Kochu Govindan Kaimal & Ors s.
Thayankoot Thekkot Lakshmi Amma & Ors  INSC 88 (1 October 1958)
AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B.
CITATION: 1959 AIR 71 1959 SCR Supl. (1) 1
Willjointly executed by three
testators-Construction-joint tenants or tenants in common-Claim of entire
properties by survivor -Maintainability.
A will executed jointly :by three persons
contained, inter alia, the following recitals:-" We have hereby settled
and agreed that all the moveable and immoveable properties acquired jointly and
separately by us till now, and those which we may be so acquiring in future and
those which have devolved on us and those which we may yet be obtaining, shall
be held by us in our possession and under our control and dealt with by us as
we please till our death." There were bequests in favour of certain
persons and the will provided that in the event of the executants effecting any
transfers or alienations of the said properties, either, jointly or severally
till their death, the aforesaid persons shall have the right only in respect of
the remaining items of the properties. Two of the testators having died the
third claimed that he had become entitled by surviorship to all the properties
disposed of by the document on the footing that it was in effect a transfer of
all their individual properties to themselves jointly as joint tenants.
Held, that the document was a testamentary
disposition by the three testators of their properties operating on the death
of each testator on his properties, and was, in effect three wills combined in
one. The properties were held by the testators at, tenants-in-common and the
legatees mentioned in the will would become entitled to the properties of the
testator who dies.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 5 and 6 of 1955.
Appeals from the judgment and decree dated
September 15, 1952, of the Madras High Court in Second Appeals Nos. 2256 of
1947and 2545 of 1948, 2 arising. out of the judgment and decree dated September
19, 1946, of the Court of Subordinate Judge of Kozhikode in Appeal Suit Nos.
336 and 180 of 1946, against the judgment and decree dated October 9, 1945, and
June 29, 1946, respectively of the Court of Districts Munsif, Chowghat, in O.
S. Nos. 131 and 158 of 1945.
B. K. B. Naidu, for the appellants.
V. Karunakara Menon and M. R. Krishna Pillai,
for the respondents.
1958. October 1. The Judgment of the Court
was delivered by VENKATARAMA AIYAR J.-The point for determination in these two
appeals is whether one Kesavan Kaimal who was one of three executants of a will
dated February 10, 1906, became entitled under that will to the properties,
which are the subject-matter of these appeals.
The will is a short one, and is as follows:
" Will executed on 28th Makaram 1081 M.
E., corresponding to 10th February, 1906, jointly by Kunhan Kaimal, son of
Karayamvattath Katbayakkal Kunhu Kutti Amma, Kesavan Kaimal, son of Theyi Amma
and Theyi Amma, daughter of Nani Amma of Etathiruthi amsom and Etamuttan desom
in Ponnani Taluk. We have hereby settled and agreed that all the movable and
immovable properties acquired jointly and separately by us till now, and those
which we may be so acquiring in future and those which have devolved on us and
those which we may yet be obtaining shall be held by us in our possession and
under our control and dealt with by us as we please till our death and that
subsequent to our death, Kalliani Amma's children, Kali and Kunhu Kutty, Thona
Amma's children, Parukutty, Kunhunni, Kochu Govindan and Ramar, and the
children of the deceased Narayani Amma, namely, Kunhunniri, Kuttiparu and
Lakshmikutty and their children and the children who may be born to them as
also the children who may be born of them, shall as our heirs and legal
representatives, hold the said properties in their 3 possession and enjoy them
hereditarily in equal shares amongst themselves.
2. Except after our death, the aforesaid
persons shall not lay claim to any of the properties belonging to us.
3. It is settled that in the event of our
effecting any transfers or alienations of the said properties. either jointly
or severally till our death, the aforesaid' persons shall have the right and
freedom only in respect of the remaining items of properties to the exclusion
of those items of properties included in the above transactions.
4. It is hereby further settled and agreed
that subsequent to our death, save our legal representatives aforesaid and such
of those as may be born hereafter, no other persons shall have the right to
claim to or right of entry upon the entire properties moveable and immoveable
found belonging to us.
