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Citation Codes
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Case Number
Advocates
  • Mr. A.A Lawrence for Applt.
  • Mr. V. Thiruvenkatachari for Respts.
Judges
  • Nainar Sundaram, J.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. A.A Lawrence for Applt.
  • Mr. V. Thiruvenkatachari for Respts.
Judges
  • Nainar Sundaram, J.
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Smart Summary

Structured Summary of the Provided Opinion (Second Appeal)

Factual and Procedural Background

This Second Appeal arises from a suit for permanent injunction (O.S.N 402 of 1972) filed in the court of the Additional District Munsif, Poonamallee. The first-defendant in the original suit is the appellant in this appeal; the plaintiff is the first-respondent. The second-defendant died during the suit and the third-defendant, now the second-respondent, was added as his legal representative.

Relationship and property background (as stated in the opinion): The second-defendant was the father. One Krishnammal was his second wife. The plaintiff, the first-defendant (appellant) and the third-defendant (second-respondent) were children of the second-defendant by his first wife. The suit-property was a joint acquisition by the second-defendant and Krishnammal.

Relevant testamentary events: On 15.9.1971, by Ex. A2, there was a will executed by the second-defendant and Krishnammal under which the suit-property would go to the plaintiff for her life and thereafter to her grandchildren. Krishnammal died on 5.11.1971. On 17.3.1972, by Ex. B6 (a deed of revocation) the second-defendant revoked Ex. A2, and on the same date executed a fresh will Ex. B7 under which the first-defendant was given the suit property.

Procedural history and lower courts' findings: The plaintiff was in possession of the suit-property at the date of the suit; the defendants denied her right to possession and relied principally on Ex. B6 and Ex. B7. The first Court discredited Ex. B6 and B7 and upheld the maintainability of the suit, decreeing relief to the plaintiff. The first-defendant appealed (A.S No. 14 of 1980) to the Subordinate Judge of Tiruvellore. The lower Appellate Court upheld maintainability but ultimately rejected Ex. B7 and sustained the plaintiff's rights under Ex. A2, dismissing the first-defendant's appeal. This second Appeal challenges the judgment and decree of the lower Appellate Court.

Legal Issues Presented

  1. Whether the question of title can be said to be alien to the suit for bare injunction based on possession.
  2. Whether the Courts below properly appreciated and applied the principles governing revocation of a will to the facts of the present case.

Arguments of the Parties

Appellant's (First-Defendant's) Arguments

  • The contest was primarily founded on Ex. B6 (the deed of revocation) and Ex. B7 (the subsequent Will) — i.e., that Ex. A2 had been revoked and the fresh will vested rights in the first-defendant.
  • The defendants denied the plaintiff's right to be in possession of the suit-property.

Plaintiff's (First-Respondent's) Arguments

  • The plaintiff claimed possession of the suit-property and asserted rights under Ex. A2 (a life estate under the joint Will executed by the second-defendant and Krishnammal).
  • The plaintiff contended that Ex. B7 was not genuine.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Theobald on Wills (13th Edition), paragraph 97 (quoted in the opinion) Explains that joint wills are revocable at any time by either testator or by the survivor; a joint will is the will of each testator; survivor may be treated in equity as a trustee if there is a contract not to revoke; mere execution of a joint will does not establish a contract not to revoke. The court relied on this exposition to support the proposition that a joint will is ordinarily revocable by the survivor and that revocability cannot be displaced merely by the execution of a joint will absent an enforceable contract not to revoke.
Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sixteenth Edition of Williams...) States that a joint Will, if duly executed, is as much the Will of each testator as if separate; revocable at any time by any testator during joint lives and by the survivor after the death of one; if not altered or revoked it will take effect as the Will of the survivor. The court cited this authority to reinforce the principle that the survivor has the power to revoke a joint will and that the revocation by the survivor is legally valid in the ordinary course.
Thomas Jarman on Wills (Eighth Edition, Vol. 10) Observes that a joint Will is revocable at any time by either testator during joint lives, or by the survivor after the death of one. The court used this treatise to bolster the proposition that joint wills are revocable by the survivor in the absence of special circumstances (such as a contract making the will irrevocable).
Meenakshi Ammal v. Viswanatha Aiyar, 1910 I.L.R 33 Madias 406 (bench: Sir Arnold White C.J. and Krishnaswami Ayyar, J.) The bench countenanced the power of the survivor of the joint will to revoke it, unless the survivor had derived some benefit under the will. The court cited this case to illustrate judicial recognition that a survivor may revoke a joint will unless the survivor has taken benefits under it such that equity would prevent revocation (i.e., the mutual/will-as-contract exceptions).

