1. The two Letters Patent Appeals arise out of the common judgment of Basheer Ahmed Sayeed, J., in S. A. Nos. 1342 and 1343 of 1954. They raise identical and common questions of fact and law arising out of two suits, O.S. Nos. 105 and 107 of 1952, District Munsif Court, Tiruchirapalli. The two suits though filed separately by two different plaintiffs are identical in averments made and the reliefs claimed by them. The defendants are the same in both the suits.
2. There were two brothers, one Perumal who died in 1950 and one Chinnappa who died in 1949. Perumal left behind him his widow, Kuppammal, the first defendant in both the suits while Ammani Ammal the widow of Chinnappa is the second defendant in 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, contested the suit on the ground inter alia that the Will Ex. A-I, was not a mutual reciprocal Will, but was only a joint Will, that it was open to the testators to revoke or cancel the same either jointly or separately during their lifetime or even after the death of either of them, and that as a matter of fact, Perumal, the surviving brother, had executed a registered Will, Ex. B-I, dated 9-8-1950, canceling and modifying the earlier Will and that the plaintiffs are not therefore entitled to claim any rights in terms of the earlier Will, Ex. A-I. They also pleaded that Ex. A-I was not a family settlement but merely a Will and that as the two brothers, Perumal and Chinnappa, were members of a joint family on the death of Chinnappa, the entire properties comprised in and dealt with under the earlier Will survived to Perumal, the surviving brother, and that the earlier Will, Ex. A-I, became inoperative and wholly unavailing to the plaintiffs.
4. It is enough to state that the learned District Munsif by a common judgment dismissed the plaintiffs' suits, while the learned Subordinate Judge, on appeal, took a different view and decreed the plaintiffs' suits as prayed for. By a common judgment in the aforesaid two second appeals, Basheer Ahmed Sayeed, J., has restored the judgment of the trial Court and dismissed the suits of the plaintiffs. The present Letters Patent Appeals are by the two plaintiffs.
5. As the only substantial question in dispute relates to the determination of. the true legal character of the document Ex. A-I and the proper interpretation of its terms, an agreed translation of the same is set out hereunder: -
'(1) Will dated 31st October, 1942, executed by (1) Perumal Raja and (2) Chinnappa Raja, both sons of Alga Raja, Kshatriya caste, Agriculturists, residing at Kallikudi village, Kannanore, village, Majara, Lalgudi Taluk, jointly with our free will and without instigation from others and with good intention is as follows:
(2) We both are until now living together as a joint family without partition. The properties set out in the Will are both self-acquired and ancestral. Of us, Perumal Raja is now aged about 70 years and Chinnappa Raja about 65 years. Uptill now we have had neither male nor female issue. As we are not likely to get any santhathi hereafter and as we often become unwell by reasons of our old age and with 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 alienation and shall live within the income of the properties.
(5) Krishna Raja, son of our sister Lakshmi Ammal, and her husband Venkata Raja of Mahalikudi, Lalgudi Taluk and who has been living with us from his young age, shall perform the funeral obsequies of both of us and our wives without any shortcomings and shall take the said properties after the lifetime of the four of us absolutely for himself and his heirs. If per chance, Krishna Raja should die during the lifetime of the four of us Celvarangam Raja who is the son of Krishna Raja and who is to take the F schedule properties shall perform our funeral obsequies and take the A and B schedule properties. Besides, he should also perform our annual ceremonies without any shortcomings and also feed the poor on those days.
(6) Duraiswami Raja, son of our elder sister and Alagar Raja of Mahalkuddi Lalgudi, Taluk, and his heirs shall take the C schedule properties after our lifetime and enjoy the same without alienating the same in any manner.
(7) Our second sister Lakshmi Ammal shall take and enjoy the D schedule properties during her lifetime without alienating the same in any manner and after her lifetime her four sons shall take the' same equally and shall not alienate them in any manner. If per chance Lakshmi Ammal should die even during our lifetime, her four sons and their heirs shall enjoy the D schedule properties as aforesaid.
(8) Kuppuswami Raja, son of our third sister, Vengammal, shall enjoy the E schedule properties without alienating the same in any manner. Kuppuswami Raja has no issues at present. If per chance he does not get any issue during his lifetime, the said properties shall be taken by the heirs of Lakshmi Ammal equally along with the D schedule properties.
