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TMI Blog1963 (4) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... both the suits. These two brothers had three sisters and Duraiswami, the plaintiff in O.S. 105 of 1952 is the son of Nachiar Ammal, one sister, while Kuppuswami, the plaintiff in O.S. No. 107 of 1952 is the son of another sister Venguammal. Defendants 3 to 6 are the children through another sister Lakshmi Ammal. Defendants 7 to 11 are the children of the 6th defendant, one of the sons of Lakshmi Ammal aforesaid. 3. Doraiswami, one of the nephews filed the suit O.S. Nos. 105 of 1952, for recovery of the properties set out in the C schedule to the registered Will executed by Perumal and Chinnappa, the two brothers on 31-10-1942, and marked as Ex. A-1 in the case, while Kuppuswami, the plaintiff in O.S. 107 of 1952, claimed relief of recovery of possession of the properties set out in the Schedule E to the aforesaid Will. Their main case was that the will, Ex. A-I is a mutual reciprocal Will under which, amongst other things, the aforesaid bequests have been made in their favour that it is an irrevocable Will, and that in any event it, represented a family arrangement between the two brothers Perumal and Chinnappa. Defendants 2, 4, 6 to 11, who are the real contesting defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a view to avoid disputes to our properties after our lifetime if any danger should happen to our lives suddenly and also with a view to nominate a person for performing the funeral ceremonies of ourselves and our wives, we have executed this Will with the following details: (3) This Will should come into effect after our lifetime. We are entitled to revoke or alter this Will during our lifetime. This Will will not be valid if during our lifetime any of us gets male or female children. Perumal Raja has a wife by name Kuppammal and Chinnappa Raja, a wife by name Ammani Ammal. Besides, we have three sisters. The eldest sister Nachiar Ammal is dead. She has got only one son by name Duraiswami Raja. He has got children. The other two sisters Lakshmi Ammal and Vengammal are at present living. Lakshmi Ammal has got four sons and Vengammal has only one son by name Kuppuswami Raja. (4) Of the under-mentioned properties, Kuppammal, wife of Perumal Raja, shall take the A schedule properties and Ammani Ammal, wife of Chinnappa Raja shall take the B schedule properties. After the death of their respective husbands, they shall enjoy the properties for their life without making any aliena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ark of Perumal Raja Mark of Chinnappa Raja. 6. The learned Advocate-General appearing for the plaintiffs, contended that Ex. A-I is a mutual reciprocal Will, that, the two brothers had executed the same on the distinct understanding that the document should take full effect according to its terms, and that it could be revoked or altered by both the brothers acting together only and that either of them individually was not entitled to revoke or alter the same. He urged that having regard to the main scheme underlying the document, it was not competent for Perumal Raja, who had derived considerable benefits under Ex. A-I, while yet enjoying and retaining the benefits so obtained, to cancel or revoke the Will. Alternatively, he also contended that Ex. A-I though styled a Will is essentially a family arrangement, which has been given effect to and acted upon by both the brothers, and that it was not open to the survivor to ignore the same and execute the second Will in derogation of the provisions of the earlier Will. 7. On the other hand, Mr. Mohan Kumaramangalam, learned counsel for the contesting respondents, contended that the document Ex. A-I is not a mutual reciproca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nised in English law as a single Will. It is in effect two or more Wills; 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 on the disposition of the property of the survivor. Wills are mutual when the testators confer upon each other reciprocal benefits and there may be absolute benefits in each other's property, or they may be life interests, with the same ultimate disposition of each estate on the death of the survivor. 11. A joint Will is a single testamentary instrument constituting or containing the Wills of two or more persons and jointly executed by them; while mutual Wills are the separate Wills of two or more persons which are reciprocal in their provisions and executed in pursuance of compact or agreement between two or more persons to dispose of their property to each other or to third persons in a particular mode or manner. Mutual Wills as distinct from joint Wills are sometimes described as reciprocal Wills. In describing a Will the adjective Mutu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be compelled to hold the entire estate upon trust to give effect to the provisions of the mutual Will. Vide 39 Halsbury, Lord Simonds, 3rd Edn. page 853 para 1299. 