notice as from the death. '·' 
Applying that principle to the facts of the case before 
us, we have to see whether it can be said that the survivor 
has taken a benefit. It was suggested that she took a benefit 
by the death of the co-testatm: That may be. It may be that in 
this case if the wife died first the husband took a benefit and 
if the husband died first the wife took a benefit; but the benefit 
so taken was under the ordinary law and not under the 
provisions of the will. As I understand the will, there is nothing 
which gives the surviving testator or testatrix a benefit on the 
death of the testator or testatrix who predeceases." 
26. This Court had occasion to consider the concept of joint Will 
and mutual Will in Kochu Govindan Kaimal & Others vs Thayankoot 
Thekkot Lakshmi Amma and Others, AIR 1959 SC 7/(also reported 
in 1959(1) Suppl. SCR 1). In the above case, three persons executed 
a Will on 10.02.1906 jointly. They had bequeathed
their properties in the 
manner as indicated in the Will. After their deaths, the question arose 
whether the Will was a joint Will or a mutual Will? This Court held the 
Will not to be a mutual Will and while explaining the joint Will and mutual 
Will following was stated in para 11 & 12: 
"11. A joint will, though unusual, is not unknown to law. In 
Hals bury:~ Laws of England, Hai/shams Edition, Vol. 34, page 
17, ·para. 12, the law is thus stated: 
"A joint will is a will made by two or more testators 
G 
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". 
'H 
i'..''
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
535 
AND CITIZENS OFGOBICHETTIPALAYAM [ASHOKBHUSHAN, J.] 
There is a similar statement of the law in Jarman on Wills, 8'" 
A 
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 B 
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 C 
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 documents. 
A will is mutual when two testators confer upon each other D 
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 
E 
the present case, a bequest by the testators to themselve~. 
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 · F 
in the legatees under the will dated February JO, 1906.and 
therefore neither Kesavan Kaimal nor his transferees under 
the deeds could lay any claim to them. " 
27. A Division Bench of the Madras High Court had occasion to 
elaborately consider the concept of joint Will and mutual Will in 
G 
Kuppuswami Raja And Anr. vs Perumal Raja And Ors., AIR 1964 
Madras 291. In the Madras case, two brothers Perumal and Chinnappa 
executed a Will on 31.10.1942. The Will disposed the properties to 
different relatives. Chinnappa died in the year 1 049, Perumal, the surviving 
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A brothe.r executed a 'registered Will' dated 09.08.1950, cancelling and 
modifying the earlier Will, in which the plaintiffs were not entitled to 
claim any right in terms of the earlier Will. 
28. The suit of plaintiff was dismissed by the learned Munsif, 
which decree was set-aside and suit was decreed in appeal. High Court 
B restored the judgment of the Munsif. In the Letters Patent Appeal, the 
Madras High Court has restored the judgment, decreeing the suit. After 
noticing the English, American and Indian cases, the Division Bench of 
Madras High Court in para 32 has laid down as following: 
c 
D 
E 
F 
"32 .... We confess that the matter is not free from difficulty. 
But after a careful consideration of all the aspects of the 
matter, we are inclined to take the view that a joint mutual 
WiU becomes irrevocable on the death of one of the testators 
if the survivor had received benefits under the mutual Will, 
and that there need not be a specific contract prohibiting 
revocation when the arrangement takes the form of not two 
simultaneous mutual Wills but one single document. In fact in 
some of the cases referred to above this aspect that if the two 
testators had executed one single document as one single 
mutual Will the position may be different is actually adverted 
to. In our opinion, if one single document is executed by both 
the brothers using the expressions "our property" "our present 
wishes" "our Will" and
such similar expressions, it is strong 
r cogent evidence of the intention that there is 110 power to 
revoke except by mutual consent. " 
29. The Madras High Court in the above case has returned the 
findings that Perumal had taken benefit under the joint Will hence, he 
could not have revoked the Will and executed another Will, modifying 
the bequeath earlier made. 