And we have signed herein in the presence of
the undersigned witnesses(signed) Kunhan Kaimal.
( " " ) Kesavan Kaimal.
(" " ) Theyi Amma." of the
three testators, Theyi Amma died first-the exact date of her death does not
appear and is not very material-and Kunhan Kaimal died thereafter sometime in
1930. It is the case of Kesavan Kaimal that in the events which had happened,
he had become entitled by survivorship to all the properties disposed of by the
will, including those of Kunhan Kaimal, and on this footing he conveyed on
October 14,1938, seven items of properties, of which three belonged to Kunhan
Kaimal, to one Sankarankutti Kaimal and on October 16, 1944, another three
items of properties which belonged to Kunhan Kaimal, to Kalyani and Vijayan.
These transfers led to the two litigations; which have culminated in the
The legatees under the will dated February
10, 1906, instituted O. S. No. 131 of 1945 in the Court of the District Munsif,
Chowghat, then in the Province of Madras, for recovery of possession of three
items of properties which had belonged to Kunhan Kaimal 4 after redeeming a mortgage
for Rs. 100 created over those properties on February 3, 1901. The plaintiffs
claimed that on the death of Kunhan Kaimal in 1930 they had become entitled to
those properties as legatees under the will.
Defendants 1 to 3 represented the mortgagees.
Defendant 6 was Kesavan Kaimal, and defendants 4 and 5 were brought on record
as persons claiming to be entitled to the suit properties under a deed of
transfer by defendant 6, dated October 16, 1944. Defendants 4 to 6 contested
the suit, and pleaded that on a proper construction of the will, the properties
of Kunhan Kaimal survived to Kesavan Kaimal on the death of the former in 1930,
and that the plaintiffs got no title to them. This contention was overruled by
the District Munsif, and the suit was decreed. There were two appeals against
this decree, A. S. No. 179 of 1946 and A. S.
No. 180 of 1946 in the Court of the
Subordinate Judge, Calicut, the former by defendants 4 and 5 and the latter, by
defendant 6. The Subordinate Judge agreed with the construction put on the will
by the District Munsif, and dismissed the appeals. Against that decree,
defendant 6 preferred S. A. No. 2256 of 1947 in the High Court of Madras.
Basing himself on the deed of transfer dated
October 14, 1938, Sankarankutti Kaimal instituted O. S. No. 158 of 1945 in the
Court of the District Munsif, Chowghat, for recovery of possession of three
items of properties, of which one belonged to Kunhan Kaimal absolutely and the
other two' to him and others as co-owners. In the plaint, he alleged that there
was an oral lease of the properties to the first defendant and to one Kali
Amma, whose legal representatives were defendants 2 and 3, that the defendants
were in arrears in the payment of rent, and were disputing his title to the
properties, and that he was therefore entitled to eject them. Defendant 4 is
Kesavan Kaimal, the vendor of the plaintiff. The contesting defendants who were
the same as the plaintiffs in O.S. No. 131 of 1945 pleaded that under the will
they became entitled to all the properties of Kunhan Faimal, that the oral
lease was untrue, and that the 5 suit was barred by limitation. The District
Munsif found all the contentions in favour of defendants 1 to 3 and dismissed
the suit., Against this decree, there was an appeal, A. S. No. 336 of 1946, in
the Court of the Subordinate Judge of Ottapalam, and that was dismissed, the
Subordinate Judge agreeing with the District Munsif on all the issues. Against
his decree, the plaintiff preferred S. A. No. 2545 of 1948 in the High Court of
Madras. Both the second appeals came up for hearing before Raghava Rao J. who
held that on its true construction the will operated to vest, in the three
testators all the properties covered by it in joint ownership, that, in
consequence, on the death successively of Theyi Amma and Kunhan Kaimal, their
interest survived to Kesavan Kaimal, and that the transfers made by him on
October 14, 1938, and October 16, 1944, were valid.
