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Panakkal Iyyappan and anr. Vs. Elachar Chakkunnt - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in41Ind.Cas.556
AppellantPanakkal Iyyappan and anr.
RespondentElachar Chakkunnt
Cases ReferredWorsley v. Society
Excerpt:
.....testator, chakkunni, was a resident in the state of cochin, but he owned, besides a good deal of property in cochin, four items of property in ponnani taluq in british india. it is pointed out that he was not a man careless in such matters, and that as shown in exhibit x, he clearly realised the necessity of making any revocation unequivocal and beyond doubt. 10. i am not satisfied that any intention to revoke exhibit x is to be inferred from exhibit a. rosario has pressed on us so clearly. the general rule of law is well understood that every endeavour should be made 'to preserve either wholly or in part the contents of the prior document. if this is so, it is impossible to see how the fact that the tesator knew well enough to expressly revoke previous testaments can affect the..........natural distinction which was probably present in the mind of the testator between his british and cochin properties. the former were completely disposed of by exhibit x, which was registered for the purpose at ponnani registration office. all the others were registered in cochin. it is strongly argued by mr. rosario that the testator regarded the disposition of his british properties as settled by exhibit x, had no intention of altering such disposition and executed exhibit a without reference to these british properties. it is pointed out that he was not a man careless in such matters, and that as shown in exhibit x, he clearly realised the necessity of making any revocation unequivocal and beyond doubt. as regards the other two wills prior in date to exhibit a, he has taken pains to.....
Judgment:

Abdur Rahim, J.

1. The decisive question in these appeals is whether the Will Exhibit X of one Chakkunni, dated the 18th December 1905, is revoked by a later Will of his, Exhibit A, dated the 24th September 1907. He also executed another Will Exhibit H between these two dates, i. e., on the 26th November 1936. I have used the Exhibit marks in the appeal against order The testator resided in the State of Cochin and had properties not only there but also some in British India. The latter properties he devised to his wife Elachar by Exhibit X, the earliest Will, by the next Will Exhibit H, he devised to her 38 items of property for her maintenance and by the last Will Exhibit A he gave all the rights which I have in the moveable and immoveable properties which I own this day and in those which I may acquire in future, inclusive of the right of succession similar to that which I have, and the freed Dm to buy and to alienate will pass to the children of my younger brother's daughter Panakkal Iyyakku's wife Ittyenam, viz., (1935) P.D 66. Iyyappan, and (2) Chakkunni who are minors.' Then he proceeds to provide for the management of the properties by his wife Elachar during the minority of the two devisees, expressly maintains the dispositions made by him under Exhibit H and makes certain specific bequests. Then he winds up by saying: 'All the moveable and immoveable properties which are found left by me after my lifetime, with the exception of those properties which are specified in this Will to be given to particular persons and the keys of the rooms, compartments and almirahs, etc., should be kept in your possession and when Iyyappan (the elder of the two minor residuary legatees) is 16 years of age you should surrender them to him.'