30. This Court in Dilharshankar C. Bhachecha vs The 
Controller Of Estate Duty, Ahmedabad, (1986) 1 SCC 701, had 
G elaborately considered the concept of Joint & mutual Will. The above 
case was also a case of a joint Will executed by a husband and wife with 
regard to a Bungalow. Wife died on 03.01.1954, after her death estate 
duty on her share of the property was paid. Subsequently, on 25.10.1964, 
the husband also died, after his death, the question arose, as to whether, 
the estate duty was payable only on half share of husband or the estate 
H
DR. K. S.PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
537 
AND CITIZENS OFGOBICHETTIPALAYAM [ASHOKBHUSHAN, J.] 
duty was payable on entire property, which devolved on husband. The 
A 
issue was, as to whether, as per the Will, after the death of wife, husband 
had only limited share in estate or he became full owner of the entire 
bungalow. 
31. The contention of the Revenue was that the Will clearly 
mentioned that survivor shall be the owner of the house, hence, the 
B 
husband became the owner of the entire house and the Will was a joint 
Will with full proprietary right to the husband. The case of the appellant 
was that tht: Will was joint & mutual and husband had no right of 
alienation. High Court held, their being no agreement that survivor shall 
not revoke the Will or do nothing to diminish the quantum of the property 
going into the hands of subsequent legatee, survivor took the absolute 
C 
interest in the property. This Court after referring to 'Theobald on Wills', 
'Halsbury's Laws of England', 'Jarman on Wills' and after referring to 
several English cases and judgments of this Court and judgment of Madras 
High Court in Kuppuswami Raja (supra) has laid down following in 
para 50. In para 55 propositions were laid down. Para 50 and 55 
D 
are quoted as below :-
"50. Therefore the will must be construed in its proper light 
and there must be definite agreement found from the tenor of 
. the Will or aliunde that either of the joint executants would 
E 
not
revoke the Will after receiving the bpwfit under the Will. 
Such definite agreement need not be express; it can be implied. 
The terms of the Will have been set out exhaustively. It was 
undoubtedly a joint Will. The property in question has been 
described as "our property". The expression 'owner' has also 
been used in the manner indicated in the sentence "During 
our lifetime we shall continue to be the joint owners of the 
F 
land bungalow and blocks with their common bathroom and 
two privies .... and shall be jointly entitled to the rents and 
income of the said land and blocks and the user and rent of 
the bungalow". The Will goes on further to say that on the 
death of one of them, the survivor shall become the "owner 
G 
of .. and shall become entitled to the rents and income and 
user of the said land bungalow and blocks including 
garage..... ". Therefore it is clear that the ownership which 
the joint executants contemplated was the user during the 
life time and entitlement to the rents and income of the same. 
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It is this ownership which was to pass on the death of either 
of them to the survivor and the Will thereafter goes on to 
. say that "the provisions hereinafter contained shall become 
effective after the death of the survivor of us". And thereafter 
after the death it is provided "we hereby devise and bequeath 
our said furnished bungalow .... ". The gift of the property to 
the three grandchildren as owners in full sense is to take effect 
. on the death of the survivor of both the executants. It is clear 
that the property was intended to be kept intact for the 
enjoyment of the ultimate legatees and during the lifetime of 
either of them the property would not in any way be parted 
with or diminished. This intention, expressed in the implied 
terms in the bargain in the Will, in our opinion, would be 
fortified by devising the property to three grandchildren in 
species i.e. in specific form and not providing for any money 
or compensation for diminution of any part thereof before 
coming into effect of the Will in question. If that is the position 
then, in our opinion, there is a definite agreement not to revoke 
the Will by one of the executants after he or she has received 
the benefit under the Will on the death of either of them." 
"];;;~ "55. In view of the above discussion, the following 
propositions follow: 
(1) Whether estate duty was payable on the whole of the 
property or not would
depend on whether the deceased 
Kamlashankar Gopalshankar had "disposing power" over 
the share of Mahendraba inherited by him or 11er death or 
not? 
