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Case Number

S.A Nos. 638 and 765 of 1980

Judges

Varghese Kalliath, J.

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Smart Summary

Structured Summary of the Opinion (S.A. Nos. 765 & 638 of 1980)

Factual and Procedural Background

Two second appeals are before the court: S.A. No. 765 of 1980 (by the plaintiffs) and S.A. No. 638 of 1980 (by defendants 1 and 3 to 5).

The underlying suit was for partition. The plaintiffs claimed a 3/12 share; the contesting defendants denied any entitlement to that share, relying on a joint will (Ext. B13). At trial the court accepted the defendants' contention in part: it dismissed the suit as against the plaintiffs but passed a preliminary decree decreeing shares to the second defendant and defendants 3 to 5. The plaintiffs appealed; the appellate court dismissed their appeal and confirmed the trial court's judgment and decree. The plaintiffs then filed S.A. No. 765 of 1980.

In S.A. No. 638 of 1980, defendants 1 and 3 to 5 appealed the trial and first appellate courts' finding that the second defendant was entitled to a 3/9 share; they challenged the second defendant's entitlement to that share.

Material factual background: The disputed properties originally belonged to a tavazhi (marumakkathayam family unit) of Lakshmikutty Amma, who died in 1964 leaving three children — two sons (Velayudha Menon, who is the second defendant, and Appa alias Sankara Menon) and one daughter (Malukutty). Sankara Menon died insane in 1969; Malukutty died in 1970. Malukutty had two sons, Raghava Menon (died 1969) and Narayana Menon (first defendant). Plaintiffs are the wife and children of Raghava Menon. Ext. B13 is a joint will executed by Sankara Menon (represented by his sister Malukutty because Sankara was insane), Malukutty, and Narayana Menon (first defendant). The courts below held that the will was operative as regards the properties of Malukutty and Narayana Menon but not as regards Sankara Menon.

Legal Issues Presented

Whether the execution of a joint will in respect of tavazhi (marumakkathayam) properties is permissible under law (raised by appellants in S.A. No. 765 of 1980).
Whether a joint will containing an invalid or inoperative part (the bequest relating to Sankara Menon) is so tainted that the entire joint will must be declared void, or whether the invalid part can be severed (raised by appellants in S.A. No. 765 of 1980).
Whether the will (Ext. B13) has been properly proved (raised by appellants in S.A. No. 765 of 1980).
Whether the second defendant is entitled to the share (3/9) decreed to him (central contention in S.A. No. 638 of 1980 by defendants 1 and 3 to 5).
Whether the compromise decree in O.S. 797/61 (Ext. B14 and Ext. B1) — said to have been passed in violation of Order 23, Rule 3 CPC — can operate to alter or determine shares of the parties (raised in S.A. No. 638 of 1980), and whether that decree can be treated as a family arrangement.

Arguments of the Parties

Appellants in S.A. No. 765 of 1980 (the plaintiffs)

The courts below should have held that the entire joint will (Ext. B13) is inoperative and invalid.
Three specific points were advanced: (a) execution of a joint will in respect of tavazhi properties is not permissible in law; (b) the malignant part of the joint will (the bequest relating to Sankara Menon) so permeates the whole instrument that no severance is possible and the entire will is void; and (c) the will has not been properly proved.

Appellants in S.A. No. 638 of 1980 (defendants 1 and 3 to 5)