2. The testator was a Christian and the Succassion Act applies. Section 57 of that Act compendiously lays down the law as to how a Will can be revoked. This is not a case of express but of implied revocation and the question is one of construction, as pointed out in Tewnsend v. Moore (1935) P.S 66 . cited by Mr. Rosario, who contended that there has been no revocation of Exhibit X by Exhibit A. The principle to be applied in such cases is set out in a passage from Williams on Executors quoted by the Appeal Court at the same page and adopted by it as enunciating' the correct law: 'The mere fact of making a subsequent testamentary paper does not work a total revocation of a prior one, unless the latter expressly, or in effect, revoke the former, or the two be incapable of standing together; for though it be a maxim, as Swinburne says above, that no man can die with two testaments, yet any number of instruments, whatever be their relative date, or in whatever form they may be (so as they be all clearly testamentary), may be admitted to Probate as together containing the last Will of the deceased. And if a subsequent testamentary paper be partially inconsistent with one of an earlier date, then such latter instrument will revoke the former as to those parts only where they are inconsistent.' Mr. Rosario has especially relied upon a passage in the judgment of Vaughan Williams, L. J., at page 81 but the passage lays down nothing different, only it makes clear two things, that the question is entirely one of construction and if the words used are capable of being so read as to enable the two documents to be both admitted to Probate, that is the construction which should be adopted. Townsend v. Moore (1) was a case of two contemporaneous Wills, but I agree that every reasonable attempt should be made to reconcile two Wills whether executed on the same date or on consecutive dates though in the former class of cases the Court will naturally feel itself to be under a greater necessity for reconciling the two documents, as otherwise neither of them would be admitted to Probate and the testamentary intentions of the testator would be entirely defeated. In any case the words of the testator must be capable of yielding to a construction which will make the two Wills stand together, and not that we are at liberty to secure that result by reading in important operative words which are not to be found in the later document in order to save the earlier disposition. And that is what we shall have to do in this case if we were to accept the contention on behalf of Blachar. The intention of the testator must be sought in the language which he has used and is not to be made the subject of mere speculation. By his last Will the testator disposes of all the properties moveable and immoveable, which he owned on the day of its execution in favour of the two minor male relations of his, except those that he specifically gives to others; if effect is to be given to his words at all, the properties comprised in Exhibit X, which are not expressly excepted from their operation like those dealt with by Exhibit H, passed like the rest of his estate to the two boys. If authority was needed for the proposition that a second Will disposing of the whole estate revokes a former disposition, I would refer to the case of Henfrey v. Henfrey 59 R. R. 331. mentioned in Townsend v. Moore (1). It may be pointed out that not only is it the law that until the testator's death the properties comprised in his earlier Will, Exhibit X, were still his to dispose of, but he was fully conscious of this for he expressly provides in Exhibit X itself that they were to vest in her only on his death.

3. Mr. Rosario, however, argues that since the properties disposed of by Exhibit X were situate in British India and those were all the properties he had there, therefore, we should infer that when afterwards by Exhibit A he disposed of all hislproperties, he(sic)meant only those that were situate in Cochin. That is only possible if we were to add the words situate in Cochin' or some words of similar effect and this in my opinion is not open to us to do. He also points out in support of his contention that in Exhibit X the testator says: 'But even I should alter this Will by registered instrument' and though the subsequent Will Exhibit A was in fact registered, it was registered in Cochin and not in British India. Here again he wants us to modify what the testator actually says in Exhibit X. It is also said that another Will, which the testator had executed in 1901, was revoked by a registered karar executed on the same day as Exhibit A, but as pointed out by the District Judge there was no reason why Exhibit X should have been mentioned in that karar. Mr. Rosario in fact builds his entire argument on the hypothesis that as the testator lived in amity with his wife till his death, there was no reason why he should deprive her of what he had given her by the Will of 1905 (Exhibit X). But this overlooks the fact that subsequently in 1906 (Exhibit H) he has given her 38 items of property for maintenance and this latter disposition he expressly upholds in his last Will. The District Judge was, therefore, in my opinion entirely right in holding in his judgment in the second appeal that the Will of 1905 was revoked by that of 1907.

4. In dealing, however, with the petition for revocation of the Letters of Administration with the Will, Exhibit X, annexed to Elachar the learned District Judge has clearly gone wrong. That Will having been revoked, the Letters of Administration obtained on the allegation---untrue in fact though made in good faith---that it was the last Will and testament of the deceased must be revoked under Section 234 of the Succession Act. I can find nothing in any circumstances that are mentioned in the District Judge's judgment which would justify our refusing to act under that section. I would, therefore, direct that the grant of Letters of Administration with the Will, dated 18th December 1905, annexed to Elachar be annulled.

5. My learned brother is of opinion that the Will of 1905 was not revoked by the Will of 1907, but he agrees that in the view that if the former Will was revoked, the Letters of Administration granted to Elachar should also be revoked.

Ayling, J.

6. This appeal turns entirely on the question of whether the registered Will, Exhibit X, executed by Chakkunni on 18th December 1905 was revoked by another registered Will, Exhibit A, executed by him on 24th September 1907. The revocation is not express, and Exhibit X is not referred to in Exhibit A: but inasmuch as Exhibit A purports to dispose of all the rights which I (testator) have in the moveable and immoveable properties which I own this day,' it is argued that this covers the four items of property bequeathed by Exhibit X, and that it operates as an implied revocation of the latter.