(9) Celvarangam Raja, minor aged 5 years, son of Krishna Raja, shall take the F schedule properties absolutely.
(10) Krishna Raja and after him his heirs while enjoying the C schedule properties shall out of their income, give 9 kalams of paddy and have daily puja performed to Sri Visalakshmi Amman in Kallakudi village without any shortcomings.
(11) Besides, whatever cash, outstandings, jewels, vessels and all other moveable properties, we may have at the time of our death, shall be taken and enjoyed absolutely by the aforesaid Krishna Raja. No one else has any right to the same. We have no debts to pay.
Mark 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 reciprocal Will, but a joint Will simpliciter, in the sense that the two testators were at full liberty to cancel or alter the Will at any time they liked either jointly or individually during their joint lives or after the death of one of them. He contended that on the death of Chinnappa, Perumal became entitled to all the properties in his own right by survivorship and not under the earlier Will, with the result that the Will cannot be given effect to as a mutual and reciprocal Will.
He further urged that the even if Perumal had obtained any benefit from Chinnappa under the earlier Will, there was no agreement between the two brothers that the Will can be revoked only jointly by both of them, but that on the other hand the two testators have reserved to themselves a unilateral power to revoke or cancel the Will either individually or jointly during their lifetime or even after the death of one of them and that by reason of the later Will Ex. B-I the earlier Will has been validly cancelled by the exercise of the unilateral power of revocation reserved expressly under the earlier Will.
8. Lastly he contended that both in its form and in its operation, Ex. A-I is a Will only and it does not represent any family settlement; his main contention being that the entire properties dealt with under the earlier Will are all joint family properties, and that on the death of Chinnappa, Perumal became entitled to all of them by survivorship so that there were no properties of Chinnappa, which could be claimed as his own separate properties, on which Chinnappa's Will can possibly operate. We have carefully considered these contentions of the counsel on both sides, and we are of opinion that the points raised by the learned Advocate-General are sound and should be accepted.
9. The law relating to joint and mutual Wills has its origin in Roman Dutch Law. But a joint or a mutual Will is not wholly unknown to our law though only very few cases have come up for decision before the Courts in India.
10. The law relating to joint Wills and mutual Wills is best stated in 39 Halsbury, Simonds Edn., 3rd Ed. page 846, para 1279 and page 847, para 1280:
'A joint Will is a Will made by two or more testators contained in a single document, duly executed by each of 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; 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 'Mutual' or 'reciprocal' is used to emphasise and denote the contractual element which distinguishes it from a joint Will.
12. In Govindan Katmal v. T.T. Lakshmiamma, : AIR1959SC71 , the distinction between a mutual Will and a joint Will is pointed out as follows:
'A Will is mutual when the 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 position of a mutual Will.'
13. In England the Courts have evolved 'their own principles of law regarding joint and mutual Wills and so far as English law is concerned, the principles appear to be fairly well settled. In regard to joint and mutual Wills, the decisions in England have recognised a distinction in the powers and jurisdiction of a Court issuing a probate and a Court whose jurisdiction has been invoked by a party for the enforcement of the rights based upon the agreement embodied in a mutual Will.
An examination of the cases in England shows that in the case of a mutual Will, if there is an agreement that neither of the testators shall have power to revoke, and the surviving testator receives benefits from the deceased under the mutual Will, the survivor is not entitled to revoke the Will when the first testator had died leaving the mutual Will unaltered and unrevoked in pursuance of the agreement and in the hope and trust that the mutual Will will be adhered to by the survivor. If, however, the survivor in breach of faith revokes a mutual Will by making a new Will, it is the new Will which will' have to be necessarily admitted to probate so far as the properties of the survivor are concerned. In an application for probate the Court has no jurisdiction to enquire into the nature of the rights of the testator in the property covered by the Will. If the probate Court is satisfied about the due and proper execution of a Will by a testator in a sound disposing state of mind, it is bound to grant a probate of the Will.- It is however, open to the beneficiaries under the mutual Will to take proceedings in the Chancery Division for the enforcement of their rights, and the execution of the trust as envisaged in the mutual Will. The personal representatives under the latter Will can 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 must be decided by the laws of this country. The Will was made here; the parties lived here; and the funds are here. Consider how far the mutual Will is binding, 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. 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 Camilla 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.
