Madras High Court

J.Velu vs Saroja on 18 April, 2022

                                                                                 S.A. No.144 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 18.04.2022

                                                        CORAM:
                                   THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
                                                 S.A. No.144 of 2022
                                             and C.M.P. No.2914 of 2022


                  J.Velu                                                             .. Appellant
                                                            Vs.

                  1. Saroja
                  2. Uma @ Unnamalai
                  3. Sivakumar
                  4. Selvaraj                                                     .. Respondents

                            Second Appeal is filed under Section 100 of Civil Procedure Code,

                  1908, as against the judgment and decree dated 27.01.2020 passed in A.S.

                  No.4 of 2019 on the file of the Principal District Judge, Thiruvannamalai

                  confirming the judgment and decree dated 31.01.2018 passed in O.S. No.96

                  of 2008 on the file of the Additional Subordinate Judge, Tiruvannamalai.



                                    For Appellant           : Mr. N.Palani
                                    For Respondents 2-4     : Mr. K.Venkata Subban
                                                             for M/s. Sarvabhauman Associates




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                                                                                      S.A. No.144 of 2022

                                                    JUDGMENT

The unsuccessful plaintiff in the suit in O.S. No.96 of 2008 on the file

of Additional Sub Court, Tiruvannamalai, is the appellant in the above

second appeal. The appellant filed the suit in O.S. No.96 of 2008 for specific

performance of an agreement of sale stated to have been executed on

02.05.2008 and to direct the defendants 1 and 2 to executed the sale deed

relating to the suit mentioned property in favour of plaintiff upon receipt of

for a sum of Rs.2,00,000/- towards balance consideration and for other

consequential reliefs.

2. The suit property is described as an extent of 1.00 acre out of total

extent of 1.62.0 hectare in Survey No.56/182 in Kosalai Village,

Tiruvannamalai Taluk, Tiruvannamalai District.

3. The case of the appellant in the plaint that the suit property and

other properties were originally belonged to one Thangavel Udaiyar who is

father of defendants 1 and 2 and grandfather of defendants 3 and 4, and his

close friend one Angappan @ Govindasamy by virtue of a registered sale

deed dated 10.02.1947. It is further stated that they jointly enjoyed the suit

property and other properties as co-owners. It is contended by the appellant

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that Thangavel Udaiyar purchased other half share of Angappan in the name

of his wife for a sum of Rs.500/- and that Thangavel Udaiyar became the

absolute owner of the property. It is admitted that Thangavel Udaiyar was

enjoying the suit properties as absolute owner and developed the suit

property along with his other lands as house plots. It is stated that the

contention of defendants 3 and 4 that the said Thangavel Udaiyar and his

wife Rajambal executed a mutual Will dated 17.08.1988 in favour of

defendants 3 and 4 is specifically denied. The appellant questioned the

genuineness of the Will stated to have been executed on 17.08.1988 by

Thangavel Udaiyar and his wife Rajambal. It is the specific case of the

plaintiff that after the execution of Will, he purchased three house plots from

Thangavel Udaiyar on 02.05.2008 for a consideration of Rs.1,86,300/- and

that on 02.05.2008, Thangavel Udaiyar he agreed to sell the suit property to

the plaintiff to a sum of Rs.3,00,000/-. At the time of execution of sale

agreement, it is contended that the plaintiff paid a sum of Rs.1,00,000/- as

advance and that it was agreed that the balance of Rs.2,00,000/- should be

paid before 01.08.2008. It is further stated that the plaintiff was always ready

and willing to perform his part of contract. It is admitted that Thangavel

Udaiyar died on 30.06.2008 in his own home under suspicious

circumstances and that defendants 3 and 4 have created a Will without the https://www.mhc.tn.gov.in/judis

S.A. No.144 of 2022

signature of Thiru. Thangavel Udaiyar.

4. The suit was contested by the third defendant mainly on the ground

that the Will executed by Thangavel Udaiyar and his wife is a mutual and

irrevocable Will. After framing necessary issues, the trial Court partly

decreed the suit by directing the defendants to refund the advance sale

consideration of Rs.1,00,000/- to the plaintiff with interest @ 6% per annum.

Aggrieved by the findings of the trial Court, the plaintiff preferred an appeal

in A.S. No.4 of 2019 before Principal District Court, Tiruvannamalai. The

lower appellate Court, after holding that Thangavel Udaiyar has no right to

enter into sale agreement with plaintiff by revoking the mutual Will,

confirmed the findings of the trial Court.

