Mani Mani & Ors Vs. Mani Joshua
 INSC 88 (21 March 1969)
21/03/1969 GROVER, A.N.
CITATION: 1969 AIR 1311 1969 SCR (1) 71 1969
SCC (1) 824
Indian Succession Act (39 of 1925), s.
By a settlement deed of 1935, the owner of
certain properties settled three items of property on his wife and two sons,
the first appellant and respondent one item for each. Mutations were effected
of the properties so settled in favour of the donees. Thereafter, he had
executed three wills. In his last will and testament, there are two recitals
that he had cancelled the previous settlement deed and wills and that the last
will was to be the only document which should govern the disposition of his
properties. The testator, by that will, also purported to give to the
respondent five items of property. Those five items did not include the item
settled on the respondent in 1935, but included certain properties which had
been settled in 1935 on the wife and the first appellant. The testator further
stated that the entire residue was bequeathed to the first appellant, but did
not state specifically that he was giving away to the first appellant the
property which he had settled on the respondent in 1935. After the death of the
testator the respondent filed a suit claiming the item settled on him in 1935,
on the basis that he had a -right under the will to get the five items
bequeathed to him thereby, in addition to the item settled on him in 1935,
because, by reason of the. settlement in his favour it could not form the
subject matter of the bequest in favour of the first appellant.
On the question whether by accepting the
benefit under the will by taking the five items bequeathed to him thereby, the
respondent exercised his right of election and precluded himself from asserting
any right to the item settled on him in 1935.
HELD : Under s. 180 of the Indian Succession
Act, if a legatee has been given any benefit under a will and his own property
has also been disposed of by that very will, the legatee must elect either to
confirm such disposition or to dissent from it, and in the latter case, he must
relinquish all his claims under the will if he choose to retain his own
property. The presumption being that a testator intends to dispose of only his
own property, general words will not usually be construed so as to include a
particular property over which he had no disposing power, unless, such an
intention appears on the face of the will either by express words or by necessary
implication. [78 B-C] In the present case, the terms of the will indicate, that
the testator thought he could revoke the settlement deed and treat it as
-non-existent, and that he meant to dispose of the entire estate including the
properties which had been the subject matter of the settlement of 1935. The
respon- dent, therefore, was put to election and could not claim the property
settled on him in 1935, if he wished' to take the benefit under the will. [76
C-D, 77 A-C, 79 G] Miller v. Thurgood, 10 L.T.R. 255, Whitley v. Whitley, 54
E.R. 1104; Re. Allen's Estate, Prescott v. Allen & Beaumont,  2 All.
E.R. 264; and Re : Booker, Booker v. Booker, 54 L.T.R. 239, 242, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 683 of 1966.
Appeal by special leave from the judgment and
order dated January 3, 1965 of the Kerala High Court in Appeal Suit No.
S. V. Gupte and A. S. Nambiar, for the
Sarjco Prasad, P. Kesava Pillai, M. R. K.
Pillai and Lily Thomas, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is an, appeal by special leave from a judgment of the Kerala
High Court by which the suit instituted by the respondent for recovery of
properties described in Schedule A of the plaint and for mesne profits etc. was
decreed in reversal of the decree of the trial court, dismissing the suit.
Uthupu Mani who died in the year 1943 had
three sons. The eldest son Uduppu died sometime between 1929 and 1935. The
second son Joshua is the respondent herein, the appellants being the' third son
Mani Mani and Mariamma their mother and the widow of Uthupu. Uthupu left some
daughters also and appellant No. 3 Mani Achamma is one of the daughters. The
controversy in the suit out of which the appeal has arisen was confined to a
residential house in an area of 10 cents in Kottayam town. This property along
with several other properties originally belonged to Uthupu who made certain
settlements followed by wills. The first settlement was made in the year 1102
ME corresponding to 1927 AD when Uduppu was alive and Mani Mani was not born.
On October 9, 1935 by means of another registered document (Exh. A) called
Udampady Uthupu settled properties thus: Those comprised in A Schedule were
given to Mariamma, in B Schedule to Joshua and in C Schedule to Mani. The
Schedules Contained the following properties :
"To Mariamma (A Schedule) Building
constructed as Hall and the Cart-shed on 2 cents.
To Joshua (B Schedule) Storied building and
30 cents garden land.
To Mani Mani (C Schedule) Four rooms facing
West and 36 cents of garden land." It appears and it has been so found
that mutations were effected of the properties so settled in favour of the
donees. Later on Uthupu executed a will which he put in an envelope and deposited
it in the office of the District Registrar, Kottayam in January 1943.
