Whether court can ignore clear words or add something of its own or dilute meaning of clear word used in Will?

High Court in its judgment has cut down/abridged the
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 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   to   ignore   clear   words   or   add
something   of   its   own   or   dilute   the   meaning   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   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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5924 OF 2005
DR. K.S. PALANISAMI(DEAD)
THROUGH LRS.
V
HINDU COMMUNITY IN GENERAL AND
CITIZENS OF GOBICHETTIPALAYAM  
AND OTHERS     
Dated:March 09,2017.
Citation: AIR 2017 SC 1473


These   appeals   have   been   filed   against   the   common
judgment dated 7th July, 2005 of Madras High Court in Appeal
Suit(AS) No.851 of 1989 and Appeal Suit (AS)No.606 of 1989.
These   appeals   arise   out   of   Original   Suit   No.76     of   1981
instituted   by   respondent   No.1   to   these   appeals.   The
parties   hereinafter   shall   be   referred   to   as   described   in
the Original Suit No.76 of 1981.
2. Civil Appeal No.5924 of 2005 has been filed by Dr. K.S.
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.7 and 10 in the Original Suit. Civil Appeal
No.   6469   of   2005   has   been   filed   by   G.K.   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 @
Rangammal   possessed   considerable   properties   in
Gobichettipalayam   Taluk   including   29   houses   and   96.950
acres   of   Agriculture   land.   Rangammal   possessed   certain
agricultural   land   in   Sathy   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 issue and there is no hope that they will live
long   and   their   relatives   are   not   fit   to   enjoy   the
properties.  The  Will   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.1   enumerated   the   details   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   10   properties   by
separate   sale   deeds   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. After the 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.1   claiming   to   be   representative   of
Hindu   Community   in   General   and   Citizens   of
Gobichettipalayam   filed   Original   Suit   No.76   of   1981
impleading   Commissioner   of   Hindu   Religious   and   Charitable
Endowment,   Madras   as   defendant   No.1,   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 impleaded who claimed
a   Will   dated   27.11.1980   from   Rangammal   of   the   entire
properties apart from sale deed from Rangammal. Plaintiffs’
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.1 to 3 who were authorised to deal with the
Trust   property   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 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   administered   by   defendant   Nos.1   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.1 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 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 Nos.4 and 5 is
not proved and it has not been executed in good, sound and
disposing   state   of   mind.   Ex.D­109,   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
dismissed.
(F) Against the judgment of the trial court dated 2nd
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   G.K.   Perumal   and   Ramayummal,   defendant   Nos.4   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 7th April, 2005. The High Court dismissed the
A.S.No.606   of   1989   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 the trial court in so far as it
was  against  the  plaintiffs   was   set   aside.   The   High   Court
held the Will dated 27.9.1968 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.
(G) The High Court disposed of both the Appeal Suits
in the following 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 submits 
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   (Ex.A­5)   havePage 10
10
expressed their desire that
the   District   Munsif,
Gobichettipalayam should be
one of trustees. We are of
the   view,   it   will   not   be
proper   to   induct   the
District   Munsif   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
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.A­5   while   framing   the
Scheme, as they wished that
the relatives of either of
them   should   be   excluded
from   the   enjoyment   and
management   of   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   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   functioning   under
the guidance of this Court.
(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 of 2005 has been filed against the
judgment of the High Court in A.S.No.606 of 1989 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 of 2005 and 6469 of 2005, we
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 have
heard Shri S. Balakrishnan, learned senior counsel and Shri
Vikas Mehta, learned counsel.
6. The submissions made by the learned 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 108 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 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 any trust. It is contended that two
essential conditions for mutual Will, i.e., (i) A surviving
testator   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 right 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   “carva­cutantiram”   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 been considered by the High Court and at least
purchasers   who   have   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.
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
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.
10. Learned counsel for the plaintiffs­respondents refuting
the   submissions   of   learned   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 15th July, 1931 where he disposed of substantial
part   of   his   properties   for   charity.   Although,   his   above
Will was superseded on 15th 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 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
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   108   of
Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959   as  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   of  Tamil   Nadu   Act.  The  suit
under   Section   92   was   fully   maintainable   with   regard   to
charitable endowment made by the Will dated 27.9.1968.
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.
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 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 surviverPage 18
18
shall not possess 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
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 spouse or
after the end of the life of the both or from any
other eventuality ?
(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 ?
(7) The   relief   to   which,   if   any,   the   appellants   are
entitled in these 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   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.” 