5. Aggrieved by the concurrent findings of the Courts below, the

above second appeal is preferred by the appellant by raising the following

substantial questions of law in the memorandum of grounds of appeal:

“i) Whether Thangavel Udaiyar has got right to revoke the mutual Will dated 17.08.1988 in respect of his wife Rajambal Ammal's property ?

ii) Whether Thangavel Udaiyar has got right to enter into sale agreement with the appellant ?

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iii) Whether the alleged Will is true and genuine and whether the respondents proved the Will ?

iv) Whether the sale agreement entered into between the appellant and Thangavel Udaiyar is true?”

6. Before the Courts below, the plaintiff raised an issue that entire suit

property belonged to Thangavel Udaiyar and his wife is only a name lender.

However, the Courts below did not accept this contention. Similarly based

on the evidence of D.W.2 and D.W.3, th Courts below have held that the

Will under Ex.B5 is proved to be genuine. If the Will stated to have been

executed by Thangavel Udaiyar and his wife is mutual, it is not revocable

and the subsequent alienations by Thangavel Udaiyar in favour of plaintiff is

not valid. It is admitted that Rajambal, the wife of Thangavel Udaiyar, is

also entitled to the property bequeathed under the Will. Both the testators

have reserved life interest in respect of the whole property and the Will is

to the effect that the legal heirs will take the property after the lifetime of

both testators. Since Thangavel Udaiyar has no right to own the property of

his wife before her death, the Courts below have found that the Will relied

upon by Thangavel Udaiyar is a mutual Will and that the same cannot be

revoked by Thangavel Udaiyar. If the Will executed by Thangavel Udaiyar

and his wife is mutual, this Court cannot interfere with the judgment and

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decree of the Courts below. In the present case, going by the recitals of the

documents and the grounds of appeal, this Court has no difficulty in holding

that the Will is mutual. When the Will is mutual, Thangavel Udaiyar had no

right to enter into any sale agreement with the plaintiff which will have an

impact of revoking the mutual Will.

7. In the case of Dilharshankar C.Bhachech Vs. Controller of Estate

Duty Ahmedabad reported in (1986) 1 SCC 701, the Hon'ble Supreme Court

has dealt with all the issues relating to mutual Will. The relevant paragraphs

from the judgment are extracted hereunder:

“ 56. In that view of the matter we are of the opinion that this was a mutual Will. The husband Kamlashankar Gopalshankar received the benefit under the Will after the death of Mahendraba. It became irrevocable by him after her death. Therefore, he had no disposing power over the share of Mahendraba in the property. In the premises being a “settled property”, estate duty having been paid on the death of one of the parties, the accountable person was entitled to exemption under Section 29 of the Act. In the premises the High Court was not right in its conclusion.

57. The appeal is accordingly allowed and the judgment under appeal is set aside and the question is answered in the affirmative and in favour of the accountable person. The accountable person is entitled to the costs of this appeal” https://www.mhc.tn.gov.in/judis

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It is to be noted that the Hon'ble Supreme Court has considered the

legal issues in detail and held that the Will became irrevocable by one of the

testators if he received the benefit under the Will after the death of co-

testator.

8. The scope joint or mutual Will as held by the Hon'ble Supreme

Court in the above case referred to is also reiterated by a Division Bench of

this Court in the case of Hindu Community in General and Citizens of

Gobichettipalaym Senniappa Chettiar and another Vs. The Commissioner,

Hindu, Religious and Charitable Endowment, Madras and others reported in

2005 (3) CTC 181. After referring to several judgment, the Hon'ble Division

Bench of this Court has discussed the issue in detail in para 71 to 75 of the

judgment which are extracted below for convenience:

“ 71. Mr.T.R.Mani, learned Senior Counsel for the second appellant strongly relied upon the decision of this Court in in Kuppuswami case, AIR 1964 Madras 291, and submitted that it is a case of single document executed by both of them and they also used the expressions, our property’ and ‘our Will’. He also submitted that it is not a case of simultaneous Will and therefore they have no power to revoke the Will except by their mutual consent and after the survivor has received the benefits under the Will, it is not open to her to revoke the Will. Learned Senior Counsel submitted that the dicta laid down by this Court in Kuppuswami case, was quoted without disapproval by the Supreme Court in Dilharshankar case, AIR 1986 SC 1707, in paragraph-40 of its judgment and therefore he submitted that there https://www.mhc.tn.gov.in/judis

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is enough evidence in the document itself to establish the intention of the executants that they have no power to revoke the Will except by mutual consent.