73 He executed a second will in April 1943
and kept it in custody of the District Registrar. He executed a third will
(Exh. 3) on May 31, 1943 which was his last will and testament. In this will he
made a mention of the two settlements and the two previous wills and declared
that the last will would be final and operative. His other declarations and
statements in the will (Exh. 3) will be presently considered as the entire controversy
in the present litigation centers on a correct assessment and appraisal of
their true scope and effect. It may be mentioned that by this will he left five
items of properties to Joshua. These items included the properties in C
Schedule which had been given to Mani by the settlement of 1935 and the
cartshed oil two cents of land contained in Schedule A which had been given to
Mariamma by that settlement. There was no specific mention in the will (Exh.
3) to the B Schedule properties which had
been settled on Joshua in 1935.
In 1955 Joshua filed a suit laying claim to
the B Schedule properties settled on him in the year 1935. His case was founded
principally on the allegation that B Schedule properties which had been settled
on him in 1935 vested in him by virtue of the settlement and he was the owner
thereof and that the five items of properties which were left by the will (Exh.
3) were quite independent of and separate from the aforesaid B Schedule
properties. In other words he asserted that he had a right under the will to
get the five items bequeathed to him therein in addition to the B Schedule
properties which had been settled on him in the year 1935 and which could not
form the subject matter of any bequest by Uthupu by reason of the said settlement.
The position taken up on behalf of Mariamma, Mani etc.-the defendants--was that
the plaintiff had accepted the benefit under the will by taking the five items
of properties bequeathed to him thereby which included the properties
originally allotted under the settlement of 1935 to Mariamma and Mani. He had
thus exercised his right of election to take the properties under the will and
was precluded from asserting any right to properties given to him under the
settlement of 1935.
A number of issues were framed on the
pleadings of the par- ties. The main question for consideration, however, was
whether the settlement of 1935 had been given effect to and whether the
plaintiff's suit merited dismissal on account of the applicability of the
doctrine of election embodied in s.
180 of the Indian Succession Act. The trial
court held that the settlement of 1935 had been given effect to and mutations
had been duly made in the revenue register in accordance with the settlement
deed. It was found that the plaintiff had obtained title to and possession of
the SupCI/69-6 74 suit properties comprised in B Schedule in the settlement of
1935. The suit was dismissed on the ground that the will (Exh. 3) clearly
showed that the testator purported to cancel the arrangement by the deed of
settlement of 1935 and had made bequests under the will to the plaintiff of
some of the properties which had been settled on Mariamma and Mani in the year
1935. This attracted the rule contained in S.
180 of the Succession Act and since the plaintiff
had elected to accept the benefit under the will he was not entitled to claim
any right on the basis of the deed of settlement of 1935.
The High Court acceded to the argument
pressed on behalf of Joshua who was the appellant before it that on a proper
reading of the will it could not be held that the testator professed to dispose
of the suit properties which had been gifted to the plaintiff by means of the
settlement deed of 1935. The High Court was influenced by the fact that there
was no specific mention of these properties in the will and according to it
mere general words of disposition could not be taken to contain -an intention
to deal with the properties belonging to a third party, namely, the plaintiff.
The following part of the judgment may be reproduced :
"Having due regard to these passages in
the various text-books based upon judicial decisions and which have been placed
before me by Mr. T. S. Krishnamoorthy lyer and Mr. M. U.
Issac in my view, the decision rendered by
the teamed Subordinate Judge that section 180 of the Indian Succession Act
applied and that the appellant has elected to take the benefit under the will
and therefore he cannot claim any further benefits on the basis of Ex. A,
cannot certainly be sustained. So far as I could see, there is no specific
disposition of the property already given to the plaintiff under Ex. A, by the
father in Ex. 3. No doubt the father has dealt with an item which was given
under Ex. A to the first defendant and a part of the item given to the 2nd
defendant under Ex. A in Ex. 3. If at all the question of the doctrine of
,election and the applicability of section 180 of the Indian Succession Act
comes into play, in my view, the election will really have to be made, not, by
the plaintiff, but by really defendants one and two." As the applicability
of the doctrine of the rule of election will depend on a correct and true
reading of the will (Exh.
3) we proceed to notice the main recitals and
other prominent features to be found in it. The testator in the very beginning
referred to the two settlements made by him in the years 1927 and 1935 and 75
the two wills executed by him in the year 1943 which were deposited with the
District Registrar, Kottayam. He said that by the first will which he had executed
he had invalidated the two deeds of settlement. He then made the second will as
he thought that some changes were necessary.