They maintain that the second defendant is not entitled to the 3/9 share that was decreed to him by the courts below.
They argued that the compromise decree in O.S. 797/61 (Ext. B14) and the judgment (Ext. B1) were passed in violation of Order 23, Rule 3 CPC and therefore that portion is without jurisdiction and cannot operate against the parties; they also urged that the compromise decree should be treated as a family arrangement (a submission rejected by the lower courts and by this court).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Velayudhan Pillai v. Neelakanta Pillai, 10 TLT 778	Recognition that severance of jointness of some members of a marumakkathayam tarwad does not automatically destroy the joint character of the remaining truncated tavazhi.	The court cited it as authority for the long-established principle that a truncated tavazhi may continue to exist.
Kunhikrishna Menon v. Rama Menon, 18 Cochin LR 521	Support for the principle on truncated tavazhi and continued jointness of remaining members.	Referred to as part of the body of Cochin decisions recognising truncated tavazhi; acknowledged but the court declined to decide tavazhi status because the point was not pleaded.
Madhava Menon v. Kunchi Amma, 29 Cochin LR 503	Authority recognising truncated tavazhi principle.	Referred to as supporting authority; the court accepted the principle but found the issue not properly raised in the pleadings.
Lekahmikutty Amma v. Gopalakrishna Menon, 38 Cochin LR 5	Recognition of truncated tavazhi principle in Cochin jurisprudence.	Cited in support of the general principle; court nonetheless refused to entertain the tavazhi argument at the second appeal stage because it was not properly pleaded.
Veattil Vellachi v. Gopalan, AIR 1944 Mad 407	Madras High Court recognition of the position that members dividing themselves off do not compel others to divide; illustrates consequences of partition/separation within a tavazhi.	Quoted (Horwill, J.) to illustrate the legal position on separation within a tavazhi; used to explain the law but the court held the tavazhi point was not raised properly in pleadings so it could not be decided in the second appeal.
Kuttimalu Amma v. Lakshmi, 1960 Ker LT 1201; AIR 1961 Ker 166 (Full Bench)	Full Bench authority stating that remaining members may continue as a truncated tavazhi after separation of some members.	Cited as settled law confirming that truncation does not necessarily destroy jointness; court accepted the principle but declined to apply it because plaintiffs had not pleaded it.
The obald on Wills (as cited in the opinion)	Statement defining a joint will (that it is a will made by two or more testators in a single document disposing of separate or joint property).	Used to introduce and explain the concept of a joint will for analysis of Ext. B13.
Halsbury's Laws of England (Fourth Edition) Vol. 50, p. 95	Authoritative definition and description of a joint will and how it operates on the death of each testator.	Quoted to define joint wills and to distinguish joint wills from mutual wills; applied in concluding that Ext. B13 is effectively three wills in one instrument.
K. Govindan v. T.T. Lakshmi Amma, AIR 1959 SC 71 (Venkatarama Aiyar, J.)	Discussion distinguishing joint wills from mutual (reciprocal) wills; stated that a joint will may be "three wills combined in one".	Read at length and relied upon to show that a joint will can be treated as separate testamentary dispositions by each testator; used to support severability of Ext. B13.

Court's Reasoning and Analysis

The court addressed each principal contention in turn and explained its legal and procedural reasoning.

On the tavazhi (truncated tavazhi) argument

The court acknowledged established authorities (both Travancore/Cochin and Madras decisions, including cited cases) recognizing that the severance of one or more members does not ipso facto dissolve the remaining truncated tavazhi; the remaining members may continue as a truncated tavazhi. However, the court found that this argument — that the properties in Ext. B13 were tavazhi properties of a truncated tavazhi — was not raised in the plaint and had not been argued before the courts below. Although there may be an incidental reference in the appeal memorandum, the court held that it would not be justified at the "third tier" (second appeal) to investigate and decide this point where the pleadings and lower court proceedings proceeded on the basis that the properties were held and enjoyed as co-owners (not as tavazhi property). Accordingly, despite accepting the legal principle, the court declined to uphold the appellants' tavazhi-based objection for procedural reasons.

On severability of the joint will (Ext. B13)

The court first examined the nature of a joint will. It cited statements from The obald on Wills and Halsbury's Laws of England to define a joint will as a single document containing two or more wills, each operative as the will of the respective testator. The court explained the distinction between joint and mutual wills — mutual wills involve reciprocity of benefits between testators, which is not a necessary feature of a joint will.

Relying on the authorities and textual definitions (including extensive reference to K. Govindan v. T.T. Lakshmi Amma), the court concluded that Ext. B13 is a joint will executed by three testators and in effect comprises three separate testamentary dispositions in one instrument. Each testator's will retains its separate identity. Consequently, the part of the instrument that was found inoperative with respect to Sankara Menon's properties could be severed without invalidating the dispositions as regards Malukutty and Narayana Menon. The court therefore held that the lower courts correctly treated the will as severable and valid in respect of the two testators whose dispositions were not tainted.

On proof of the will (Ext. B13)

The court noted that sufficient evidence had been admitted at trial and that both the trial and appellate courts had valued the evidence and held that the will had been properly proved. The court declined to reappreciate evidence in a second appeal and accepted the lower courts' findings that the will was proved insofar as it governed the properties of Malukutty and Narayana Menon.

On the compromise decree and entitlement to shares (S.A. No. 638 of 1980)

The court observed that Ext. B14 (the decree in O.S. 797/61) and Ext. B1 (the judgment in that suit) recorded a decree passed in terms of a compromise. The court found that the compromise decree had been passed in violation of Order 23, Rule 3 CPC and that the portion of the decree offending O.23 R.3 was therefore without jurisdiction and could not operate against the concerned parties. Both the trial court and the appellate court had considered whether the compromise decree could validly determine the devolution of shares of defendants 1 and 2 and concluded that it could not, because the devolution of those shares was not a subject-matter of O.S. 797/61.

