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Scaria Korah of Thayil Vs. Koran Mathu of Thayil and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberAppeal Suit Nos. 405 and 406 of 1957
Judge
Reported inAIR1962Ker323
ActsSuccession Act, 1925 - Sections 88
AppellantScaria Korah of Thayil
RespondentKoran Mathu of Thayil and ors.
Appellant Advocate K.P. Abraham, Adv.
Respondent Advocate T.S. Krishnamurthy Iyer, Adv. for Respondent 1 and; K.K. Mathew, Adv. for Respondent 2
DispositionAppeals allowed
Cases ReferredKrishna Bhatia v. Narayana Bhatta
Excerpt:
.....88 of succession act, 1925 - whether there was clerical error while making will - intention of testator gathered from words used by him - testator deemed to have expressed what he meant and meant what he has expressed in document - no clerical error shall be presumed in will - every attempt to give effect to expressed provisions therein as far as same legally possible. - - gopalaswami 41 cal wn 14 :(air 1936 pc 281). the cardinal rule of interpretation for deeds is well as other instruments is to gather the intention from the words, to take into consideration the language of the entire deed, and to adopt an interpretation which gives effect, if possible, to all the parts and does not reject any of them'.one other consideration in the circumstances is as observed in krishna..........and george jointly and without charging my late-son-skaria's son koran (plaintiff) or on the a schedule properties sol apart for him hereunder, or aley if she survives me or on the b schedule properties set apart for her for her life..... in addition to the above, the responsibility of maintaining my wife aley in accordance with her wishes till her death and for educating skaria's son korah to the highest standard available at kottayam if he study shall rest on malhu and george jointly. after the death of aley, the b schedule properties shall be taken equally by mathu and george and if korah attain majority the b schedule properties shall be surrendered to him.....'the plaintiff was admittedly a minor of about 11 years of age on the date of the will. under the will the a schedule.....
Judgment:

M. Madhavan Nair, J.

1. These two appeals are by the plaintiff in O. S. Nos. 15 of 1951 and 150 of 1123 on the file of the Sub-Court, Kottayam. The properties involved in the two suits along with several others belonged to one Koran. He executed a Will on 13-7-1113, evidenced by Ext. 1, and died on 16-7-1113 M. E. He left behind him his widow Aley, two sons the defendants 1 and 2, and a grand-son, the plaintiff, by a predeceased son. The Will contained two schedules of properties, A and B. The material provisions in the Will are as follow:

'.....The entire movable and immovable properties, the trade and everything that remains to be realised, that belong to me at my death, excluding only those that are specified in the schedules A and B herein-under shall be taken by Mathu (1st defendant) and George (2nd defendant) who are now alive among my sons. .... My debts now subsisting and coming to be in future, shall be discharged by the abovesaid Mathu and George jointly and without charging my late-son-Skaria's son Koran (plaintiff) or on the A schedule properties sol apart for him hereunder, or Aley if she survives me or on the B schedule properties set apart for her for her life..... In addition to the above, the responsibility of maintaining my wife Aley in accordance with her wishes till her death and for educating Skaria's son Korah to the highest standard available at Kottayam if he study shall rest on Malhu and George jointly. After the death of Aley, the B schedule properties shall be taken equally by Mathu and George and if Korah attain majority the B schedule properties shall be surrendered to him.....'

The plaintiff was admittedly a minor of about 11 years of age on the date of the Will. Under the Will the A schedule properties were allotted to him unconditionally, and free of debts. The plaintiff attained majority on 7-12-1120. According to him, after the testator's death on 16-11-1113 the A schedule properties had been in the possession of defendants 1 and 2 till they were surrendered as per Ext. II to the plaintiff's mother on behalf of the plaintiff on 11-8-1120. The plaintiff there-fore seeks in O. S. No. 150 of 1123 to recover from defendants 1 and 2 the profits of A schedule properties for seven years, 1113 to 1120. The plaintiff estimates such profits to be Rs. 300/- per annum and therefore the claim is for Rs. 2100/- and also for compensation money received by defendants 1 and 2 on acquisition of a portion of the A schedule properties by the State which the plaintiff mentioned to be Rs. 120/-, with interest on both amounts from date of suit.

2. Aley died on 19-11-1950. The plaintiff was then a major and therefore entitled to have the B schedule properties surrendered to him; but defendants 1 and 2 took possession and been holding the same and therefore the claim in O. S. No. 15 of 1951 is for recovery of the B schedule properties with profits estimated at Rs. 360/- and 40 parahs (Kalloorkadan) of paddy per annum from 19-11-1950.

3. The 1st defendant denied all liability and contended that, after the death of Aley, the B schedula properties devolved on defendants 1 and 2 absolutely, that the plaintiff was entitled to possession of A schedule properties only on his attaining majority and that the mention in the Will of B schedule properties as liable to be surrendered on his attaining majority was a clerical error for A schedule properties. The 2nd defendant contended that he was never in possession of any portion of the A schedule properties and therefore was not liable for their profits. The Subordinate Judge accepted the defence contentions and dismissed the suits except in regard to the compensation money received by defendants 1 and 2 in regard to the acquisition of a portion of the A schedule properties, such amount being only Rs. 34 Chs. 26 and Cash 10. Hence these second appeals by the plain-tiff.

4. The entire case in both these appeals turns on the construction of Ext. I Will, particularly on the question whether the mention of the B schedule as the properties to be surrendered to the plaintiff on his attaining majority was a clerical error for the A schedule properties.