Court's Reasoning and Analysis

The court proceeded in two main stages, reflecting the two substantial questions framed at admission.

1. First question — title and possession:

  • The court noted that possession was found with the plaintiff and that she could maintain protection of that possession if she could show a right to it.
  • Although Ex. A2, on its face, gave the plaintiff only a life-estate to arise after the lifetime of the second-defendant, the subsequent event of the second-defendant's death made it appropriate for the lower Appellate Court to consider maintainability; the present court held that determining whether the plaintiff's possession was lawful necessarily permits inquiry into title.
  • The court emphasized that a person given a life-estate may maintain a suit for permanent injunction to protect possession during the lifetime for which the life-estate subsists.

2. Second question — revocation of the joint will (Ex. A2) and genuineness of Ex. B7:

  • The court first addressed genuineness of Ex. B7. It observed that the author of Ex. B7 (the second-defendant) had, while alive, vouched for and affirmed the genuineness of Ex. B7 in his pleadings. Given that the second-defendant himself sustained Ex. B7 during his lifetime, the court considered further enquiry into genuineness to be futile. Consequently, the court set aside the lower courts' adverse findings on genuineness and held Ex. B7 to be genuine, valid and operative.
  • Turning to the legal principles of revocation, the court stated the general proposition: a joint will is revocable at any time by either testator during their joint lives or, after the death of one, by the survivor. The court noted the possible exception of a mutual will: to render a joint will irrevocable (on the mutual-will theory), two conditions must be satisfied — (i) the survivor must have received benefits from the deceased under the mutual will, and (ii) the mutual will must have been executed pursuant to an agreement that the joint testators would not revoke it.
  • The court examined the facts and held that the mutual-will theory did not arise on these facts: there was no finding that the survivor had received benefits under Ex. A2 or that there had been an agreement not to revoke. The court cited several treatises (Theobald; Williams/Mortimer/Sunnucks; Jarman) and the decision in Meenakshi Ammal v. Viswanatha Aiyar to expound and support the rule that the survivor can revoke a joint will unless the narrow exceptions apply.
  • Applying these principles, the court concluded that on the demise of Krishnammal her rights (if any) in the suit-property devolved intestate on her husband (the second-defendant), and the earlier Will Ex. A2 was validly revoked by the second-defendant by executing Ex. B6. The second-defendant was therefore competent to deal with the suit-property by executing the fresh will Ex. B7, which the court had already held to be genuine and operative.
  • Because Ex. A2 was superseded by Exs. B6 and B7, the plaintiff could not rely on any right under Ex. A2 to justify lawful possession. Thus the court found that the plaintiff had no right to lawful possession and must fail in her suit for injunction.

Holding and Implications

Holding: The Second Appeal is allowed; the decisions of the two Courts below are set aside; and the suit of the plaintiff stands dismissed.

Immediate implications for the parties:

  • The court held Ex. B7 to be genuine, valid and operative, and held that Ex. A2 had been validly revoked by Ex. B6. As a result, the plaintiff no longer has a lawful title-based right to possession under Ex. A2 and her suit for a permanent injunction fails.
  • The court directed that, considering the relationship between the parties, they shall bear their respective costs throughout.

Broader implications:
The opinion applies and reiterates the established principle (as cited from treatises and the cited decision) that a joint will is generally revocable by the survivor unless the narrow mutual-will exceptions (benefit received by the survivor under the will and an agreement not to revoke) are shown. The opinion does not purport to create a new legal precedent beyond applying these established principles to the facts of this case.

Source: Summary prepared strictly from the content of the provided opinion text. No information beyond that text has been added.

Show full summary ...