The appellants contended that the compromise decree should be treated as a family arrangement; the court found it difficult to accept this submission and agreed with the trial court's finding that the decree could not properly be treated as a family arrangement. The court further noted the practical principle that when both trial and first appellate courts concur on a crucial fact, there is strong justification to close the matter, particularly given the restricted scope for reappreciation of facts in a second appeal after amendment to Section 100 CPC. The court therefore found no substance in S.A. No. 638 of 1980.

Holding and Implications

Holding: The court's final decision was to dismiss both appeals. The court stated:

DISMISSED (both appeals dismissed).

Implications:

The court upheld the lower courts' conclusions that Ext. B13 is a joint will which, as executed, comprises separate testamentary dispositions by the three named testators and is severable; the portion relating to the insane testator Sankara Menon is ineffective without invalidating the dispositions of the other two testators (Malukutty and Narayana Menon).
The court accepted that the will (as to Malukutty and Narayana Menon) had been properly proved by the evidence admitted at trial and that this court would not reappreciate that evidence in a second appeal.
The court affirmed the lower courts' conclusion that the compromise decree in O.S. 797/61 contained a portion that offended Order 23, Rule 3 CPC (and so that portion was without jurisdiction) and that the decree could not validly affect the devolution of shares that were not made the subject-matter of that suit; it rejected the submission that the decree should be treated as a family arrangement.
Direct effect: the preliminary decree and shares decreed by the trial court (as confirmed by the appellate court) stand; the plaintiffs' challenge to the will in its entirety failed; the challenge to the second defendant's share failed. No broader precedent was announced beyond application of existing authorities on joint wills, severability and the limits of second appeal fact-review; the court simply applied existing principles to the facts and dismissed both appeals. The court made no order as to costs.

Note: This summary is compiled solely from the content of the provided opinion. No external facts, holdings or inferences beyond those explicitly set out in the opinion have been added.

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V. Sarada And Others v. K.V Narayana Menon And Others

1. S.A No. 765 of 1980. This appeal is by the plaintiffs. The suit was one for partition. Plaintiffs claim 3/12 share. The contesting defendants resist the claim. They say that the plaintiffs are not entitled to any share. This defence is based on a will Ext. B13. The trial court upheld the contention of the defendants. It dismissed the suit as against the plaintiffs; nevertheless it passed a preliminary decree decreeing shares to second defendant and defendants 3 to 5. The defeated plaintiffs filed an appeal. The appellate court dismissed the appeal and confirmed the judgment and decree of the trial court. Now the plaintiffs appeal.

S.A No. 638 of 1980:

2. This appeal is by defendants 1 and 3 to 5. In this appeal, the appellant maintains that the second defendant is not entitled to the share now given, namely 3/9 share in the property. This contention of defendants 1 and 3 to 5 was not accepted by the trial court. The appellate court also agreed with the findings of the trial court on this aspect. Hence defendants 1 and 3 to 5 appeal.

3. Facts are these:— The properties in dispute originally belonged to a tevazhi of the Lakshmikutty Amma. She died in 1964 leaving three children — two sons and one daughter. The sons are Velayudha Menon, the second defendant and Appa alias Sankara Menon. Malukutty is the only daughter. Sankara Menon died as an insane person in 1969. Malukutty died in 1970.

4. Malukutty had two sons, Raghava Menon and the first defendant Narayana Menon. Raghava Menon died in 1969. Plaintiffs are the wife and children of Raghava Menon. First plaintiff is the wife, second plaintiff, the daugther and the third plaintiff is the son. First defendant is the son of Malukutty, the second defendant is the son fo Lakshmikutty Amma, third defendant is the wife of the first defendant, defendants 4 and 5 are the son and daughter of first and third defendants.

5. Now about will Ext. B13, which formed the stereobate of the defence: This will was executed by three persons — Appa alias Sankara Menon, Malukuttya and Narayana Menon — the first defendant. Sankara Menon being an insane person was represented by his sister Malukutty. The tenor of the will indicates plainly and clearly that it is a joint will.