In the result, both the second appeals were
allowed, the suit for redemption, O. S. No 131 of 1945, was dismissed, and the
suit in ejectment, O. S. No. 158 of 1945, was decreed. Against this judgment,
the present appeals have been brought on a certificate granted by this court
under Art. 136.
The sole point for determination in these
appeals is whether under the will all the three testators became joint owners
of all the properties on which it operated. After hearing the question fully
argued, we have come to the conclusion that that is not the effect of the will,
and that the judgment of the High Court contra cannot be supported.
There were three executants of the will. Each
of them possessed properties, which were his or her selfacquisitions. Theyalso
owned some properties which they had jointly acquired, but their title to such
properties was as tenants-in-common and not as joint tenants. Each of them
would have been entitled to execute a will of his or her properties, and if
that had been done, the legatees named therein would undoubtedly have been
entitled to those properties. In the present case, the legatees who were
intended to take were the same persons, and it was for that reason that the
three testators instead of each executing a separate will jointly executed it.
It ist 6 nevertheless, a will by which each testator bequeathed properties
belonging to him or to her, and therefore on the death of each testator, the
legatees mentioned in the will would be entitled to the properties of the
testator, who dies.
The contention of the respondents which has
found favour with the High Court is that the will must be construed as a
transfer by the several testators of all their individual properties to
themselves jointly as joint tenants. That would really be a transfer inter
Vivos and not a will. The word "will" is widely known and used, and
it has a wellunderstood significance as meaning a disposition which is to take
effect on the death of a person. The executants of the will could not have
therefore intended that it should operate inter ViVOs. Moreover, if the
document was intended to take effect as a present disposition, it should have
to be stamped under the provisions of the Stamp Act, but the will is an
Coming to the recitals in the will, there are
no words by which the executants thereof divest themselves of their individual
ownership and vest it in themselves jointly. It is said that that could be
implied from the words " all the movable and immovable properties acquired
jointly and separately by us till now, and those which we may be so acquiring
in future and those which have devolved on us and those which we may yet be
obtaining shall be held by us in our possession and under our control ".
We are unable to read any such implication in those words. It is difficult to
imagine-how properties which were to be acquired in future could form the
subject-matter of a disposition in praesenti. On the other band, the true
purpose of this clause would seem to be to emphasise that the execution of the
will does not affect the rights of the testators over their properties, and
that is an indication the it is to operate as a will. The matter appears to us
to be concluded beyond all doubt by the terms of clause 3, which provides that
the testators could alienate the properties jointly or severally. If the
properties were intended to be impressed with the character of joint property,
an alienation by any 7 one of them singly would be incompetent. In coming to
the conclusion to which he did, the learned Judge in the Court below was very
largely influenced by the fact that the will dealt with, not only the separate
properties of the testators but also of their joint properties, and that there
was one disposition as regards all of them. But this reasoning is based on a
misconception of the recitals in the will. The will does not refer to any joint
properties of the testators but to properties jointly acquired by themwhich is
very different. They would hold these properties as tenants-in-common, and
their share therein would devolve as their separate properties.
It was further argued for the respondents
that it could not have been the intention of Theyi Amma, one of the testators,
to benefit the legatees under the will in preference to her own son, Kesavan
Kaimal, and that, therefore, it must be held that she intended that her son who
was the youngest of the testators should take all the properties. But if
Kesavan Kaimal could himself agree to bequeath his properties to those
legatees, we see nothing unnatural in his mother also agreeing to bequeath her
properties to themthey being the heirs of the testators under the Marumakkattayam
Law. Learned counsel for the respondents sought to rely on the subsequent
conduct of the parties as showing that they understood the will as conferring a
joint estate on the testators. It was said that it was in that belief that
Kesavan Kaimal was dealing with the properties of the other testators as his
own, after their death. It was also said that the conduct of the other members
of the tarwad, including the plaintiffs, showed that they shared that belief.
And this was sought to be made out by reference to the proceedings in E. A. No.