    P. Krishnan v. Lakshmi Ammal

    1. This Second Appeal arises out of a suit for permanent injunction in O.S.N 402 of 1972, on the file of the Additional District Munsif, Poonamallee. The first-defendant is the appellant herein. The plaintiff is the first-respondent. The second-defendant died pending the suit and the third-defendant, who is the second-respondent herein was added as the legal representative. The relationship amongst the parties runs as follows:— The second-defendant was the father: One Kishnammal was his second wife. The plaintiff, the first-defendant and the third-defendant are the children of the second-defendant through his first wife. The suit-property was a joint acquisition by the second-defendant and Krishnammal. The pleas of the defendants that the acquisition in the name of Krishnammal, was only benami for the second-defendant has been rejected by the two Courts below, as having no substance. On 15.9.1971, as per Ex A. 2, there was a will by the second-defendant and Krishnammal, as per the terms of which the suit-property should go to the plaintiff for her life and thereafter to her grand-children. Krishnammal died on 5-11-1971. On 17-3-1972, as per Ex. B. 6, the second-defendant revoked Ex. A2. On the same date, he executed a fresh will as per Ex. B7, under the terms of which the first-defendant was given the suit property. The plaintiff wanted to maintain the possession of the suit-property, which was admittedly with her on the date of the suit, though the defendants would deny the right of the plaintiff to be in possession. The first-defendant and the second-defendant raised contest mainly relying on the revocation deed Ex. B6 and the subsequent Will Ex. B7. The first Court discredited Ex B6 and B7 and upheld the maintainability of the suit for permanent injunction. As result of its findings, the first Court decreed the suit, as prayed for. The first-defendant appealed in A.S No. 14 of 1980, on the file of the Subordinate Judge of Tiruvellore. The lower Appellate Court upheld the maintainability of the suit. While doing so, it took note of the subsequent event, namely, the death of the second defendant pending the suit. The lower Appellate Court found Ex. B7 as not true, genuine and a valid document. Though in the earlier passages of its judgment, the lower Appellate Court opined that a joint will is revocable at any time by either of the testators during their joint life or after the death of one of them, by the survivor, yet ultimately it held that such revocation by the second-defendant was not permissible by executing Exs. B. 6 and B. 7. Rejecting Ex. B. 7, the lower Appellate Court countenanced the right of the plaintiff under Ex. A. 2. In this view, it dismissed the appeal of the first defendant, confirming the judgment and decree of the first Court. This second Appeal is directed against the judgment and decree of the lower Appellate Court.

    2. At the time of admission of the second Appeal, this Court mooted out the following substantial questions of law for consideration.

    “1. Whether the question of title can be said to be alien to the suit for bare injunction based on possession, and

    2. Whether the Courts below have properly appreciated and applied the principles governing revocation of a will to the facts of the present case?”

    3. On the first substantial question of law, possession having been found with the plaintiff, she could certainly maintain that possession, provided she makes out a right to it. It is true that as per the terms of Ex. A. 2, the plaintiff could get at the suit pro perty only after the lifetime of the second defendant. Rightly the lower Appellate Court took note of the subsequent event, namely, the demise of the second-defendant and held that the suit could be maintained by the plaintiff to protect her possession. To have her possession protected, the plaintiff has to demonstrate that her possession could not be unlawful. Hence, for the purpose of finding out whether the plaintiff has got right to lawful possession, so as to maintain that possession the question of title can certainly be gone into. Even as a person, who has been given a life-estate only, the plaintiff could maintain a suit for for permanent injunction, because she is entitled to have possession during her lifetime. Hence, the first question is answered as above. The question as to whether Ex. A. 2 could survive after Ex. B. 6, the deed of revocation and if it does not survive what rights of the plaintiff could claim over the suit-property is a different one and will fall within the ambit of the second substantial question of law.

    4. Before we consider the second substantial question of law, one controversy has got to be settled. Though the second substantial question of law does not specifically take in this aspect, yet it has got to be probed into and a finding must be given. The aspects as to whether Ex. B7 could, be ignored as not genuine, as contended by the plaintiff. There is one feature which was omitted to be taken note of by the two Courts below when they investigated into this aspect. The author of Ex. B7 was the second-defendant. While he was alive, he himself vouchsafed and affirmed the genuineness of Ex. B7 in his pleadings. The second defendant wanted to sustain Ex. B7. Under those circumstances, it will be futile to launch upon an enquiry as to whether Ex. B7 was genuine or not. Hence, the findings of the Courts below on this aspect are uncalled for and unwarranted and in ignorance of the above crucial features and they require setting aside and they are being hereby set aside and it must be held that Ex B7 is genuine, valid and operative.