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 interests 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.'
15. This classical statement of the law by Lord Camden came up for consideration in subsequent cases and it is sufficient to refer to a few of them.
16. In Stone v. Hoskins, 1905 P 194, the testator who died earlier did not adhere to the mutual Will but had executed a fresh Will and it was held that it was therefore competent to the survivor to revoke the mutual Will. As the headnote itself adequately brings out the principle underlying that decision, it is sufficient if it is set out:
'Where two persons have made an arrangement as to the disposal of their property and executed mutual Wills in pursuance of the arrangement, the one of them who predeceases the other dies with the implied promise of the survivor that the arrangement shall hold good; and if the survivor, after taking a benefit under the arrangement, after his Will, his personal representative takes the property upon 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 Will of 1913 and it was held that they were entitled to the grant of a probate.
The learned Judge held that the execution of the joint Will by the husband and wife severed the joint tenancy and created a tenancy in common. The defendants who opposed the grant of the probate relied upon Dufour's case, (1769) 21 ER 332. But the learned Judge held that that case was not applicable as the case before Lord Camden was decided by the Chancery Court and that the function of the Court of Probate was merely to ascertain and pronounce what is the last Will of a testator entitled to be admitted to probate. The defendants in the alternative prayed for a declaration that the plaintiffs, the executors under the wife's later Will, were trustees for the defendants to the extent of the benefit given to them under the earlier Will and as such held the property in trust for that purpose.
But the learned Judge declined to grant any such declaration observing as follows:
'No doubt theoretically, this Court, as a Court of one of the Divisions of the High Court of Justice, under the Judicature Acts can and ought to - but only where it can conveniently and properly do so - decide all matters in controversy in any action between the parties to the action; In the goods of Tharn, Tharn v. Macdonald, (1878) 3 PD 76. But this Court is in practice a Court of Probate and not of construction. It should, generally speaking, only continue testamentary documents in so far as it is necessary to decide what testamentary documents should be admitted to probate.
But I am asked to advance from the region of testamentary dispositions into that of contracts and trusts, and to declare certain trusts upon, the footing of contract. Contracts and trusts are beyond and outside my jurisdiction in probate matters. Even if I ventured to declare any trusts, they would have to be administered in the Chancery Division and not in this. If I presumed to? pronounce upon any contract to make a declaration upon any trusts, in this case, I am not satisfied that I have all the necessary parties before me, and I have no knowledge of the state of the as sets. What I am asked to do appertains especially to proceedings of the character expressly assigned to the Chancery Division by Section 34 of the Judicature Act, 1873.
In my opinion, I cannot accede to the prayer of the alternative claim of the defendants; 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 executed that mutual Will and that such an agreement to create a trust cannot be inferred in the case under decision, as the mutual Will gave absolute powers to the survivor.
21. The next important case is the decision in Gray v. Perpetual Trustees Co., 1928 AC 391, arising out of a case in New South Wales in Australia. In that case a husband and wife had simultaneously made mutual Wills giving each to the other a life interest with similar provisions in remainder. It was held that it was not in itself evidence of an agreement not to revoke the Wills. It was also held that in the absence of a definite understanding to that effect there was no implied trust precluding the wife from making a fresh, will inconsistent with the former Will even though she had taken the benefits conferred by the Will. Dufour's case, (1769) 21 ER 332 and Walpole's case, (1797) 3 Ves 402 were explained and the decision in Re Oldham, 1925 Ch 75 was approved. Lord Haldene delivering the judgment of the Board distinguishing Dufour's case, (1769) 21 ER 332 observed as follows at page 400:
'The case before them is one in which the evidence of an agreement, apart from that of making the Wills in question is so lacking that they are unable to come to the conclusion that an agreement to constitute equitable interests has been shown to have been made. As they have already said, the mere fact of making Wills mutually, is not at least by the law of England, evidence of such an agreement having been come to. 'And' without such a definite agreement there can no more be a trust in equity than a right to damages at law.'