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
submission   of   learned   counsel   for   the   parties,   the   High
Court   had   framed   only   four   points   of   consideration   which
did not include 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 forPage 20
20
the   appellant   submitted   that   under   1959   Act,   Section   108
provides as follows:
"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   this
Act. ” 
15. Learned counsel further relies on Section 5, according
to which, the provisions under Section 92 of the CPC 908
shall  cease  to   apply   to   Hindu   Religious   Institutions.
Refuting   the   above   submission,   learned   counsel   for
plaintiff­respondent   contends   that   the   bar   under   Section
108   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   108   indicates   bar   with   regard   to   suit   or   other
legal   proceeding   is   in   respect   of  the   administration   orPage 21
21
management of a religious institution. Section 5 on which
reliance has been placed is, as follows: 
“The following enactments shall cease to
apply to Hindu religious institutions and
endowments, namely:­
(a) The   Tamil   Nadu   Endowments   and
Escheats   Regulation,   1817   (Tamil   Nadu
Regulation VII 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 Act XIV of 1920); and
(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 sub­section
(1) 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   bePage 22
22
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 108 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 108
of 1959 Act.
NATURE AND CONTENT OF WILL DATED 27.9.1968
19. The points No. 2, 3, 4 and 5 being inter­related are
taken   together.   Before   we   proceed   to   consider   thePage 23
23
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
Palaniappa Chettiar and his wife Chinnammal alias Rangammal
jointly. The original will is in Tamil Language; an English
translation of which has been brought on record as annexure
P. 1 in C. A. No. 6469 of 2005 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.   The   entire
will(except the description of the properties) is extracted
as follows: 
“Ex. A5 dated 27­9­1968
The Registration of the Will executed by
Palaniappa Chettiar and Rangammal:
Doct. No. 76/1968:
Sri Ramajayam
“This Deed of Will executed on thisPage 24
24
27th day of September, 1968, corresponding
to   Tamil   11th  day   of   Purattasi   Keelaga
year   by   N.   Palaniappa   Chettiar   son   of
Sruvalur  Angampalayam  Narayana   Chettiar,
residing   at   Veerapandi   Village   Cusba,
Gobichettipalayam  taluk­1  and  Chinnammal
alias   Rangammal   wife   of   Palaniappa
Chettaiar   and   daughter   of   Karuppanna
Chettiar­2 jointly and with full consent
WITTNESSETH:
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 that we will live long,
that our relatives are not fit to enjoy
the   properties   and   lay   a   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
carry   on   the   under­mentioned   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 WillPage 25
25
during   our   life   time   either   jointly   or
individually.
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   bePage 26
26
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.
The   above   3   persons   shall   have   no
right to sell our properties.   They can
spend   only   the   income   from   the
properties.
The   earlier   Will   executed   in   Doct.
No.19/56   shall   stand   cancelled
automatically. 
In   case   we   have   not   collected   thePage 27
27
amounts   due   to   us   or   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
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 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   thePage 28
28
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 19th Edition (Sweet & Maxwell) has defined joint Will
and   mutual   Will   in   para   1­011   and   1­012   in   following
manner: 
"1­011.   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   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   merePage 29
29
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. ”
1­012. 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   of   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   bePage 30
30
affected   by   the   trust   imposed   so   as   to
give effect to the agreement.”
22. Halsbury's Laws of England 5th  Edition Vol. 102 under
the   heading   'Testamentary   Disposition',   in   para   9   &   10
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   death   of   the
survivor, if no fresh will has been made,
it   is   admitted   to   probate   as   the
disposition   of   the   property   of   the
survivor.  Joint wills are now rarely, if
ever, made. 
10. Mutual wills. Wills   are   mutual   when
the   testators   confer   on   each   other
reciprocal   benefits,   which   may   be
absolute   benefits   in   each   other's
property, or life interests with the same
ultimate   disposition   of   each   estate   onPage 31
31
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   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   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 T1 and T2 that in return for T1
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 T1. It
seems that the precise form and terms of
the   underlying   contract   do   not   have   as
great a significance as the finding thatPage 32
32
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   are   to   be
mutually   binding   (whether   or   not
expressed in 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.”
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 his wife's right,
and makes it separate, whether the second
will by the wife is to be considered as
void.
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 arePage 33
33
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.