5A. The courts below found that the will is operative and effective in regard to the properties of Malukutty and the first defendant Narayana Menon. I may incidentally say that the first defendant also died pending the suit. By the will, the properties have been bequeathed to defendants 3 to 5 and they claim the properties of Malukutty, Narayana Menon and Sankara Menon. The plaintiffs contended that the whole will is bad and invalid. The courts below held that the will in respect of the properties of Sankara Menon cannot be given effect to and to that extent the will be bad.

6. The learned counsel for the appellants in S.A No. 765 of 1980 submits that the courts below ought to have held that the entire will is inoperative and invalid. The counsel raised three points before me to shore his submission. He submits that:

(a) execution of a joint will in respect of thavazhi properties is not permissible in law;

(b) No surgery even if it is a radical surgery to remove the malignant part of the will (the bequest in respect of the properties of Sankara Menon) can prevent the ultimate infraction of the will. He says that the malignancy was inoperable; it infracts the whole will. The will in its entirety is morbid, void and invalid;

7. In order to substantiate his first point, the counsel submitted that Sankara Menon, Malukutty and Narayana Menon formed a truncated tavazhi. He says so because the other members of the tavazhi got separated by a decree in a suit, O.S 797/61 and Raghava Menon by Ext. A1 partition deed. I have no doubt that the severance of jointness of one or more members of a marumakkathayam tarwad does not ipso facto bring about a complete disruption of the tarwad. It is a long established and of applied principle of marumakkathayam law, which I should not seek to whittle away. Both the Travancore and Cochin Courts have recognised this principle. Vide Velayudhan Pillai v. Neelakanta Pillai, 10 TLT 778, Kunhikrishna Menon v. Rama Menon, 18 Cochin LR 521, Madhava Menon v. Kunchi Amma, 29 Cochin LR 503 and Lekahmikutty Amma v. Gopalakrishna Menon, 38 Cochin LR 5. The principle stated above has been accepted by the Madras High Court in Veattil Vellachi v. Gopalan, AIR 1944 Mad 407. In AIR 1944 Mad 407, Horwill, J. observed thus:—

“It is rather a different matter where certain members of a tavazhi divide themselves off from the tavazhy. By dividing themselves off, some children cannot compel their mother to divide herself from those children who prefer to remain joint with her.”

This position has been accepted by a Full Bench in Kuttimalu Amma v. Lakshmi, 1960 Ker LT 1201 : (AIR 1961 Ker 166) where it is observed thus:

“Though a tavazhi cannot be created ad hoc on separation of one or more members from a tavazhi the remaining members may continue to remain joint as members of a truncated tavazhi.”.

8. There cannot be any dispute in regard to this question. But the difficulty for the appellants is that such a case of tavazhi (truncated tavazhi) and the impact of this tavazhi character of the property bequeathed under the will was not raised in the plaint. It seems that this point has never been argued before the courts below. But the counsel for the appellants submits the various aspects of this matter and I am told that he has raised this point in his appeal memorandum. Though it is not very clear from the appeal memo, it is possible to see an incidental reference in regard to this point. In the plaint, this point has not been raised and it seems that the averments in the plaint will only lead to an inference that the plaintiffs never based their claim on this point and the plaint proceeded on the basis that the properties which formed the subject-matter of the will were held by the three testators as their own properties held and enjoyed by them as co-owners. It is specifically stated that the properties are held and enjoyed by the three persons named in paragraph 3 of the plaint who were the testators of the will, which would plainly indicate that the plaintiffs had never thought of a plea on the basis of the existence of a truncated tavazhi. In this format of facts, I think I will not be justified at third tier stage to investigate the question and to hold that the properties that were the subject-matter of the will should be treated as tavazhi properties. I think that the case has to be proceeded on the basis that the properties dealt with in the will are not tavazhi properties. So, I hold that there is no merit in this point.

9. On the second point, the counsel submits that since the courts below have found that part of the will in respect of the properties of Sankara Menon is malignant and so inoperative, being a joint will, this malignancy permeates the whole body of the will beyond the reach of the courts' surgical blade to separate the good from the bad and would make the whole will ineffective and invalid. I have to examine the soundness of this point.

10. In examining the correctness of this point, I feel that I should first be informed of the significant character and the real nature of a joint will. I should delineate the legal and practical contours of it.

11. The obald on Wills states a joint will is looked upon as the will of each testator and may be proved on the death of one. Halsbury's Laws of England (Fourth Edition) Vol. 50, page 95 precisely states what is a joint will. There it is stated thus:—

“A joint will is a will made by two or more testators contained in a single document, duly executed by each by 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 probates 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.”