(2) The above question would depend on the construction of 
the joint Will - did it create any mutuality among the executants 
of the joint Will? Whether Kamlashankar Gopalshankar 
having accepted and after his wife '.5 deqth, was competent to 
do anything contrary to the ultimate bequest? Before the death 
of the first of the executants, the agreement remained 
contractual one in consideration of mutual promises. It could 
have been at that stage revoked by mutual agreement or even 
by unilateral breach, giving rise at the most to an action for 
damages. But after the death of the first one without revoking 
his or her own Will makes the joint Will irrevocable by the
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
539 
AND CITIZENS OFGOBICHETTIPALAYAM [ASHOKBHUSHAN,J.) 
survivor[see Theobald (supra)]. But there must be an A 
agreement that the Wills would not be revoked after the death 
of one of the executants or disposition will. not be made 
contrary to the Will after the death of one of the executants. 
Such an agreement may appear from the Will or may be proved 
outside the Will but that is not established by the mere fact 
B 
that the Wills are in identical terms. If such an agreement is 
shown, each party remains bound. 
(3) A different and separate agreement must be spelled out 
not to revoke the Will after the death of one of the executants. 
That agreement must be clear though need not be by a 
separate writing but must follow as a necessary implication 
which would tantamount to an express agreement. 
(4) The predominant intention of the executants at the time of 
the execution, after the acceptance of the benefit of the 
execution makes the Will in this case irrevocable by the 
survivor of the executants. 
(5) Judged by the principles indicated above, in the facts 
and circumstances of this case, we are of the opinion because 
of the specific clause that it was intended that the grandsons 
would receive the benefit in species and there being no 
provision for making up the deficiency or diminution if any, 
it must follow that there was mutuality and Kamlashankar 
Gopalshankar was not competent to dispose of the
property 
in any manner contrary to the ultimate disposition. 
(6) The fact that estate duty was paid is 11011 sequitur. 
(7) The payment of wealth tax by Kamlashankar 
Gopalshankaron the whole estate after the death of 
Mahendraba is not relevant. 
(8) The question of strict construction of the taxing statute 
and the principle that one who claims exemption must strictly 
come within the purview is not relevant in this case because 
the exemption follows on the interpretation of the Will. " 
32. Before we advert to the Will dated 27.09.1968, it is useful to 
recall few well settled mies ofconstruction ofa Will. Privy Council in an 
old decision, Sreemutty Soorjeemoney Dossee Vs. Denubundoo 
c 
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A Mullick (1854-57) 6 MIA 526, laid down following rules of construction 
B 
c 
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ofa Will. 
"The Hindu Law, no less than the English law, points to the 
intention as the element by which we are to be guided in 
determining the effect of a testamentary disposition; nor. so 
far as we are aware, is there any difference between the one 
law and the other as to the materials from which the intention 
is to be collected. Primarily the words of the will are iv be 
considered. They convey the expression of the testator '.s 
wishes; but the meaning to be attached to them may be affected 
by surrounding circumstances, and where this is the case those 
circumstances no doubt must be regarded. Amongst the 
circumstances thus to be· regarded, is the law of the country 
under which the will is made and its dispositions are to 'be 
carried out. If that law has attached to particular words a 
particular meaning, or to a particular disposition a particular 
effect, it must be assumed that the testator. in the dispositions 
which he has made, had regard to that meaning or to that 
effect, unless the language of the will or the surrounding 
circumstances displace that assumption. " 
33. In Rajendra Prasad Bose and another. Vt!rsus Gopal Prasad 
E Sen, AIR 1930 Privy Council 242, laid down that "the duty of the 
Court is to ascertain the intention from the words used in the document" 
·and it further held:-
F 
G 
H 
" ... once the construction is
settled, the court is bound to carry 
out the intention as expressed and no other. .. " 
34. Justice B.K. MukherjeaJ., speaking for this court in Gnambal 
Ammal Vs. T. Raju Ayyar and others, AIR 1951 SC 103, on 
construction of the Will laid down following in paragraph I 0:-
"10. The cardinal maxim to be observed by Courts in 
construing a will is to endeavour to ascertain the intentions 
of the testator. This intention has to be gathered primarily 
from the language of the document which is to be read as a 
whole without indulging in any conjecture or speculation as 
to what the testator would have done if he had been better 
informed or better advised. In construing the language of
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
541 
AND CITIZENS OF GOBICHETTIPALAYAM [ASHOKBHUSHAN, J.] 
the will as the Privy Council observed in Venkata Narasimha 
A 
Vs. Parthasarathy, 41, l.A.51 at p.70 (211.C. 339 PC.), 
"the Courts are entitled and bound to bear in mind other 
matters than merely the words used. They must consider 
the surrounding circumstances, the position of the testator, 
his family relationship, the probability that he would use 
B 
words in a particular sense, and many other things which 
are often summed up in the somewhat picturesque figure. 