14. The leading case in England is the case of Dufour v. Pereira, (1769) 21 ER 332. In that case a husband and wife executed a mutual Will and after the death of the husband the wife proved the mutual Will and afterwards made another Will, revoking the mutual Will, and it was held that the wife had no authority, to revoke the mutual Will. Lord Camden delivering the judgment observed as follows: This question arises on a mutual Will of the husband and wife the Will is jointly executed by them. What the wife disposes of, is the residue of her aunt's estate, given to her by her Will. I do not find the cases go so far, as to consider a legacy to a wife, as excluding the husband by implication; but there is no occasion to determine that question. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n trust to perform the contract, for, the Will of the one who has died first, has, by the death, become irrevocable. But, on the contrary where the one who dies first has departed from the bargain by executing a fresh Will revoking the former one, the survivor, who has on the death of the other party to the arrangement' notice of the alteration, cannot claim to have the later Will of the deceased set aside or modified, either by way of declaration of trust or otherwise. 17. The learned Judge, however, affirms the statement of the law by Lord Camden in Dufour's case, (1769) 21 EE 332, that if the survivor had 'taken a benefit under the mutual Will, the view is perfectly well founded that he cannot depart from the arrangement settled under the mutual Will. 18. In Heys, In the estate of Walker v. Gaskill, 1914 P 192, a husband and wife who were joint tenants of lease hold properties executed mutual Wills in 1907, the arrangement between them being that those Wills were to be irrevocable. After the death of the husband, the wife executed a Will of her own in 1913, revoking the earlier mutual Will of 1907. The plaintiffs as executors propounded the wife's last Wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dants; and I must leave them to pursue their remedies in that other Division. 19. The aforesaid extract clearly shows that if the dispute had arisen not before a Court of Probate with limited jurisdiction, but in the Chancery Court and if the necessary parties had been impleaded the Court will have ample jurisdiction to enforce the rights created under the earlier mutual Will. 20. The next case of importance is the decision in In re, Oldham Hadwen v. Myles, 1925 Ch 75, in which a husband and wife made mutual Wills in the same form in pursuance of agreement so to make them but there was no evidence of any further agreement in the matter. Each gave his or her properties to the other absolutely with that same alternative provisions in the case of lapse. The wife survived and accepted her husband's! property under the mutual Will; subsequently married again and made a fresh Will ignoring the alternative provisions of her own mutual Will. Dufour's case, (1769) 21 ER 332 was relied upon but was distinguished on the ground that that case was based on Lord Camden's finding of fact that a certain unequivocal trust was agreed to and was created by the two parties who execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 1500/- under the terms of the wife's will. In 1943, the tenant for life died and the husband received the whole estate about 15000/- in value including the wife's share of the vested remainder. The husband remarried in September, 1945, and made a second Will in December, 1946, tinder which he made a number of gifts to individuals and charities essentially differing from the provisions of his first Will. Summons was taken out for determining under what trusts the testator's estate should be administered. It was held that the mutual scheme entered into by the spouses as expressed in their Wills was that the wife's moiety was impressed with a trust binding on the testator, and accordingly the entire estate left behind by the husband shall be divided into two moieties and one moiety was to be distributed in accordance with the provisions of the first mutual Will of the wife while the other moiety was to be distributed in accordance with the terms of The second Will of the husband. As a result of the second marriage the mutual Will of the husband became revoked and the only question was whether such revocation would operate as regards his moiety or even with reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement on which the mutual Will was founded, a. Court of Equity, by reason of its extraordinary power to enforce specific performance of contracts and to prevent frauds, will ordinarily enforce such agreement, in order to prevent fraud or injustice by decreeing a specific performance of the agreement or by fastening, or impressing, a trust on the property in favour of the beneficiaries of the Will revoked in violation of the arrangement......... 