72. We find that the Chancery Division in In re Oldham Hadwen v.

Myles, 1925 (1) Ch.75, has held that the instrument itself is the evidence of the agreement. We are of the view that the reading of the Will dated 27.9.1968 shows that it was executed on the basis of bilateral agreement entered into between Palaniappa Chettiar and Rangammal and they used the expression, Cam (unanimously) which means that there was an unanimous agreement to make the Will and they had mutually agreed to the terms of the Will. They had mutual and reciprocal consideration in the sense that one being testator and another being legatee of each other and the Will was made on the basis of mutual trust and mutual confidence. They. throughout in the Will, used the expression, our property. It is stated that to carry out the scheme of specified objects of the trust, the income from our property' should be used and it is clear that the specified objects of the trust could not be accomplished if the survivor, after taking the benefit does any act unilaterally which would defeat the mutual agreement entered into between the parties at the time of execution of the Will. We are of the view. if such an absolute power of revocation is given to the survivor, it would really defeat the mutual agreement for making the Will and it would also render impossible the accomplishment of objects of the trust. There is nothing in the Will to show that the survivor should have the power to cancel the Will after receiving the benefits. On the other hand, there is intrinsic evidence in the Will to show that the Will is irrevocable after the lifetime of one of them as the other has taken benefits under the Will and the power of revocation is taken away after the lifetime of one of them who made the Will as the survivor has received the benefits. The reading of the Will clearly shows that both Palaniappa Chettiar and Rangammal mutually agreed that their properties should be pooled together and enjoyed in a particular manner https://www.mhc.tn.gov.in/judis

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during their joint lifetime and after the lifetime of one of them, the other has the restrictive power of enjoyment and after the lifetime of both, their properties should go to the specified objects of the trust.

73. It is also relevant to notice the observations of this Court in Kuppuswami case, AIR 1964 Mad 291, by Ramamurti, J. in paragraph-32 of that judgment, which we have referred to in the earlier part of this judgment in para-37, was dissented by the Gujarat High Court in C.E.D. v. Dilharshanker C. Bhachech, 102 ITR 56. However, the Supreme Court in Dilharshankar v. Controller of E.D., Ahmedabad, AIR 1986 S.C.1707, reversed the judgment of the Gujarat High Court which implies that the evidence of such an agreement can be found in the Will itself.

74. Learned Senior Counsel appearing for various respondents submitted that in Dilharshankar v. Controller of E.D., Ahmedabad, AIR 1986 SC 1707, the Supreme Court has held that it was a mutual Will, because the property was intended to be kept in tact for the enjoyment of the ultimate legatees and during the lifetime of either of the testators the property would not in any way be parted with or diminished. Learned Senior Counsel also referred to paras-49, 51 and 54 of the said judgement. Learned Senior Counsel submitted that on the facts of the case, Rangammal is given the power of enjoyment and therefore the Will cannot be regarded as a mutual Will. We have already held that the power of enjoyment of properties by Rangammal is a limited one and she has to hold the properties in trust and intact for the specified objects of the trust. We also hold that on proper construction of the Will, she has the right of enjoyment of income from the properties and her right of enjoyment should not be done in such a manner to defeat altogether the objects of the trust and her right of enjoyment is not an unqualified one, but it is a qualified one. It is, in this sense, their properties were intended to be kept in tact for charities.

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75. In our view, it is not necessary to go into the question that because it is a single Will jointly made, it should be construed as a mutual Will. The fact that both Palaniappa Chettiar and Rangammal joined together to make disposition in favour of charities is evidenced by their joining together in the execution of the document. They have also agreed that the joint disposition should not be revoked by the survivor and further the Will stipulates that only during their joint lifetime, both the testator and the testatrix have the power to modify or revoke the Will. It is clear that if one of them wants to revoke the Will, it must be done during their joint lifetime, but after the lifetime of anyone and after receiving the benefits under the Will, the Will becomes irrevocable. We are of the view that the clause in the Will which has been strongly relied upon by Mr.S.V.Jayaraman, learned Senior Counsel for the respondents 4 and 5 that one of the testators has the power to revoke the Will should be read to mean that the executants has the power to revoke the Will during their joint life time and it does not mean that the survivor has the power to revoke the Will after the lifetime of other. We are therefore of the view that both the conditions to make the Will a mutual Will are satisfied in the present case.”

9. In the present case, it is not in dispute that the property covered

under the Will belonged to Thangavel Udaiyar and his wife. However, both

of them have executed the Will preserving their life interest. It is pertinent to

mention that Thangavel Udaiyar who had no right over the properties of her

wife after her lifetime was given life interest by his wife. Similarly, the

testator's wife also was given life interest in respect of the property of her

husband. Hence, both Thangavel Udaiyar and his wife are also the

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beneficiaries under the Will to exercise their right of ownership over the

properties till their lifetime and the Courts below are right in holding that the

Will is mutual.