'The Court is entitled to put itself into the testators 
armchair' ...... But all this is solely as an aid to arriving at 
a right construction of the will, and to ascertain the 
meaning of its language when used by that particular C 
testator in that document. So soon as the construction is 
settled, the duty of the Court is to carry out the intentions 
as expressed, and none other. The Court is in no case 
just(fied in adding to testamentary dispositions ...... Jn all 
cases it must loyally carry out the will as properly construed, 
D 
and this duty is universal, and is true alike of wills of every 
nationality and every religion or rank of life." 
35. In the above case, a word of caution was also given in 
paragraph 9, which is to the following effect:-
"9. In course of the arguments, we have been teferred by the 
learned counsel on both sides to- quite a large number of 
decided
authorities, both English and Indian, in support of 
their respective contentions. It is seldom profitable to compare 
the words of one will with those of another or to attempt to 
find out to which of the wills, upon which decisions have 
been given in reported cases, the will before us approximates 
closely. Case_s are helpful only in so far as they purport to lay 
down certain general principles of construction and at the 
present day these general principles seem to be fairly well 
settled." 
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F 
36. General principles for construction of a Will have been 
G 
reiterated by this court in a large number of cases. It shall be sufficient 
to refer to a three Judge Bench judgment of this court in Navneet Lal 
alias Rangi Vs. Gok11l & Others, 1976 (1) SCC 630. After referring 
to judgment of Privy Council and several judgments of this court, certain 
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A principles were enumerated in paragraph 8 of the judgment, which is to 
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the following effect:-
"8. From the earlier decisions of this Court the following 
principles, inter alia, are well established: 
(1) In construing a document whether in English or in 
vernacular the fundamental rule is to ascertain the 
intention from the words used; the surrounding 
circumstances are to be considered ; but that is only for 
the purpose of finding out the intended mea11i11g of the 
words which have actually been employed.(Ram Gopal 
V. nand Lal) 
(2) In construing the language of the will the court is entitled 
to put itself into the testator '.s armchair (Venkata 
Narasimha J-: Parthasarathy) and is bound to bear in 
mind also other matters than merely the words used. It 
must consider the surrounding circumstances, the position 
of the testat01; his family relationship, the probability that 
he would use words in a particular sense . ... But all this 
is solelv as an aid to arriving at a right construction of 
the will, and to ascertain the meaning of its language 
when used by that particular testator in that document. 
(Venkata Narasimha's case(s11pra) and Gnambal Ammal 
V. T. Raju Ayyar) 
(3) The true intention of the testator has to he gathered not 
by attaching importance to isolated expression but by 
reading the will as a whole with all its provisions and 
ignoring none of them as redundant or contradictory.
(Raj 
Bajrang Bahadur Singh V. Tlwk11rain Bak/ltraj Kuer) 
(4) The Court must accept, if possible, such construction as 
would give to every expression some effect rather than 
that which would render any of the expressions 
inoperative. The court will look at the circumsta11ces 
under which the testator makes his will, such as the state 
of his property, of his family and the like. Where 
apparently conflicting dispositions can be reconciled by 
giving ji1ll effect to eve!)' word used in a document, such 
a construction should be accepted instead of a
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
543 
AND CITIZENS OF GOBICHETTIPALAYAM (ASHOKBHUSHAN, J.] 
construction which would have the effect of cutting down 
A 
the clear meaning of the words used by the testator. 
Further, where one of the two reasonable constructions 
would lead to intestacy that should be discarded in favour 
of a construction which does not create any such hiatus. 