26. As regards the right of revocation however several courts of the various States in America appear to have taken varying views. In some cases the view appears to have been taken that there should be an express agreement between the testators prohibiting them from revoking the Will except by their mutual consent. The statement of the law in Vol. 57, American Jurisprudence, is more definite and emphatic against the revocation of mutual Wills. As the law is succinctly stated in Vol. 57, Section 713, it may be useful to set it out here: A will jointly executed by two testators or one or two separate Wills containing reciprocal provisions, and provisions for the benefit of third persons effective upon the death of the surviving testa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the contract, but also as against the properties in the possession of his personal representatives, heirs, legatees and devisees. Vide Vol. 58 pages 483-93. Reciprocal provisions as well as bequests to third persons in whose welfare the testators have a common interest in a single Will executed jointly by the testators have been held to be by themselves evidence that the Will was the fruition of a contract between the testators that it is irrevocable. 29. So far as the Indian Law is concerned; there are only three decisions directly bearing on the question. In Meenakshi Ammal v. Viswanatha Aiyar, ILR 33 Mad 406 a husband and wife executed a Will in 1897 in regard to their properties. After the death of the husband in 1899 the wife made a Will in 1900 containing provisions entirely different from the earlier joint Will. The question arose whether the latter Will was valid. After referring to Dufours case 1769. 21 ER 332 and the other cases the learned Judge held that on the facts of that case the subsequent Will executed' by the wife was valid and inasmuch as the wife did not get any benefit out of her husband's properties under the earlier Will, but she obtained the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1769) 21 ER 332 the learned Judges were of the opinion that that case has been understood in later cases in England as resting upon specific agreement between the executants of the joint Will prohibiting revocation except by the mutual consent of both. 32. Mr. Mohan Kumaramangalam, learned counsel for the respondent, placed considerable reliance upon this decision of the Allahabad High Court as completely supporting his contention not only with the legal contentions he had raised but also with regard to the interpretation of the Will in the present case, as according to him, the Will in the Allahabad case was on similar terms as in the present case with reference to the crucial clause regarding revocation. We confess that the matter is not free from difficulty. But after a careful consideration of all the aspects of the matter, we are inclined to take the view that a joint mutual 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frustrate and defeat the very object and purpose for which both the brothers executed the Will. The position, however, will be different if both the brothers together desired to modify or cancel the will during their lifetime. There is nothing strange in such a course as they are the owners of the properties and it is upto them to cancel or modify the arrangement which they have made in regard to their own properties. 35. The clause we are entitled to revoke or alter the Will during our lifetime can in the context mean only revocation or alteration during the lifetime of both. It would be highly inequitable and work serious injustice and cut at the very foundation of the agreement if this clause should be interpreted in a manner which would enable the survivor to commit a breach of faith when the deceased has acted upto the arrangement during his lifetime and had died in the full hope and confidence that the surviving brother would stand by and abide by the mutual arrangement. The clause extracted above, in its natural and grammatical construction and according to its plain prima facie import does not warrant any such view. We are clearly of the opinion that unless the langua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect, really emphasises and strongly points to the same interpretation. The testators are sensibly alive to the restriction which they have imposed upon themselves that the Will cannot be cancelled except during their lifetime and toy their mutual consent and if the clause were to have its full effect, their santhathis will remain unprovided for. It is to provide for that contingency that they have provided that in case of birth of a santhathi to either of them, the Will shall, cease to have effect, i.e., quite independently of the mutual consent. Therefore if both the clauses are read together we are convinced that the Will can admit only the one interpretation adverted to above. 