5. Counsel for the defendants contends that a reading of the Will as a whole would indicate that the intention of the testator could only have been that the A schedule properties should be surrendered to the plaintiff on his attaining majority and that B schedule properties were to be taken absolutely by defendants 1 and 2, in equal moieties, after the death of Aley. It has been repeatedly laid down that in interpreting a Will regard must always be had not merely la the words used but to the evident intention of the testator. See Taran Singh Hazari v. Ramratan Tewari ILR 31 Cal 89. But the proposition is also equally clear that in order to understand the intention of the testator, primarily the words of the Will are to be considered.

'The intention of the testator must be collected from the words employed by himself in the will, and no surmise or conjecture of any object which the testator may be supposed to have had in view can be allowed to have any weight in the construction of his will unless such object can be collected from the plain language of the will itself'

See Abbott v. Middleton (1858) 7 HLC 68, (114) and Dinbai v. K. B. Nusserwanji Rustomji ILR 49 Cal. 1005 at p. 1008 : (AIR 1922 PC 311 at p. 312). 'No doubt, the intention of the testator is to be the guide, but such intention is to be sought in his words a rigorous attention to the intention of the testator is apt to lead the mind insensibly to speculate upon what the testator may be supposed to have intended to do instead of strictly attending to the true question, which is : what that which ha has written means -- William on Executors, (11th Edn.), Vol. II, p. 841'.

Of course, as observed by the Privy Council in Purnanan-thachi v. Gopalaswami 41 Cal WN 14 : (AIR 1936 PC 281).

'The cardinal rule of interpretation for deeds is Well as other instruments is to gather the intention from the words, to take into consideration the language of the entire deed, and to adopt an interpretation which gives effect, if possible, to all the parts and does not reject any of them'.

One other consideration in the circumstances is as observed in Krishna Bhatia v. Narayana Bhatta 1962 Ker LJ 149 : (AIR 1962 Kerala 322) by a Bench of this Court.

''..... the distinction between a defeasance clause and a repugnant one, which is sometimes a nice one, must be constantly kept in view. Where the Intention of the donor or testator is to maintain an absolute estate conferred on the donee but he adds some restrictions in derogation of the incidents of such absolute ownership, the clause is a repugnant one and is therefore void. If however the intention expressed, or to be necessarily implied, is to extinguish the absolute estate on the happening of a contingency and where the effect of the termination of the said absolute estate would not be the violation of any rule of law, the clause is a defeasance clause and would operate according to its tenor'. 'One circumstance that generally cuts down an absolute estate to a life interest is the presence of a gift over in unmistakable terms which is not a mere gift by way of defeasance' '.

6. Under Ext. I, the A schedule properties have been set apart absolutely to the plaintiff. Though the plaintiff was then a minor, of only 11 years of age, no provision was made for the possession of the properties during his minority. In the absence of any provision by the testator, the possession of the properties of the minor can only he with his de jure guardian on his behalf. It is admitted by counsel that the plaintiff's mother was then his natural guardian (his father having died before the date of the will). The direction to surrender properties will then be absolutely meaningless if it referred to A schedule properties as contended by the defendants. The theory that the direction in the Will to surrender B schedule properties was a clerical error and really meant A schedule properties cannot therefore be accepted as correct.

7. On the other hand, the context in which the expression appears in the Will indicates clearly that thedirection to surrender can only relate to the B Bcheduleproperties. The provision reads :

'After the death of Aley, the B schedule properties shall be taken equally by Mathu and George and if Korah attain majority the B schedule properties shall be surrendered to him.'

The provision has been worded in the most unambiguous terms. The meaning of the testator is clear that B schedule properties which have been set apart to Aley for her life are to be taken after her death by defendants 1 and 2 in equal moieties and, if the plaintiff attained majority, should be surrendered to him. As observed in 1962 Ker LJ 149 : (AIR 1962 Ker 322), if the intention expressed or necessarily implied in the Will is to extinguish the absolute estate of a devisee and create an estate in another on the happening of a particular contingency, it is a case of defeasance, by a condition subsequent of the prior estate. The absolute estate conferred on defendants 1 and 2 on the death of Aley became a limited estate if and when the defeasance clause providing for a surrender of the property to the plaintiff on the attainment of his majority came to effect.

Section 88 of the Indian Succession Act provides that if two clauses in a will are inconsistent, effect shall be given to the later one. It then follows that, even if the estate conferred on defendants 1 and 2 in the B schedule properties on the death of Aley be absolute, the subsequent provision, for surrender of the properties to the plaintiff on his attaining majority reduces it to a limited estate lasting only till the plaintiff became a major, I find little inconsistency in the provisions regarding B schedule properties in the Will. If an estate is given to A, and if B attained majority then to B, the meaning can only be that A's absolute estate was subject to defeasance on the attainment of majority by B when the estate will vest iri B. Viewed thus, it is not impossible to give a rational meaning to the provision for surrender of the B schedule properties to the plaintiff on his attainment of majority, even though the prior disposition of the same in favour of defendants 1 and 2 is apparently absolute in its terms. The intention of the testator has to be gathered from the words which tie has used. He must be deemed to have expressed what he meant, and meant what he has expressed in the document. As there is no impossibility in giving effect to all the provisions as expressed in the Will, effect must necessarily follow the provisions of the Will as they are. No clerical error shall be presumed in a Will and every attempt shall be to give effect to the expressed provisions therein as far as the same is legally possible.

8. The appeals therefore succeed. They are allowed with costs against defendants 1 and 2.

9. The present decision will be treated as a preliminary judgment in both the cases. The quantum ofmesne profits due to the plaintiff as well as the compensation for improvements, if any, due to the defendant willbe adjudicated in the final decree in the suits.


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