(Pearey Lal V. Rameshwar Das) 
(5) It is one of the cardinal principles of c:onstruction of wills 
that to the extent that it is legally possible effect should 
be given to every disposition contained in the will unless 
B 
the law prevents effect being given to it. Of course, if 
there are two repugnant provisions conferring successive 
interests, if the first interest created is valid the subsequent C 
interest cannot take effect but a court of construction 
will proceed to the farthest extent to avoid repugnancy, 
so that effect could be given as far as possible to eve1y 
testamentary intention contained in 
the will. 
(Ramacfl~ndra Slzenoy V. Mrs. Hilda Brite)" 
D 
37. 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 
E 
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 
F 
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 
G 
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. 
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40. As noted above, intention of testator/testatrix in testamentary 
disposition has to be gathered from the Will itself and the words used 
therein. In the third paragraph, following disposition has. been made in 
the Will:-
" ... On the death of anyone of us, the survivor shall enjoy the 
B 
entire properties, which are our self acquired properties, 
absolutely with all the rights and after his/her life time, and 
carry on the under-mentioned charities from and out of the 
income derived from them without alienating the same" 
41. The above in plain words provides that on the death of any of 
c the spouse, survivor shall enjoy the entire properties absolutely with all 
the rights. What is the connotation of words 'absolutely with all the 
rights?', whether the above provision in the Will can be read as only life 
estate i.e. right of enjoyment and receiving ofrent, income or absolute 
right indicates the exercise ofall the rights including the right ofalienation. 
D 
42. 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 paragraph 58:-
E 
"58. Mr. 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 
F 
expression 'absolutely· should be read to mean that the 
surviving testator. namely. Rangammal would have onlv the 
life interest to enjov the rent and income (ram 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 
G 
charities and she would have no unqualified or unrestricted 
power to enjoy the properties as she pleases to defeat ur tu 
the detriment of the gift over to the charities. " 
(underlined by us) 
43. Shri Ramamoorthy, Senior Advocate, learned counsel for the 
H appellant, have contended that word 'absolutely' as used in the Will
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
545 
AND CITIZENS OF GOBICHETTIPALAYAM [ASHOKBHUSHAN, J.) 
indicates absolute right of the survivor to deal with the property and 
A 
word 'absolute' cannot be read as limited right or life estate for the 
survivor. 
44. It is submitted that the word used in original Will in Tamil 
language more clearly indicates absolute right to the survivor. Reliance 
is placed upon Govind Raja Vs. Mangalam Pillai, AIR 1933 Madras 
B 
80. The Madras High Court while explaining the similar Tamil word 
used in a Will in context whether it confers life estate or absolute estate, 
following was stated:-
" .. . In this second appeal, it is contended on behalf of the 
appellants (plaintiffs 2 to 4, plaintiff 1 having died during 
C 
the pendency of the suit and plaintiffs 3 and 4 having been 
added as his legal representatives) that on a proper 
construction of Ex.A it should be held that either a life estate 
in favour of Madurambal with a remainder over in favour of 
plaintiffs I and 2 or an absolute estate in her favour subject 
to defeasance in the event of her failing to have any issue at D 
the time of her death was really conferred on her. Having 
regard to the terms of the earlier portion of the deed which 
are to the effect, that the done should enjoy the properties 
absolutely or with all rights, it cannot be reasonably contended 
that what was conferred upon her was primarily a life estate 
E 
alone. The tamil word "sarva
suthantharamai " ... " 
45. In one more part of the Will which is appended at the end 
' after description of the properties is relevant, which is to the following 
effect:-
" ... If any property has been left out, then the same, any 
F 
property purchased then they also, and if any property is sold 
by deleting the same, the remaining properties form part of 
this document .. " 
46. The above provision in the Will clearly intends that any property 
purchased shall treated to be added In the document and further any 
G 
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 
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A 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 
B 
c 
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 
D 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. Following 
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was stated in paragraph 66:-
"66 ... we are therefore of the view that the said expression 
'absolute enjoyment' as employed in the Will as a sort of 
comfort or cushion to the survivor to meet any unforeseen or 
unexpected contingencies if any absolute necessity arises but, 
at the same time, it cannot be stated that the bequest in favour 
of charities is a mere wish and an absolute interest was 
granted in favour of the survivor. We therefore hold that the 
meaning of the expression 'absolutely' should be cut down or 
abridged considering the mutual intention between the 
executants in making the Will and there are indications in the 
Will itself to curtail the full implication and import of the 
expression 'absolutely' when it is used with reference to the 
survivor ... 