37. On the question as to whether Perumalraja had obtained benefit under the mutual Will, we are unable to accept the contention of Mr. Mohan Kumaramangalam, that Perumalraja became entitled to all the properties in his own right and solely by survivorship. The contention is wrong both factually and legally. In the absence of evidence to the contrary, the presumption is that all the properties both joint family as well as self-acquired properties belonged to the two brothers equally. But for the Will, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Executors and Administrators, 14th Edn. Vol 2, page 884, for the statement of the law. Reference may also be made to the following statement of the law in 39 Halsbury (Lord Simonds Edn) page 854: When mutual Wills, whether contained in a joint Will or in separate documents, relate to joint property, the agreement to make the mutual Wills, and the making of the dispositions in pursuance of the agreement, sever the joint tenancy and convert it into a tenancy in common. 39. Mr. Mohan Kumaramangalam further urged that the later Will Ex. B.I executed by Perumalraja recites that both the brothers were living together as members of a joint family without partition and therefore it should be held that he became entitled to the properties only by survivorship. In view of what we have mentioned above, we are unable to agree with this contention both as a matter of law and as a result of the reciprocal arrangement envisaged in Ex. A.I survivorship is clearly put an end to so that the several dispositions in the mutual Will would take effect. Perumalraja cannot thereafter claim higher rights as was done under Ex. B.I. 40. It only remains to deal with the last point raised by Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration of obtaining for his wife a far more assured and satisfactory position. 41. In Patrachariar v. Srinivasa Chariar, ILR 40 Mad 1122: AIR 1918 Mad 531 a Will by a father in a joint Hindu family bequeathing a portion of his ancestral properties to his daughter with the consent of his adult son and with the consent of his relations who are interested in a minor was upheld as a family settlement. This is also a case in which the family settlement was not given effect to or acted upon for a considerable period from the moment of the execution of the document, and the document was intended to operate only as a Will. While upholding the Will the learned Judges observed as follows at page 1127: I think that on the logical application of the principles laid down in the cases I have referred to above and seeing that their Lordships of the Privy Council treated the disposition by Will in certain circumstances though of ancestral property as standing in the same footing as dispositions by deed inter vivos provided the consent of the parties to be affected is obtained, the family settlement made by Will (Ex. V-a) in this case ought to be upheld. 42. Again in Venkoba Sah v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernatively the Courts are also bound to effectuate the provisions of the Mutual Will, as a bona fide family arrangement. Nor can the Hindu Law of coparcenary estate and survivorship really affect this interpretation, on the totality of the facts of this case. Once it is conceded that Chinnappa Raja's self-acquired properties were also dealt with under the Will, in the setting of the irresistible inference of a reciprocal understanding between the two brothers regarding both the enjoyment and the subsequent devolution of the properties in a manner modifying the normal course under Hindu law, survivorship must be considered at an end. On the facts and probabilities of this case, in the light of well-established principles, the appeals have to be allowed. 47. But the paucity of decisions upon mutual and reciprocal Wills, as far as this country is concerned, and certain refinements of the law in the catena of English decisions upon this aspect of the law, that so rarely comes up before Courts, have tempted me to add some brief remarks. 48. The problem is, can we discern an ebb-tide of the law, in the English cases, after the leading decision in (1769) 21 ER 332 so that Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in Stone v. Hoskins, 1905 Probate 194 would appear to operate; the testament may be valid; but the representatives or legatees can only take the estate burdened with the obligation to perform the trust. 50. It has to be noticed that this seeming ebb-tide in the case-law in England, since Dufour's case, (1769) 21 ER 332 really implies no alternation of the basic principle. Actually, as my learned brother has pointed out, 1951 Ch 148 which is the latest case, exhibits an instance of the affirmation of the principle of a trust created by a mutual Will. The real development is that Courts in England have been reluctant to infer an intention to create a trust or equitable interest, by means of an irrevocable mutual testament, upon the facts, merely because two persons happen to make a single document of their testamentary dispositions. 51. As far as this country is concerned, the emphasis, in the Supreme Court decision in AIR1959SC71 is, as my learned brother has shown, upon the benefit taken by the surviving testator. Their Lordships would appear to have laid emphasis upon that form of a mutual Will, in which each party is in a relationship of both testator and legatee, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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