22. The latest case in England dealing with mutual Wills is In re, Green (Deceased), Lindner v. Green, 1951 Ch 148. In that case, the husband and wife made mutual Wills in like terms in 1940. At that time they had little property but were (subject to a life interest) absolutely entitled in reversion to substantial estate given to them in equal shares or to the survivor if only one of them survived the tenant for life. The main scheme of the mutual Wills of the husband and wife was that whoever survives shall be entitled to the properties of the other who died first including the vested remainder referred to above . The mutual Wills contained several bequests and legacies on similar terms. The wife died in 1942 and the husband succeeded to her estate amounting to about 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 morety or even with regard to the wife's moiety. It was held that the mutual Wills must take effect not at a Will but as a evidence of a trust plainly to be discerned in the two Wills.
The decision in In re Oldham, 1925 Ch 75 was distinguished with the following observations at page 154:
'I would distinguish that case from the present because here there is much more in the recitals expressed in similar form in the Wills of the testator and his first wife, and those recitals show a very definite bargain that whoever died first certain consequences were to follow. It is to those consequences that it is suggested effect must be. given.'
23. The learned Judge ultimately took the view that the arrangement in that case was one which is binding in equity upon the wife's moiety having regard to the form and the clauses in the Will.
24. From the above discussion of the relevant cases, it will be clear that under the English law in order to render mutual Wills irrevocable, both. the conditions must be concurrently satisfied; (a) the surviving testator must have received benefits from the deceased under the mutual Will and (b) the mutual wills should have been executed in pursuance of an agreement that the testators shall not revoke the mutual wills. Such an agreement not to revoke the wills may either appear from the Wills themselves or may be proved outside the Wills. Vide 39 Halsbury 3rd Edn. by Lord Simonds page 553, para 1289 and 1914 P. 192.
25. The law relating to joint Wills under the American Law is discussed in Volume 97 Corpus Juris Secundum pages 282 to 313 and American Jurisprudence, Vol. 57,. Sections 710, 713 and 717. In America also the limited jurisdiction of the court issuing the Probate in contrast to the general jurisdiction exercised by the court under the normal procedure when the beneficiaries under the earlier Will commence an action is emphasised. At page 311 of Vol. 97 Corpus Juris the law in America is stated as follows: 'A court of Probate cannot admit a mutual Will to probate where it has been revoked by the testator, and cannot enforce an agreement to make mutual Wills by ordering probate of a Will which was revoked in breach of such agreement. However, it is well settled that, where the revocation was wrongful and unauthorised, and the testator' had devised or bequeathed his property in a manner other than that contemplated by the agreement 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 testator, which in a fruition of a contract between the testators, cannot be revoked to the detriment of the third persons, by the survivor after the death of the other testator and the acceptance of benefits derived from the Will of the other which conformed to the contract without committing a breach of contract, at least not from the view point of the court of equity. The surviving testator having accepted the benefits of a will jointly executed by him and another and containing reciprocal provisions cannot repudiate the contract by which the Will was made so as to affect the disposition made by the Will for the benefit of third persons upon the death of the surviving testator. The rule is that where separate Wills executed in pursuance of a valid contract between the parties, provide for a life estate to the survivor, with certain remainders over the survivor, haying probated the Will of the deceased testator and accepted the benefits thereunder, cannot abrogate or repudiate the contract to the injury of the remainderman by revoking his own Will.'
27. Again, in Section 717, volume 57, the law relating to the right of third parties for whom provisions have been made under the mutual Wills and to take effect upon the death of the surviving testator is set out as follows:
'The rule is that when two persons have entered into an agreement supported by a good consideration to make, and have actually made Wills with mutual and reciprocal provisions by which each testator has bequeathed his estate to the survivor, and the survivor has taken and accepted the benefit of such mutual agreement and the Wills of the other party executed pursuant thereto, Equity will take such action as may be necessary to give effect to the further provisions of the agreement that the property of the survivor should be bequeathed to a third person designated by the agreement. The fact of controlling importance is this situation in the acceptance of the benefits of the agreement and of Wills drawn pursuant thereto. Equity acts in order to prevent the perpetration of fraud which would result from a breach of the agreement.'
28. The right of third parties and the trusts arising by reason of the bequests for third parties effective upon the death of the surviving testator is declared and enforced not only as against the properties in the hands of the surviving testator who has violated 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 same in her own right as an heir to the deceased husband, i.e., she got the husband's property de hors and independent of the Will.