    5. Then the question that comes up for consideration is whether the second-defendant, after the demise of Krishnamnul, could revoke Ex. A2 by executing Ex B6. The general proposition of law is that a joint Will is revocable at any time by either of the testators during their joint life or after the death of one of them by the sur vivor. There could be an exception and that could be in the case of a mutual Will. Even to render a mutual Will irrevocable, two conditions will have to be satisfied; (i) the surviving testator must have received benefits from the deceased testator under the mutual Will and (ii) the mutual Will should have been executed in pursuance of an agreement that the joint testator shall not revoke the mutual Will. On the facts of the present case, the theory applicable to mutual Wills would not arise. If that is so, there could always be a revocation by the survivor of the joint testator. In Theobald on Wills 13th Edition, on joint Wills at paragraph 97 at page 98 the following passage occurs:

    “Joint Wills: Persons may make joint Wills, which are, however, revocable at any time by either of them or by the survivor. A joint Will is looked upon as the Will of each testator, and may be proved on the death of one. But the survivor will be treated in equity as a trustee of the joint property if there is a contract not to revoke the Will, but the mere fact of the execution of a joint Will is not sufficient to establish a contract not to revoke. So a legacy to a legatee who survived the first testator, but predeceased the second, did not lapse. Where a joint Will is followed by a separate Will which is conditional on a condition that fails, the joint Will is not revoked even though the subsequent separate Will contains a revocation clause.”

    In Williams Mortimer and Sunnucks on Executors, Administrators and Probate (Sixteenth- Edition of Williams on Executors and the Fourth Edition of Mortimer on Probate) at page 120, the following passage on joint Wills is worth noting:

    “A joint Will is a single instrument whereby two or more persons give effect to their testamentary dispositions. If the Will is duly executed by the testators it is as much the Will of each of them as if they had made separate Wills each dealing with that person's own property. Such a Will is revocable at any time by any of the testators during their joint lives, and by the survivor after the death of one of them: but if ft is not altered or revoked, it will take effect as the Will of the survivor. A joint Will may operate a power of appointment.”

    In a treatise on Wills by Thomas Jarmon (Eighth Edition Volume, 10), this is what has been observed on joint Wills:

    “Two or more persons may make a joint Will, which, if properly executed by each, is, so far as his own property is concerned, as much his Will, and is as well entitled to probate upon his death, as if he had made a separate Will. But a joint Will made by two persons, to take effect after the death of both, will not be admitted to probate during the life of either. Joint Wills are revocable at any time by either of the testators during their joint lives, or, after the death of one of them, by the survivor.”

    In Meenakshi Ammal v. Viswanatha Aiyar 1910 I.L.R 33 Madias 406. a Bench of this Court, consisting of Sir Arnold White, C.J, and Krishnaswami Ayyar, J., countenanced the power of the survivor of the joint Will to revoke the same, unless he has derived some benefit under the Will.

    6. Such being the legal position, as it stands expatiated by authorities, I am convinced that the lower Appellate Court was not right in discountenancing the right of the second-defendant to revoke Ex. A2 by executing Ex. B6. The second question is answered in favour of the first-defendant. On the demise of Krishnammal, her rights in the suit-property could devolve intestate only on her husband, the second defendant, and the earlier Will Ex. A2 having been validly revoked by the second-defendant by executing Ex. B. 6, the second defendant was competent to deal with the suit property by executing a fresh will Ex. B7. I have found Ex. B7 valid, genuine and operative. Hence,, the plaintiff, to maintain her possession, cannot hang on to any right given to her under Ex. A. 2, since that has been superseded by Exs. B. 6 and B. 7. The plaintiff has to fail since she has no right to lawful possession. Accordingly, the Second Appeal is allowed; the decisions of the two Courts below are set aside; and the suit of the plain-tiff stands dismissed. Considering the relationship between the parties, I direct them to bear their respective costs throughout.

    VCS.

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    Comments

    P. Krishnan v. Lakshmi Ammal
    (Feb 10, 1989)