The third will, (Exh. 3), was made because he
felt pity for Joshua whom he had apparently left no or very little property by
-his previous wills. This is 'what the testator said "But, since there
originated in me an idea, on seeing the desperate look and repentant attitude
of my son Joshua, that it is highly necessary to nullify certain historic
statements made in the previous will and also to alter the conditions, such as
share of my assets will not be given to Joshua and to his children in case he
begets any, laid down by me owing to the ill-will I had towards Joshua, the
eldest among the male children I have at present and towards the members of his
wife's house because of certain reasons which I don't now purport to describe
herein, this will is executed again afresh; and this alone will come into force
after my life-time." He further said that he had seven children alive at
the time when the will was made, namely two sons and five daughters out of whom
two were married. He directed that after his death his wife Mariamma would take
+,he entire income from his properties for meeting family expenses and payment
of revenue dues etc. Then he made dispositions about payments in cash on the
occasion of the marriages of his other daughters, with the exception of
Achamma, who was described to be weak in health, and in his opinion, should not
contract matrimony. An amount of' Rs. 3,000/- was to be deposited in her name
which she was entitled to withdraw if she was married. During the period she
remained unmarried she was entitled to take interest on that deposit for
personal expenses. He gave other directions about arrangements for her residence
etc. in case she remained un- married. Then he proceeded to make the provision
about bequests in these words :
"Though I had provided in my previous
will that my eldest son Joshua shall have only some right in the nature of a
life interest over my assets in respect of some petty items of
profits;............ Therefore I have forgiven him and I hereby allow him to
enjoy for ever the immovable properties described hereunder;
and my younger son Mani Mani shall alone be
the sole heir of the remaining entire assets belonging to me. But, my two sons
shall become entitled to the properties allotted 76 to them only after my two
daughters are married and the deposit is made in Achamma's name and all the
litigations in which I am a party are ended; and till that time my wife
Mariamma shall take and conserve all the profits as described above in the
status of an undivided family." The only other declaration or statement in
the will which deserves notice is the following "This will is executed by
resolving as these and totally changing all the deeds registered by me prior to
this and the Wills kept in custody; and this Will alone shall, unless 1 act
otherwise, be and ought to be in force in future. " Now it is quite clear
that the testator was somehow under the impression that he was competent to
cancel and revoke not only the previous wills but also the two settlements
including the one made in the year 1935. It appears that although by the
registered deed of 1935 he had gifted certain properties to his wife and two
sons he thought that he could undo what he had done by making a will by which
he left virtually no property to Joshua since he was annoyed with him. That is
apparently the reason why he clearly stated in the will (Exh. 3) in the very
beginning that he had executed a will "on 9th Makarom this year in
accordance with law, invalidating the above two deeds." He relented in
favour of Joshua and that is the reason why he made the will (Exh. 3) but his
state of mind continued to be the same, namely, he considered that he was fully
competent and entitled to cancel all previous settlements and wills and start,
as if it were, on a clean slate. The detailed bequests which he made (Exh. 3)
indicate that he meant to dispose of the entire estate including the properties
which had been the subject matter of the settlement made in the year 1935.
There are two strong indications in the will (Exh. 3) of his having dealt with
the entire property which he thought he could dispose of or in respect of which
he could make bequests and leave legacies on the footing that no title had
passed to any of the donees under the settlement of 1935. The first is the
recital both in the beginning and towards the concluding part of Exh. 3 that he
had cancelled the previous settle- ments and wills and that the only document
which would govern the disposition of properties would be Exh. 3. Even if it be
assumed, as has been suggested, by learned counsel for Joshua -respondent-that
the declaration about invalidating the two deeds of settlement was confined to
the first will executed in January 1943, the statement made towards the
conclusion of the 77 will (Exh. 3) leaves no doubt that the testator sought to
revoke not only the previous wills but also the registered deeds which clearly
meant the deeds of settlement executed in 1927 and 1935 respectively. The
second significant fact is that the testator purported to give to Joshua five
items of property which included certain properties which had been given by the
settlement of 1935 to Mariamma and Mani. If the testator did not want to make
any disposition of those properties which formed the subject matter of gift in
1935 there was no reason why he should have given to Joshua properties which
had been gifted to Mariamma and Mani. All this could have happened only if the
testator was treating the settlement of 1935 as non-existent having been
revoked by him. We are satisfied that a correct reading of the will (Exh. 3)
yields the only result that the testator Uthupu treated the entire properties
which had formed the subject matter of gift or otherwise as his and which could
be disposed of by him as he liked. The High Court was in error in disagreeing
with the trial court on this matter.
The argument of learned counsel for the
respondent is that the testator predominently intended to make better provision
for Joshua with whom he had been annoyed for various reasons and whom he had
left comparatively less or no_ property by the wills executed prior to Exh. 3.