The judgment of Sir Arnold White C. J. suggests that the learned Judge has rested his judgment solely on the ground of the survivor not deriving any benefit of the properties of the predeceased under the joint Will. But the other learned Judge, Krishnaswami Iyer, J. appears to have been of the view that in order to make the Will irrevocable both the conditions must be satisfied: (a) there should be an arrangement between the persons who made the joint Wills and that each should stand by the other and (b) the person attempting to revoke the Will should have received the benefit under the Will of the other.
30. The next case is the judgment of the' Supreme Court in : AIR1959SC71 . In that case, three persons by name Kunhan Kaimal, Kesavan Ammal and Thayi Ammal executed a Will and after the death of the other two, Kesayan Ammal executed a Will by which he made an entirely different distribution of the property. It was contended that the earlier Will in question was a joint mutual Will and therefore the third surviving testator had no authority to execute a new Will but it was held that the Will in question was only a joint Will and not a mutual Will. If the statement of the law in the judgment of the Supreme Court is to be regarded as complete it would appear that the Supreme Court did not think it necessary that in order to make the mutual Will revocable both the conditions (a)'. benefit and (b) agreement not to revoke except with the mutual consent, should be concurrently satisfied in every case. In other words, that it is enough for a mutual Will to be irrevocable if' the surviving testator receives the benefit of the property of the deceased under the mutual Will.
31. The latest case is a Bench decision of the Allahabad High Court in Bhavani Prasad v. Surendra Bala, : AIR1960All126 . There is a full discussion of the general principles as well as of judicial decisions regarding joint and mutual Wills. The learned Judges have taken the view that in order to make the joint mutual Will irrevocable by the survivor both the conditions must be concurrently satisfied. In taking this view the Judges have mainly rested their judgment upon the decision of the Privy Council in 1928 AC 391. As regards the Dufour's case, (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 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.
33. The document, Ex. A.I, clearly presupposes the union of minds of the two brothers and a mutual exchange of ideas between them. At the outset it must be noticed that the Will deals with the testator's ancestral properties as well as their self-acquired properties. The main scheme of the arrangement as envisaged under the Will is that all their properties without any distinction are pooled together and dealt with as one integral whole, each relinquishing his own separate rights thereunder (including the right of survivorship) with the idea that they should enjoy the same till his lifetime. On the death of one of the brothers, his widow can take only the particular property which has been set apart for her maintenance and she cannot claim any share in her husband's properties either under the Hindu Women's Right to Property Act in regard to joint family properties or as a heir tinder the Hindu Law in. regard to the self-acquired properties. The surviving brother is entitled to take all the properties except to the extent of the provision for maintenance in favour of the widow as aforesaid 'Besides these, there are other provisions containing bequests in favour of the nephews of the obstators for performance of their obsequies and funeral ceremonies as well as for the performance of certain religious and charitable trusts in all of which the testators (as they themselves unambiguously declared in the Will) were jointly interested to make a provision of that kind.
34. We are clearly of the opinion that Ex. A-I rests upon a bilateral agreement entered into between the brothers founded upon by mutual consideration and mutual trust and confidence. It is impossible to effectuate and carry out their scheme if after the death of one, the survivor were to possess an unilateral and unqualified power to revoke or cancel or modify that arrangement. Such a power, if upheld, would completely 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 language in the Will is very clear, explicit and unambiguous, we ought not to construe the document as reserving such power which would result in such unjust results.
36. Mr. Mohan Kumaramangalam for the respondent placed considerable reliance upon the decision in : AIR1960All126 , in which clause 4 of the Will of a husband and wife provided 'that nobody except us, the executants, shall have any right to amend or cancel the Will.' In that case, the learned Judges held that it was open to the survivor to amend or cancel the will and that the clause in the Will did not mean that amendment or cancellation can only be a joint amendment or cancellation by both the executants. After giving our careful consideration to this argument, we are unable to accept the same as the scheme and provisions of the Will in the Allahabad case are different from the instant case.
In the Allahabad case the learned Judges rested their judgment on the ground that in that case the Will in question did not indicate that there was any reciprocity or any sort of prearrangement between the joint executants of the Will when they executed the same and that there was nothing to show that the joint executants had agreed to treat the property of each as joint: property belonging to. both when they executed the Will. But in the instant case the several clauses in the Will contain abundant intrinsic evidence that the Will itself was the result of a mutual reciprocal arrangement.