[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   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   I   am   of
opinion,   the   last   will   of   the   wife,   so
far as it breaks in upon the mutual will,
is void.Page 34
34
And   declare,   that   Mrs.   Camilla   Rancer
having proved the mutual will, after her
husband's death; and having possessed all
his   personal   estate,   and   enjoyed   the
interest thereof during her life, hath by
those acts bound her assets to make good
all her bequests in the said mutual will;
and therefore 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 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.
25. Chief   Justice  Sir   Arnold   White  after   referring   to
'Theobald on Wills' stated as follows: Page 35
35
“...........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
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 will
is irrevocable.   The Privy Council 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 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   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   and   the   arrangement   have
become   irrevocable;   but   that   case   isPage 36
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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 co­testator. 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 71(also reported in 1959(1) Suppl. SCR 1).   In the
above   case,   three   persons   executed   a   Will   on   10.02.1906Page 37
37
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 Halsbury's Laws of
England,   Hailsham's   Edition,   Vol.   34,
page   17,   para.   12,   the   law   is   thus
stated:
“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   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”.
There is a similar statement of the law
in Jarman on Wills, 8th Edition, page 41.
The   following   observations   of   Farewell,
J.   in   Duddell   in   re;   Roundway   v.
Roundway,   1932­1   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   twoPage 38
38
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 he 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.........”
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   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.”Page 39
39
27. A Division Bench of the Madras High Court had occasion
to   elaborately   consider   the   concept   of   joint   Will   and
mutual Will in 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   1949,   Perumal,   the   surviving
brother   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 set­aside and suit was decreed in
appeal. High Court 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:
"32....We confess that the matter is notPage 40
40
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   Will   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   cogent   evidence   of   the   intention
that there is no 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,Page 41
41
had   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   duty   was
payable on entire property, which devolved on husband.  The
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 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 the Will
was joint & mutual and husband had no right of alienation.
High   Court   held,   their   being   no   agreement   that   survivorPage 42
42
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   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 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   not   revoke   the
Will   after   receiving   the   benefit   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 land bungalow
and blocks with their common bathroom and
two   privies....and   shall   be   jointly
entitled to the rents and income of thePage 43
43
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 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. 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,Page 44
44
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 her 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's death, 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
survivor[see Theobald (supra)]. But there
must be an 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 mayPage 45
45
be   proved   outside   the   Will   but   that   is
not established by the mere fact 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 non sequitur.
(7) The   payment   of   wealth   tax   by
Kamlashankar   Gopalshankaron   the   whole
estate after the death of Mahendraba isPage 46
46
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 rules of construction of
a   Will.   Privy   Council   in   an   old   decision,  Sreemutty
Soorjeemoney Dossee Vs. Denubundoo Mullick (1854­57) 6 MIA
526, laid down following rules of construction of a 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 to
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 thePage 47
47
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.   Versus   Gopal
Prasad 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:­
“...once   the   construction   is   settled,
the   court   is   bound   to   carry   out   the
intention   as   expressed   and   no
other...”
34. Justice B.K. Mukherjea J., 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 10:­Page 48
48
“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
the   will   as   the   Privy     Council
observed   in   Venkata   Narasimha   Vs.
Parthasarathy, 41 , I.A.51 at p.70 (21
I.C. 339 P.C.),
“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
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
testator’s   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   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   casePage 49
49
justified   in   adding   to
testamentary   dispositions……   In
all   cases   it   must   loyally   carry
out   the   will   as   properly
construed,   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   referred   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.   Cases
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.”
36. General principles for construction of a Will have been
reiterated   by   this   court   in   a   large   number   of   cases.   It
shall   be   sufficient   to   refer   to   a   three   Judge   BenchPage 50
50
judgment of this court in Navneet Lal alias Rangi Vs. Gokul
& Others, 1976 (1) SCC 630. After referring to judgment of
Privy Council and several judgments of this court, certain
principles were enumerated in paragraph 8 of the judgment,
which is to 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
meaning   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   V.   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
testator, his family relationship, the
probability that he would use words in
a particular sense. . . . But all this
is solely as an aid to arriving at a
right construction of the will, and to
ascertain the meaning of its languagePage 51
51
when used by that particular testator
in that document. (Venkata Narasimha’s
case(supra)  and  Gnambal   Ammal   V.   T.
Raju Ayyar)
(3) The true intention of the testator has
to   be   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.