It is suggested that the testator could not have intended to have taken away
what had already been gifted to Joshua in the year 1935 of which mutation had
taken place and possession had passed. It is further pointed out that the
testator did not specifically say that the properties which had been gifted to
Joshua in 1935 were now being left by the will (Exh. 3) to Mani. A great deal
of reliance has been placed on Ike statement in the text books on which the
High Court relied and certain decisions for the view that no case for election
can arise where the testator does not dispose of the properties in question
specifically and has merely used general words of devise. In such
circumstances, it has been stated, the testator should be taken to have
disposed of only that property which was his own and which he was entitled to
deal with and bequeath in law. It is urged that, in the present case, the
testator had already made a valid and legal settlement in 1935 of the suit
property. He could not have thus dealt with or bequeathed that property and in
the absence of express and specific mention in Exh. 3 that he was doing so the
rule of election would not be attracted.
The circumstances in which election takes
place are set out in s. 180 of the Indian Succession Act. According to its
provisions, "where a -person by his will professes to dispose of some- 78
thing which he has no right to dispose of, the person to whom the thing belongs
shall elect either to confirm such disposition or to dissent from it, and, in
the latter case, he shall give up any benefits which may have been provided for
him by the will." The English law, however, applies the principle of
compensation also to election. It means the electing legatee has to compensate
the disappointed legatee out of the property given to him. As pointed out in the
Indian Succession Act by N. C. Sen Gupta, p. 295, the rule which has been
embodied in s. 180 does not recognise the principle of compensation. Under its
provisions if the legatee has been given any benefit under the will and his own
property has also been disposed of by that very will he must relinquish all his
claims under the will if he chooses to retain his property. It is not disputed,
in the present case, that if the testator has, by Exh. 3, disposed of the
property which had been gifted to Joshua the rule embodied in s. 180 would
become applicable and Joshua cannot take the property which had been gifted to
him if he has chosen to retain the property bequeathed to him by the will. The
question is whether the testator having omitted to state in Exh. 3 that he was
giving away the properties which had been gifted to Joshua in the year 1935 to
Mani to whom only a residuary bequest of the entire remaining assets had been
made the principle of election will become inapplicable.
Our attention has been invited on behalf of
Joshua to the following observation of the Master of Rolls in Miller v.
Thurgood (1) :
"If a testator, having an undivided
interest in any particular property, disposes of it specifically, and gives to
the co-owner of the property a benefit under his will, the question of election
arises. But if he disposes of it, not specifically, but only under general
words, no question of election arises." But as pointed out in para. 1097,
p. 592, Halsbury's Laws of England, Vol. 14, in order to raise a case of
election under a will it must be clearly shown that the testator intended to
dispose of the particular property over which he had no disposing power. This
intention must appear on the face of the will either by express words or by
necessary conclusion from the circumstances disclosed by the will. The
presumption, however, is that a testator intends to dispose of his own property
and general words will not usually be construed so as to include other
property. In Whitley v. Whitley(1) the wife of the testator was entitled to a
share of the produce of the R. estate, which had been directed to be sold. By
(1) 10 L. T. R. 255.
(2) 54 E. R. 1104.
79 his will the testator gave all "his
share, estate and interest" in the R. estate to his daughter and benefit
out of his own estate to his widow. It was held that the will raised a case for
election as against the widow. The Master of the Rolls (Sir John Pomilly) said
that the testator intended to dispose of the property by will which was not his
but belonged to his wife and she having taken and enjoyed the benefit provided
for her under his will must be considered as having elected. The property,
must, therefore go as if it had been the testator's property. This case
illustrates how the rule of election has been applied where, even though,
general words had been used but by necessary conclusion from the circumstances
disclosed by the will it was interred that the testator intended to dispose of
the property which belonged to his wife and not to him.
According to the footnote in Halsbury's Laws
of England, Vol. 14 (supra), in the case of a will one may even gather an
intention by the testator to include property belonging to another in a gift of
residue for it is necessary to construe a will as a whole. Reference has been
made to Re Allen's Estate, Prescott v. Allen and Beaumont(1), where a gift of
the "residue of my property" was construed as the residue of the
testatoes ostensible property. A fairly strict approach in such cases has been
indicated by Chitty J., in Re Booker, Booker v. Booker(2) in these words :
.lm15 " A great safeguard in applying
that doctrine is this-that you are not merely to strain words to make them
include -that which does not belong to the testator; but you must be satisfied
beyond all reasonable doubt that it was his intention to include that which was
not his own, and that you cannot impute to him after having read his will any
other intention." It is thus necessary to look at the will and read it
carefully which has been done by us and we have no, manner of doubt that
Uthupu, the testator, intended to include properties gifted to Joshua by the
settlement of 1935 in the bequest which he made to Mani of the entire residue.
Joshua was thus put to election and could not claim those properties if he
wished to take the benefit under the will.
In the result -the appeal is allowed and the
judgment of the High Court is set aside and that of the trial court restored
with costs in this Court.
V.P.S. Appeal allowed.
(1) 2 AII.E .264.
(2) 54 L. T, R. 239, 242.