This significant recital in the Will that it was executed with a view to prevent and avoid after their death any future dispute or controversy in regard to 'our properties' and the provision that on the birth of any issue, male or female to either of the testators, the Will shall cease to have effect, afford clinching and decisive proof of such reciprocal arrangement. We have no hesitation in saying that it constitutes very strong and powerful evidence of a reciprocal arrangement. Again as mentioned already, the main scheme in the Will is to treat the entire properties as one integral whole belonging to both in which the right of survivorship is given up.
In view of these two conditions which are absent in the Allahabad case, the reasoning in the Allahabad case will not apply. In our opinion, the provision that on the birth of a Santhathi male or female, to either of the testators, the Will shall not take effect, 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, Chinnapparaja's self-acquired properties would have been taken by his widow and to the extent to which she has been disinherited or totally excluded, there is a clear benefit accruing to Perumalraja.
Even with regard to the joint family properties, the widow would be entitled to her husband's share under the Hindu Women's Right to Property Act, which right again has been, taken away by the Will. The right of sole enjoyment of all the properties is accruing to Perumalraja in total negation of the rights of the widow. In this view, it must be held that her brothers must be deemed to have relinquished their rights of survivorship. The law on this point is fairly clear. In In re, Wilford's Estate; Taylor v. Taylor, (1879) 11 Ch 267, certain leasehold property was given by Will to two sisters as joint tenants and they actually agreed to bequeath it in trust for each other for life and for their nieces after the death of the survivor. One sister having died the survivor made a Will giving the property in a different manner. It was held that the agreement between the two sisters carried out by the making of the Wills, served the joint tenancy. At page 269, Hall, Lord Vice-Chancellor observed as follows:
'I am of opinion that there was a severance of the joint tenancy in this property by the transaction which H. J. Wilford carried out with her sister in 1872. The case is a peculiar one, no case that I am aware of haying occurred before, in which the question has arisen from a transaction like this. The joint tenants agreed to make mutual Wills. The agreement which was a dealing by each of the sisters with her moiety of the joint property is proved by Mr. Taylor's evidence. It was acted upon by both sisters, their Wills being made in accordance with it, and it effected, in my opinion, a severance of the joint tenancy. It would be a monstrous thing to hold after the agreement had been so far perfected, that after the death of one sister the other could claim the joint property as belonging absolutely to her as survivor.'
38. This clear statement has been followed in 1914 P. 192, the case already referred to. In that case also it was held that as a result of the husband and the wife, who are joint tenants of leasehold properties executing mutual Wills, the joint tenancy as between them was severed in the properties in question. Vide Williams 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 ho 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. Mohan Kumaramangalam, that the document, Ex. A.I, is a will both in its form and in its operative character, and that as the two brothers were members of a joint family, the Will is invalid and becomes useless on the death of Chinnappa. He relied upon the decision of our High Court in Vitla Butten v. Yamenamma, 8 MHCR 6, and later cases contending that the title by survivorship being the prior title takes precedence to the exclusion of that by device. For the reasons already mentioned above there is no substance in this contention. It is now fairly well settled that under Hindu law, it is not: competent to a member of a joint family to execute a Will in regard to his share in the joint family properties, but if all the coparceners of a joint family agree and consent a Will so executed can be given effect to as a family settlement. Learned counsel did not dispute this proposition but contended that they are all cases in which the family settlement took immediate effect and was acted upon for a considerable period of time and that in this case the document did not and was not intended to take effect during the lifetime of the brothers and the document was not acted upon by the brothers but that on the other hand, the surviving brother cancelled the same and executed a different document.
This argument in the first place overlooks that on the death of one brother there are several provisions in the Will which are to take effect even during the lifetime of the survivor. It is no doubt true that in the first case, Brijraj Singh v. Sheodan Singh, ILR 35 All 337 a decision of the Privy Council, the document which was styled as a Will was given effect to even during the lifetime and was acted upon for over fifteen years and the Privy Council adverted to this aspect of the matter in their judgment.