49. The intention in testamentary disposition has to be primarily 
found out from the actual words used in the Will. The court is not entitled
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
547 
AND CITIZENS OF GOBICHETTIPALAYAM [ASHOKBHUSHAN, J.] 
to ignore clear words or add something of its own or dilute the meaning A 
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 
B 
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 c 
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 D 
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. 
E 
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 
F 
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. 
53. In the above context, exposition oflaw in reference to a mutual 
G 
Will by Australian High Court in a case Birmingham & ors. Vs. Renfrew 
& Ors., 57 Commonwealth Law Report 666, needs to be referred. 
54. In the above cases Dixon J. while delivering a concurring 
opinion elaborated the concept of mutual Will, he has referred to a third 
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A element to be inherent in nature of mutual Will which according to Dixon 
J. had not been earlier expressly considered. Dixon J. stated the third 
element in the following words:-
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" ... There is a third element which appears to me to be inherent 
the nature of such a contract or agreement, although I do not 
think it has been expressly considered. The purpose of an 
arrangement for corresponding wills must often be, as in this 
case, to enable the survivor during his life to deal as absolute 
owner with the property passing under the will of the party 
first dying. That is to say, the object of the transaction is to 
put the survivor in a position to enjoy for his own benefit the 
full ownership so that, for instance, he may convert it and 
expend the proceeds if he chooses. But when he dies he is· to 
bequeath what is left in the manner agreed upon. It is only by 
the special doctrines of equity that such a floating obligation, 
suspended, so to speak, during the lifetime of the survivor 
can descend upon the assets at his death and crystallize into 
a trust. No doubt gifts and settlements, inter vivas, if calculated 
to defeat the intention of the compact, could not be made by 
the survivor and his right of disposition, inter vivos, is, 
therefore, not unqualified. But, substantially, the purpose of 
the arrangement will often be to allow full enjoyment for the 
survivors own benefit and advantage upon condition
that at 
his death the residue shall pass as arranged. .. " 
55. Dixon J. as noted above has held that survivor during lifetime 
can deal as absolute owner of the property but when he dies, he is to 
bequeath what is left in the manner agreed upon. The obligation to utilize 
the property in a manner agreed upon descends upon the asset on the 
death of survivor and the right of disposition is not unqualified but has to 
be in accord with manner of disposition. 
56. As noted above, the High court in paragraph 66 of the judgment 
also had considered that expression absolute enjoyment as employed in 
G the Will was a sort of comfort or cushion to the survivor to meet with 
any unforeseen or unexpected contingencies, if any necessity arises. 
H 
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
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
549 
AND CITIZENS OF GOBICHETTIPALAYAM [ ASHOKBHUSHAN, J.] 
purpose of the Will is not lost even if survivor is given absolute right. The A 
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 B 
High Court that the Will dated27.9.l 968 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 ofright 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 
C 
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 D 
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 
jn the Will after the death of Palaniappa Chettiar. 
E 
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. 
F 
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 
G 
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 regar<l 
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 
H
550 
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
A far as alienations made by defendant no. 4 & 5 as null and void are 
maintained. 
B 
c 
D 
E 
F 
G 
Creation of Trust by Will dated 27.9.1968 
62. The High court has elaborately dealt with the matter ofcreation 
of Trust by Will in paragraphs 79 to 80 of the judgment. 
63. While not.icing 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 witliout 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. 
Following statement in the Will is relevant: 
"During our life time we shall manage the property ourselves, 
do the desired charities either jointly or individually. 