7. On the other hand Mr. Rosario has drawn oar attention to various circumstances tending to show that the testator at the time of executing Exhibit A did not intend to revoke Exhibit X. He argues that (as it is expressed in Halsbury's Laws of England, Vol. 28, p. 564) 'an intention to revoke must be as dear and free from doubt as the original intention to bequeath and must be shown with reasonable certainty.'

8. The testator, Chakkunni, was a resident in the State of Cochin, but he owned, besides a good deal of property in Cochin, four items of property in Ponnani Taluq in British India. He appears to have executed four Wills, all registered:

(1) A Will executed in 1901 bequeathing certain property in Cochin to his niece, Mathiri.

(2) Exhibit X executed in 1905 bequeathing all his property in Ponnani (and nothing else) to his wife Elachar.

(3) A Will, Exhibit H, dated 26th November 1906, bequeathing 38 items of landed property in Cochin to Elachar for her maintenance during her life.

(4) His last Will, Exhibit A, making certain additional bequest to Elachar and others and bequeathing the rest of his property to his niece's children.

9. Now it is to be noticed that there is a natural distinction which was probably present in the mind of the testator between his British and Cochin properties. The former were completely disposed of by Exhibit X, which was registered for the purpose at Ponnani Registration Office. All the others were registered in Cochin. It is strongly argued by Mr. Rosario that the testator regarded the disposition of his British properties as settled by Exhibit X, had no intention of altering such disposition and executed Exhibit A without reference to these British properties. It is pointed out that he was not a man careless in such matters, and that as shown in Exhibit X, he clearly realised the necessity of making any revocation unequivocal and beyond doubt. As regards the other two Wills prior in date to Exhibit A, he has taken pains to do so. The Will of 1901 was expressly revoked by a karar executed on the same day as Exhibit A: and Exhibit H is specifically referred to in Exhibit A so as to show that its dispositions were not affected. Why then was the fate of Exhibit X left in doubt? It seems to me that it was probably for the simple reason that the testator had only his Cochin properties in mind and had no idea of affecting by Exhibit A the previous disposition of his properties in British India. No motive is suggested to account for his depriving his wife of the benefit which she was to derive under Exhibit X.

10. I am not satisfied that any intention to revoke Exhibit X is to be inferred from Exhibit A.

11. I would, therefore, dismiss with costs Appeal against Order No. 333 of 1914.

12. Br the Court.---Under Section 98 of the Civil Procedure Code we refer the question whether the Will Exhibit X of 1905 was revoked by Exhibit A the Will of 1907 to a Full Bench. The learned Vakils for both the parties agree that the decision of Second Appeal No. 124 of 1912 will depend on the answer to this question.

13. This appeal coming on for hearing on the 10th and 11th August 1916, on the question referred for the decision of the Full Bench, upon perusing the order of reference and upon hearing the arguments on both sides, the case having stood over for consideration till this day, the Court expressed the following

OPINION.

Oldfield, J.

14. I agree with the judgment, which Seshagiri Aiyar, J., is about to deliver, and will observe only that the case has really to be decided almost entirely on the law generally applicable to the construction of documents, recourse to the decisions relating to the construction of Wills being unnecessary except on one point.

15. On that point both the learned Judges, before whom the case first came, were agreed that 'an intention to revoke an earlier Will by a later must be as clear and free from doubt as the original intention to bequeath and must be shown with reasonable certainty.' We have then the testator's bequest of all his property in Exhibit A, twice unambiguously expressed. It is then in my opinion unnecessary to go further than Chapter VI of the Indian Evidence Act in order to justify the conclusion in favour of an intention to revoke the earlier Will, which disposed of some only of the testator's property, and the refusal to consider the collateral circumstances, which Mr. Rosario has pressed on us so clearly.

16. I concur in answering the question in the affirmative.

Sadasiva Aiyar, J.

17. I agree and have nothing to add.

Seshagiri Aiyar, J.

18. The testator, in this case, executed three successive Wills. He had properties both in the Native State of Cochin and in South Malabar. The first was in 1901. The second in 1905 (Exhibit X). The third in 1906 (Exhibit H) and his last Will and testament (Exhibit A) in 1907. The second Will dealt, admittedly, only with the testator's property in British India. The third Will dealt with a few items of property in Cochin. The last Will, ex facie, disposes of all the properties which the testator had at the time.