Thakurain Bakhtraj 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   circumstances   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   full
effect   to   every   word   used   in   a
document,   such   a   construction   should
be accepted instead of a construction
which would have the effect of cutting
down   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   construction   of   wills   that   to   thePage 52
52
extent   that   it   is   legally   possible
effect   should   be   given   to   every
disposition   contained   in   the   will
unless   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 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   every
testamentary   intention   contained   in
the will. (Ramachandra Shenoy V. Mrs.
Hilda Brite)”
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   property   to   charities   is   manifest   from
the reading of the Will in its entirety.Page 53
53
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
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   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.Page 54
54
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   entire
properties,   which   are   our   self
acquired   properties,   absolutely   with
all the rights and after his/her life
time, and carry on the under­mentioned
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   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 of rent,
income or absolute right indicates the exercise of all the
rights including the right of alienation.Page 55
55
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:­
“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
expression ‘absolutely’ should be read
to   mean   that   the   surviving   testator,
namely, Rangammal would have only the
life   interest   to   enjoy   the   rent   and
income   from   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   charities   and   she   would
have   no   unqualified   or   unrestricted
power   to   enjoy   the   properties   as   she
pleases to defeat or to the detriment
of the gift over to the charities.” 
  (underlined by us)Page 56
56
43. Shri Ramamoorthy, Senior Advocate, learned counsel for
the   appellant,   have   contended   that   word   ‘absolutely’   as
used in the Will indicates absolute right of the survivor
to   deal   with   the   property   and   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   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   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
1 and 2 or an absolute estate in her
favour   subject   to   defeasance   in   the
event of her failing to have any issue
at   the   time   of   her   death   was   reallyPage 57
57
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   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   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   property   sold   shall   be   deleted
from the document and the remaining properties form part of
this document.Page 58
58
47. The above statement 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. 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   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 rightsPage 59
59
of survivor have been referred to as ‘absolutely with all
the rights’.
48. High Court in its judgment has cut down/abridged the
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 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   to   ignore   clear   words   or   add
something   of   its   own   or   dilute   the   meaning   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   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   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 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.
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   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 of law in reference to
a mutual 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 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:­
“...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
vivos,   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 survivor’s 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 the Will was a sort of comfort or
cushion   to   the   survivor   to   meet   with   any   unforeseen   or
unexpected contingencies, if any necessity arises.
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 purpose of the
Will is not lost even if survivor is given absolute right.
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 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   High   Court   that   the   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   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
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   in   the
Will after the death of Palaniappa Chettiar.
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.
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 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   regard   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   far   as   alienations   made   by
defendant no. 4 & 5 as null and void are maintained.
Creation of Trust by Will dated 27.9.1968
62. The High court has elaborately dealt with the matter of
creation   of   Trust   by   Will   in   paragraphs   79   to   80   of   the
judgment.
63. While noticing 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 without 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 testatrixPage 68
68
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   charities   during
our life time, a committee consisting of
the following authorities shall be formed
to carry out the following 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:
(1) 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
Commissioner,   Revenue   Divisional
Officer,   Gobichettipalayam   and
District   Munsif,   Gobichettipalayam
shall carry out the charities.Page 69
69
(2) After the death of both testator and
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   time   they   expressed   their   inability   to
carry out the charity or had requested 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   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:Page 70
70
“13.Whether   the   Will   dated   27.11.1980
executed in favour of 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   oral
evidence   on   records.   Defendant   Nos.4   and   5   have   examined
the   testators   as   DW.2   and   DW.4,     scribe   as   DW.3   and   a
Sub­Registrar 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   circumstances   and   discrepancies   and   it
was held that Ex.D­109 has not been executed 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 after 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.606 of 1989.
Reliefs
I. We   have   come   to   the   conclusion   that   Smt.   Rangammaltestatrix
  has   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 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:Page 72
72
(i) Sale   deed   in   favour   of   Dr.   K.S.   Palanisami,
defendant   No.13   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.B­28 and Ex.B­29).
(iii)Sale   deed   dated   24.3.1977,   first   Schedule,   Item
No.6,   in   favour   of   Thirugnanasambandam,   defendant   No.7
(Ex.B­116) and
(iv) Sale   deed   in   favour   of   Dr.   M.R.   Subbian   dated
20.2.1970, Schedule II, Item No.2 and 7 (Ex.B­114).
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 of 2005 stands dismissed.Page 73
73
III. The directions issued by the High Court in paragraph
116 are maintained subject to directions­I 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   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.
.....................J.
( A. K. SIKRI )
.....................J.
    ( ASHOK BHUSHAN )
New Delhi,
March 09,2017.

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