But in the latter case decision of the Privy Council in Lakhmi Chand v. Mt. Anandi, ILR 48 AII 313 : AIR 1926 PC 54, a document which was styled as a Will and executed by two brothers of a joint family was given effect to as a family settlement even though the document was not given effect to by the brothers and the dispute arose immediately after the death of one of the brothers. Their Lordships upheld the mutual arrangement as evidence of a family arrangement between the brothers on the ground that each party gave up the possibility of his surviving his brother in consideration 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. Ranganayaki Ammal : AIR1936Mad967 a Bench of the Madras High Court held that a Will executed by a brother with the consent of his other brother though invalid as a Will was nevertheless valid as family arrangement as it was made with the consent of the sole remaining coparcener. The learned Judge emphasised that in order to make the Will valid as a family settlement the vital requisite is the consent of all the coparceners and not revoked before death should be enforceable as a family settlement or arrangement. Vide Statement of the Law in Mayne, page 882.
43. In this connection it may be also noticed that even in the English case in 1951 Ch 148 the learned Judge observed that the first Will must take effect not as a Will but as evidence of a trust which is plainly to be discerned in the two Wills. We are of the opinion that the ends of justice clearly require that the document, Ex. A.I should be upheld and given effect to as a bona fide family arrangement.
44. Therefore on a consideration of the entire facts and a clear interpretation of the terms of Ex. A.I we are of opinion that it is binding upon both the brothers and that it is not competent to the surviving brother, Perumal, to revoke Ex. A.I under later Will Ex. B.I.
45. In the result, we reverse the judgment of Basheer Ahmed Sayeed, J. and decree both the suits as prayed for. The enquiry into mesne profits shall proceed. The parties in both the appeals will bear their own costs throughout.
46. I am fully in agreement with the conclusions of my learned brother expressed in his judgment, of which I have had the advantage of perusal. If I am adding a few observations of my own, it is not because I think that there is really any difficulty upon the facts of the present case, or the interpretation of the terms of Ex. A.I in the setting in which it came to be executed by the two brothers. Judged by every test, as my learned brother has shown, the Will is a mutual and reciprocal one, and having obtained benefits under such a Will executed with a patent stipulation that it could only be revoked or altered during the lives of both testators (that being the fair and obvious interpretation of the Tamil text, in the light of the probabilities,) the testator who survived Perumal Raja, could not validly revoke or alter the dispositions, under his later Will, Ex. B.1.
Alternatively 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 have been increasingly reluctant to diminish or whittle down the right of a surviving testator to revoke the earlier dispositions, to deal again with the estate as he liked? For instance, 1925 Ch 75 would appear, at the first flush, to be a case in which the canon applied by Lord Camden to the facts in (1769) 21 ER 332 would have led to the same conclusion of an irrevocable mutual testament. Each was both testator and legatee, and the wife, who survived, did take the estate of the husband under the Will. Equally in 1928 AC 391, the situation was' similar. The Courts distinguished Dufour's case, (1769) 21 ER 332 and held against mutuality in these cases, because 'an agreement to constitute equitable interests' to use the language of Lord Haldane in Gray's case, 1928 AC 391 could not be spelt out from the facts, at the time that the testament averred to be mutual, came to be executed. But is not the very fact that both testators came together to make such a joint Will of dispositions of both estates after their respective lives, evidence of an intention to create an unequivocal trust?
Here I desire to emphasise that the refinement with regard to the jurisdiction of the particular Court, set forth at length in 1914 P. 192, does not affect the central issue. The perspective of a Probate Court may be different, and its task far more limited. But, sooner, or later, if a trust exists, it will have to be effectuated, and this implies that the later Will admitted to probate, cannot prevail. Indeed, in 1905 P. 194, the matter has been put in the form, not with the bequest under the subsequent Will is invalid, but that the legatee takes the estate burdened with the trust: 'his personal representative takes the property upon trust to perform the contract.'
49. Obviously, there is another refinement. The powers of the surviving testator may be looked at from two angles. There is his power to alter the earlier mutual Will, contingent upon the existence of the two vital factors; firstly, an express or implied agreement of irrevocability, unless by both during their lives, or by one after notice to the other, similarly; secondly, the fact of benefit taken by the survivor. But there is the more restricted power of the survivor to deal with his own estate, if it is capable of being separately dealt with. But even here, if the two tests are satisfied, the rule 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 regards the other party. Such terms would, by themselves, constitute powerful evidence of a mutual agreement not to revoke, except by both together. Hence, I do not think that this decision implies that the element of irrevocability may be dispensed with, as a test. : AIR1960All126 has been cited by us, as regards the exposition of legal principles; upon the facts, it is distinguishable from the present case, in vital respects.