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TMI Blog1964 (4) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... d a will, the truth and genuineness of which has not been disputed before us. Under that will, he bequeathed the properties obtained by him at partition to his wife. A substantial part of the controversy in this case turns on the construction to be placed on this will. The testator died shortly after the execution of the will. Bagirathi entered into immediate possession of all the properties; but Chakrapani Chettiar did not give her peace. He was the first defendant in O. S. 81 of 1917 in the Subordinate Judge's court, Kumbakonam, disputing the genuineness of his brother's will. The court found that the will was true and had been validly executed. After the death of Chakrapani Chettiar, Bagirathi filed O. S. 170 of 1943 in the District Munsif Court, Kumbakonam, to avoid a disposition made by her mother-in-law. In that litigation also the validity of the will executed by Ranganathan Chettiar was upheld. (2) During her lifetime Bagirathi effected a number of alienations in respect of her properties, the principal one being a settlement deed Ex. B. 17 executed in favour of the 4th defendant, Sivaprakasa Chettiar, a cousin-brother of hers and in favour of her sister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charity as she might choose. But it is evident that he intended that Bagirathi's right to the western house should be more limited. That such a distinction was intended between the two sets of properties is clear from the interpolation of the word Aanal (but) between them. Secondly, while in the case of other properties, Ranganathan Chettiar says that Bagirathi should enjoy them Thannayul Muluvathum (for the entire period of her life), in respect of the house and he says that Bagirathi would-be entitled to enjoy it Thannayul Pariyantham indicating thereby that the latter was to be for the duration of her life. Further in the latter case he gives a direction mandatory in form that it should be given Koduthuvida vendum to his brother's son. No son of Chakrapani Chettiar was in existence at the time when Ranganathan Chettiar executed the will. She was left to choose him. If any son of his brother were to get the property it must be by virtue of Bagirathi's appointment; nevertheless there is an unmistakable indication in the language of the will that the testator intended that the western house should not be disposed of in the same manner as the rest of the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by importing the grant of a limited estate to the first and the remainder to the subsequent donee. Mr. R. Ramamurthi Iyer appearing for the appellants has contended that the provision as to disposition of the property to the charity at the end of Bagirathi's lifetime must be taken to indicate that she was given only a life estate. Learned counsel in this connection has invited our attention to certain decisions to support that contention. Lakshmana Nadar v. Ramier, was one of such cases. There a Hindu bequeathed his properties to his wife expressly to be enjoyed for her life and that after her lifetime the properties were to go to his daughter. The Supreme Court held that the language of the will clearly showed that the wife was to get nothing more than a life interest and that thereafter the daughter should take the property absolutely. At the same time, their Lordships pointed out that in ascertaining the intention of a testator the court was bound to keep in view the surrounding circumstances, his ordinary notions in respect of the devolution of his property, his family, relationship etc. The contention in that case was that the widow got a Hindu widow's estate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anguage of the document, a limited estate can be inferred. For example, if it is to be held that the direction to the wife to devote the properties to charity amounts to a trust in favour of such a charity, or, at any rate, a power of appointment in her to such objects, it can reasonably be argued that what was conferred on the legatee was a limited estate, coupled with a trust or a power of appointment; for existence of such trust or power would show and intention that a limited estate was given to her. (11) A trust is an obligation annexed to ownership and the trustee holds the property subject to the obligation which the testator has imposed on him. We have therefore to see was there an obligation in Bagirathi to make over after her lifetime the properties to a charity? A trustee has no freedom of choice, and he will be bound to distribute in accordance with the directions given by the testator; he no doubt holds legal title in the property but the choice of the beneficiary is not his but of the testator. A power of appointment, on the other hand, does not imply any idea of property in the donee of the power. Unlike the case of a trust, there is no obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arasami v. Subbaraya, ILR 9 Mad 325 where the executors were directed to give the properties to the testator's brother etc, according to your wishes . It was held that no trust could be held to be created. The direction to distribute in such cases, must be regarded as a mere expression of a desire. The following passage in Theobald on Wills 12th Edn. page 1255 will be found useful in this connection: Therefore, mere expressions of a desire that the donee will be kind to remember, consider, deal justly by, educate and provide for, take care of, or do justice to, a certain class of persons, will raise no trust . In Karunakaran Stephen v. Administrator General, Madras 49 Mad LJ 197: (AIR 1925 Mad 686) an Indian Christian gave his properties to his wife, saying After me she should enjoy the said properties and she would at her death divide and give the same to these three persons, A, B and C according to her wishes . The court held that there was an absolute bequest in favour of the wife and not a mere life estate coupled with a power of appointment Krishnan J. observed: ................It is not a case at all of any power of appointment. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative. It is not very clear from the evidence as to why that recital was made and how it happened that Sivaprakasa agreed to it. There is however other evidence in the case to show that the settlement deed must have been intended to be an operative document. For example under Ex. B. 13 both Bagirathi and Sivaprakasa conveyed a property included in the settlement deed to the first defendant, the Kumbakonam Municipality. Besides, there are a number of lease deeds showing that Sivaprakasa was in possession of the properties concerned in the settlement deed. That he was living with his cousin sister right through and was in de facto possession of the properties is not disputed. The learned Subordinate Judge has found that the settlement deed was intended to be operative. We are unable to say that his conclusion based as it is on the evidence, in the case is wrong. (15) But this question has lost much of its importance, because of the residuary clause contained in Ex. B. 61, the alleged will executed by Bagirathi prior to her death. If that will were found to be genuine, Sivaprakasa will be entitled to the properties under the will at least and the alienations made by him would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll. The original of the letter has not been produced but no objection was taken to the admission of the copy in evidence. We must, therefore, take it that as early as 7-4-1959, Sivaprakasa has put forward his claim under the will. It is too much of a speculation to say that the will which was in existence on that day was not so 3 days earlier. The learned Subordinate Judge was prepared to take this as an early publication of the will. Though we have some hesitation in the matter we are not prepared to differ from him. (18) It is well known that a will does not require registration for its validity. But in the present case, Sivaprakasa had admitted that the testatrix wanted to have her will registered. He even admitted that she had paid him a sum of ₹ 50 for that purpose. The Registrar's office was situate about a mile from the residence of the parties. Non-registration of the will is therefore an important circumstance against its truth. The explanation for non-registration is that since the execution of the will, Sivaprakasa was busy with electioneering work, he having been put forward as a candidate for one of the Wards in the Kumbakonam municipality. Ultimatel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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