19. This reference relates to the question whether Exhibit X was revoked by the last Will, Exhibit A. Prima facie, the dispositions in the earlier one are inconsistent with those of the last Will. The general Rule of law is well understood that every endeavour should be made ' to preserve either wholly or in part the contents of the prior document.' See per Lord Tabbot in Weld v. Anton (1735) 2 Eq. Cas. Abr. 717. A qualification was added to this proposition in Freeman v. Freeman (1854) Kay 479. that this attempt should not be made unless the rejection of the prior document will lead to a partial intestacy. It was further held that where the subsequent testament is styled a codicil, the intention of the testator must be taken to be that tie Will and codicil should stand together. In the goods of Howard (1869) 1 P. & D. 636. After examining these and the other authorities the law is thus stated in Jarman on Wills, Vol. I, at page 176: If the subsequent instrument does not profess to be a codicil, and is adequate to the disposition of the entire property, there is no such a priori improbability that it was intended wholly to supplant the prior instrument. The case then rests on the true construction of the contents of the two instruments, and the complete disposition contained in the second must, unless controlled by the context, wholly revoke the first.' See Henfrey v. Henfrey (2). The decision in Townsend v. Moore (1) states the law as we find it stated in Section 57 of the Indian Succession Act.

20. Now, these being the principles on which we have to act, is there anything in the present case to enable us to depart from the Rule as stated in Jarman's book? Mr. Rosario's contention' was that in construing the comprehensive phrase all my moveable and immoveable properties' in Exhibit A, we must c6nsider the circumstances under which the Will was made; and he relied on some passages (they were really quotations) in the judgment of the President of; the Probate Division in In re the Estate of Bryan (1907) P.S 125 The learned Judge quotes in that case, with approval Jennet v. Ffinch (1880) 5 P. D. 106. where it is stated the subject was fully discussed by Sir H. Jenner in Thorne v Rooke 2 Curt. 799., and he came to the conclusion that where there is something on the face of the instrument raising doubt or ambiguity as to whether it was intended by the testator to be in substitution for or addition to a previous Will, the Court is justified in having recourse to external evidence to ascertain the testator's intentions.' The President finally held that there was authority for the proposition that in cases of doubt, external evidence is admissible, but that in the case before him there was no such doubt. This Rule of construction has been accepted by the Indian Legislature (Section 94 of the Evidence Act). Reference may also be made to Raven, In re; Spencer v. National Association for Prevention of Consumption (1915) 1 Ch. 673. for the position that Courts should not enter into an enquiry regarding external circumstances to gather the intention, when the language of the document is clear. Therefore, our first duty is to see whether the language is clear and consistent and applies accurately to existing facts. Mr. Rosario conceded that if Exhibit A were the only Will ever made by the testator, there can be no contention that it is not sufficient to dispose of all the properties which the testator died possessed of. If this is so, it is impossible to see how the fact that the tesator knew well enough to expressly revoke previous testaments can affect the construction of the Will in question.

21. Another contention of Mr. Rosario was that as the testator stated that Exhibit X shall be revoked only by a registered document and as the subsequent Will was registered in Cochin territory, the properties comprised in Exhibit X were not affected by Exhibit A. The learned Vakil does not say that in order to be effectual the last Will should have been registered in South Malabar as well; but he suggested that the testator, a shrewd man of business, was, by the clause about registration, apparently under the impression that a registered Will dealing with property in British India will not be affected by a Will registered in the Native States and t ice versa. This may or may not have been the view of the testator, but it seems to me that all that the testator said was that he would take care that subsequent testaments should be registered, but not within any particular jurisdiction.

22. Another argument of the learned Vakil was that the expression all my properties1' should not apply to properties in two different jurisdictions. It is true that none of the decided cases exactly covers this case, where the first Will deals with a particular property in a particular place and the second Will in terms deals with the properties in both the places. The nearest approach to the present case is the case of In re Pereira; Worsley v. Society for Propagation of the Gospel (1912) 28 T. L. R. 479. But what difference can it mike on principle? If it is good law that an earlier Will dealing with all the properties and distributing them in a particular manner is revoked by a later Will disposing of all the properties in a different manner, it is difficult to see how the fact that the first one comprised properties less in extent than those included in the second can make any difference. It seems to me that this is an a fortiori position.

23. For the above reasons, the answer to the question must be in the affirmative.


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