320 of 1938 in S. C. No. 480 of 1933. The facts were that one Kunhunni Kaimal
obtained a decree against Kesavan Kaimal in S. C. No. 480 of 1933, and in execution
of that decree, he brought some of the tarwad properties to sale, purchased
them himself and got into possession. The members of the tarwad then filed an
application, E. A. No. 320 of 1938, under 0. 21, r. 100, for redelivery of the
8 properties to them on the ground that the decree and the sale proceedings
were not binding on them, and that was dismissed. In the order dismissing the
application, the District Munsif observed that under the will dated February
10, 1906, Kesavan Kaimal had the power to transfer the properties. This order
was relied on in these proceedings as operating as res judicata in favour of
but that contention was negatived by the
Courts below, and has not been repeated before us. But these proceedings are
now sought to be relied on as showing that the members of the tarwad did not
dispute the title of Kesavan Kaimal to the properties which were dealt with by
As against this, the appellant referred us to
a partition deed dated May 16, 1915, and a mortgage deed dated March 4, 1926,
to both of which Kesavan Kaimal was a party, in which be and other members of
the family had understood the will in question as meaning that the testators
held the properties covered by the will in separate' and exclusive ownership.
Whatever value one might attach to the above considerations if there was any
doubt or uncertainty as to the meaning of the will, when once it is held that
the language thereof is clear and unambiguous, evidence of the subsequent
conduct of the parties cannot be admitted for the purpose of limiting or
controlling its meaning. In our view, the terms of the will are clear, and the
subsequent conduct of the parties sought to be relied on must be disregarded as
wholly inadmissible. We are accordingly of opinion that the will dated February
10, 1906, is what it purports to be a will, and nothing else. It does not
confer any rights inter se on the testators; it only vests the title to the
properties disposed of by it in the legatees on the death of the testators. In
this view, the will must be held to be a testamentary disposition by the three
testators of their properties operating on the death of each testator on his
properties, and is, in effect, three wills combined in one.
A joint will, though unusual, is not unknown
to law. In Halsbury's Laws of England, Hailsham's Edition, Vol. 34, p.
17, para. 12, the law is thus stated:
9 " A joint will is a will made by two
or more testators contained in a single document, duly executed by each
testator, disposing either of their separate properties, or of their joint
property. It is not, however, recognised in English law as a single will. It
operates on the death of each testator as his will disposing of his own
separate property, and is in effect two or more wills ". There is a
similar statement of the law in Jarman on Wills, 8th Ed., p.
41. The following observations of Farewell J.
in Duddell in re. Roundway V. Roundway (1) are apposite:
".... in my judgment it is plain on the
authorities that there may be a joint will in the sense that if two people make
a bargain to make a joint will, effect may be given to that document. On the
death of the first of those two persons the will is admitted to probate as a
disposition of the property that be possesses. On the death of the second
person, assuming that no fresh will has been made, the will is admitted to
probate as the disposition of the second person's property..........
It was also argued for the respondents that
the will might be construed as a mutual will, but that, in our opinion, is an
impossible contention to urge on the recitals of the document. A will is mutual
when two testators confer upon each other reciprocal benefits, as by either of
them constituting the other his legatee; that is to say, when the executants
fill the roles of both testator and legatee towards each other. But where the
legatees are distinct from the testators, there can be no question of a mutual
will. It cannot be argued that there is, in the present case, a bequest by the
testators to themselves. There is nothing in the will to support such a
contention, which would be inconsistent with the position taken by the respondents
that there was a settlement of the properties inter vivos converting separate
properties into joint properties.
In this view, on the death of Kunhan Kaimal
his properties vested in the legatees under the will dated February 10, 1906,
and therefore neither Kesavan Kaimal nor his transferees under the deeds could
lay any claim to them.
(1)  1 Ch. 585, 592.
2 10 In the result, the appeals are allowed,
the decrees passed by the High Court are set aside, and those of the Courts
below are restored, with costs throughout.