In case we are not ·in a position to carry out the desired. 
cllarities during our life time, a committee consisting of the 
following authorities shall be formed to carry out the 
foll owing charities:. " 
64. A complete reading of the Will indicates that although the 
testator and testatrix intended to utilise their properties to carry out 
charities after their life, the Trust as contemplated by the Will to
come in 
operation in following manner: 
(I} During the life time of testator/testatrix in the event they 
were not in a position to carry out the desired charity the 
committee consisting of the Endowment Commissione,r, 
Revenue Divisional Officer, Gobichettipalayam and 
District Munsif, Gobichettipalayam shall carry out the 
charities. 
(2) After the death of both testator r111d testatrix, the committee 
of three members as noted above shall perform the 
charities. 
65. There is no pleading or material on record to indicate that 
during life time of Palaniappa Chettiar or Rangammal at any point of 
H
DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL 
AND CITIZENS OF GOBICHETTIPALAYAM [ASH OK BHUSHAN, J.] 
551 
time they expressed their inability to carry out the charity or had requested A 
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 
B 
charities and the Trust came into operation. 
· 
Will dated 27.11.1980 
66. The trial court framed specific issue No.13 to the following 
effect: 
' "13. Whether the Will dated 2 7.11.1980 executed in favour of C 
the defendants 4, 5 is genuine and valid ? Whether Chinnammal 
@ RangammaL had executed that document in a sound and 
disposing state of mind ? 
67. Issue No.13 was dealt with in great detail by the trial court 
after considering the entire documentary and orat evidence on records. 
D 
Defendant NosA and 5 have examined the testators as DW.2 ~nd DW.4, 
scribe as DW.3 and a Sub-Registrar for proving the Will as DW.6. 
68. After considering the oral evidence the trial court held that the 
Will is not proved. The trial court noticed several suspicious c.ircurnstances 
, 
and discrepancies and it was held that Ex.D-109 has not been executed 
E 
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 afte~ 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.606of1989. 
Reliefs 
I. We have come to the conclusion that Smt. Rangammal- testatrix 
has the absolute right to deal with the properties mentioned in the Will 
F 
G 
' 
and alienations made by her during her life time are saved byth,e Will H _
SUPREME COURT REPORTS 
[2017] 4 S.C.R. 
· A and the judgment of the High Court holding sales in favour of the appellant 
as null and void is unsustainable and is hereby set aside. Civil Appeal 
Nos.5924 of 2005, 5925 of 2005 and 5926 of 2005 are partly allowed 
and following sale deeds are deleted from the description of the property 
in the plaint. The Trust shall not include following sale deeds: 
B 
(i) Sale deed in favour of Dr. K.S. Palanisami, defendant No.13 
c 
D 
dated 11.5 .1979, Schedule II, Item No.15 and 16. 
(ii) Sale deed in favour of defendant Nos.4 and 5 dated 19.9.1972 
and 30.9.1972, second Schedule, Item Nos. 5 and 6 (Ex.B-28 and Ex.B-
29). 
· (iii) Sale deed dated 24.3.1977, first Schedule, Item No.6, in favour 
ofThirugnanasambandam, defendant No.7 (Ex.B-116) and 
(iv) Sale deed in favour of Dr. M.R. Subbian dated 20.2.1970, 
Schedule II, Item No.2 and 7 (Ex.B-114). 
We, however, make it clear that the judgment of the High Court 
declaring sale deeds executed by defendant Nos.4 and 5 as null and void 
is maintained. All alienations made by defendant Nos.4 and 5 are null 
and void and those properties shall be treated as part of the Trust property. 
II. Civil Appeal No. 6469 of2005 stands dismissed. 
E 
III. The directions issued by the High Court in paragraph 116 are 
maintained subject to directions-I as made above. Judicial Officer having 
jurisdiction over the case who has been directed by the High Court to 
frame the scheme for the Trust shall frame
the scheme expeditiously 
preferably within a period of three months from the date a copy of this 
F judgment is produced before him. It goes without saying that all steps 
for identification, protection and management of Trust property shall be 
undertaken by all concerned. 
69. All the appeals are decided accordingly. 
Devika Gujral 
Appeals disposed of.