12. A jointly will, though for all apparent purposes, is a single testamentary instrument, constitues or unites in the testamentary disposition of two or more persons. The document only evidences that two or more persons have executed their wills in a single document. A clear and better picture of the distinguish joint wills from mutual wills. Mutual wills as distinguished from joint are described as reciprocal wills. Reciprocity in the matter of bequests under the will is the sigil and signet of a mutual will. The testators should confer upon each other reciprocal benefits. This integrant is not necessary to make a joint will since as I said earlier, a joint will is only the will of two or more persons in a single instrument. This idea of a joint will has been succinctly stated by Venkatarama Aiyar, J. in K. Govindan v. T.T Lakshmi Amma, AIR 1959 SC 71. Venkatarama Aiyar, J. has compared a joint will and a mutual will in that decision This, His Lordship did, only to spot-light the real content, scope and width of a joint will as opposed to a mutual will I feel that it is excusable to read two salient passages at some length from the judgment of Venkatarama Aiyar, J. for the clarity of its content and the vigour of its prose. The first passage reads at p. 75:—

“In this view, the will must be held to be a testmentary disposition by the three testators of their properties operating on the death of each testator on his properties, and was in effect, three wills combined in one.”

(Emphasis added.)

“A will is mutual when 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 question of a mutual will.”

12-A. From the facts disclosed and from the tenor of the will in question, I have to hold that the will Ext. B13 is a joint will of three testators, Ext. B13 in fact and in effect plainly composes three wills executed by three testators in a single document. Each will has got its own identity and separate standing. So the will in regard to the properties of the insane person can be safely severed without causing any legal invalidity for the operation of the remaining part of the will and the disposition of the properties of the other two testators, Malukutty and Narayana Menon. This is what has been held by the courts below and it is perfectly legal and correct.

13. The counsel submitted that the will has not been properly proved. The evidence in the case shows that sufficient evidence has been let in and both the courts have valued the evidence carefully and correctly and held that the will has been proved properly. I cannot in second appeal re-appreciate the evidence on this matter. Since I am now holding that the will is valid in regard to Malukutty and Naranaya Menon, I see no substance in this appeal S.A No. 765 of 1980 is only to be dismissed. I do so.

S.A No. 638 of 1980.

14. Ext. B14 is the decree in O.S 797/61 and Ext. B1 is the judgment in that suit. The suit was instituted by the second defendant. Decree was passed in terms of a compromise. That compromise decree was passed in violation of O. 23, R. 3 and so that portion of the decree which offended O. 23 R. 3 is without jurisdiction and will not operate against the parties concerned.

15. The appellate court has considered the matter and held that the contention raised by defendants 1 and 3 to 5 is unsustainable in law. It was found by the trial court as well as by the appellate court that the compromise decree cannot take in legally and validly the devolution of shares of defendants 1 and 2 in that suit since that was not a subject-matter of the suit O.S 797/61. Counsel for the appellant submitted that the compromise decree should be treated as a family arrangement. I find it absolutely difficult for me in the circumstances to accede to the submission made by the counsel for the appellants that the decree should be treated as a family arrangement. The trial Court, for good reasons, held that it is not possible to treat the decree as a family arrangement. This finding of the trial court, the appellate court has also confirmed.

16. Though the confirmation by the first appellate court on a crucial fact found by the trial court insulates the verdict with no inerrability, but since absolute objective certainty is impossible in this imperfect world, there is plain and perfect justification on practical reasons to close the door when the first two judges concur in the factual conclusion at separate levels particularly in the wake of the tight rule of prohibition of overseeing by this court in second appeal the conclusions on facts by the appellate court made more stringent by the amendment to S. 100 of the Code of Civil Procedure. I see no substance in this appeal. It is only to be dismissed. I do so.

In the result, both the appeals are dismissed. In the circumstances of the case, I make no order as to costs.

Appeals dismissed.

V. Sarada And Others v. K.V Narayana Menon And Others

Structured Summary of the Opinion (S.A. Nos. 765 & 638 of 1980)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants in S.A. No. 765 of 1980 (the plaintiffs)

Appellants in S.A. No. 638 of 1980 (defendants 1 and 3 to 5)

Table of Precedents Cited

Court's Reasoning and Analysis

On the tavazhi (truncated tavazhi) argument

On severability of the joint will (Ext. B13)

On proof of the will (Ext. B13)

On the compromise decree and entitlement to shares (S.A. No. 638 of 1980)

Holding and Implications

V. Sarada And Others v. K.V Narayana Menon And Others

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