Madras High Court
S. Nagarathinam vs S. Balakathiresan And Ors. on 29 March, 1993
Equivalent citations: (1993)1MLJ678
JUDGMENT Thangamani, J.
1. The appellant is the plaintiff in the trial court. Defendants 1 and 2 are his brothers. They are the sons of one Sankiah Pillai and Chithirathammal. While the third defendant is the wife of the first defendant, the fourth defendant is the wife of the second defendant. Door No. 2 in Ramu Pillai Lane, South Veli Street, Madurai, described as item 1 in 'A' schedule appended to the written statement of the first defendant originally belonged to the mother of Sankiah Pillai. On the death of his mother Sankiah Pillai became exclusively entitled to this house as his separate property. He was also assigned an extent of .5 cents in Maruthur village. Sankiah Pillai bequeathed these two items in favour of the appellant by his Will Ex.A-1, dated 26.10.1966. The appellant claims that on the death of Sankiah Pillai on 29.111973, he became the exclusive owner of these properties. By the same Will Sankiah Pillai purported to bequeath 'A' schedule buildings and 'B' schedule lands and 'C schedule nanja and described in the plaint. The appellant instituted O.S. No. 213 of 1979 on the file of learned Subordinate Judge of Madurai for partition and separate possession of his 1/3 share in the abovesaid A, B and C schedule items and the items specified in Schedules D, E, F, G and H in the plaint. His claim was on the basis that A and B schedules are the family ancestral properties. The 'C' schedule property originally belonged to Chithirathammal, the wife of Sankiah Pillai. And on her death on 14.3.1978 it devolved on the appellant and defendants 1 and 2 who are her heirs. Plaint D and E schedule are house property and vacant site in Survey No. 44/5 of Thirumalai Nagar Colony. Plaint 'F' schedule items are vessels while 'G' schedule are furniture, garments and other articles. Plaint 'H' schedule are jewels. Alleging that Sankiah Pillai had no right to dispose of plaint A, B and C schedule properties under Ex.A-1 Will, the appellant ignored the provisions of the Will regarding these items and claimed his 1/3 share therein. However, he did not include Door No. 2. Ramu Pillai lane and the 5 cents plot referred to above and described as items 1 and 4 respectively in 'A' schedule to the written statement of the first defendant. He omitted to include them in any of the plaint schedules.
2 Defendants 1 to 4 contended that plaint D and E schedules are the separate properties of defendants 3 and 4 respectively. All the items described in F, G and H schedules are not available. Out of items 1 to 44 specified in 'F' schedule, only 18 items are in existence. Of the silver articles, item 45 alone is available, and items 46 and 47 are not at all in existence. In 'G' schedule, items 1 to 3,13, 14 and 15 are not in existence. The other items are available only in Door No. 50, one of the family houses where the appellant himself is residing. In 'H' schedule jewels items 1 to 11 are not in existence. Items 12 to 15 weigh only 33 1/2 sovereigns. The first defendant has paid Court Fees and prayed for the allotment of his share and the share of his brothers.
3. Their main contention is that the appellant cannot approbate and reprobate at the same time regarding the terms of the Will. He cannot be allowed to avail the portion which is beneficial to him and repudiate those which are against him. The trial Court held that the appellant must be deemed to have repudiated Ex.A-1 Will and that Sankiah Pillai died intestate. It also found that plaint D and E schedule items are the separate properties of defendants 3 and 4 respectively. Regarding plaint schedules F, G and H, items specified in schedules B, C and D appended to the written statement of the first defendant alone are available. It also held that the lands and buildings mentioned in 'A' schedule to the written statement including Door No. 2 Ramu Pillai Lane and the 5 cents of nanja land at Maruthur village are available for partition. Accordingly, the preliminary decree for partition and separate possession was passed in respect of plaint A, B and C schedules, the lands and houses described in 'A' schedule to the written statement of the first defendant and the movables mentioned in Schedules B, C and D appended to the written statement of the first defendant. The suit against defendants 3 to 14 was dismissed. Parties were directed to bear their respective costs.
4. Learned Counsel for the appellant mainly assailed the findings of the trial court regarding the inclusion of Door No. 2. Ramu Pillai lane and the 5 cents land in Maruthur village covered in 'A' schedule to the written statement in the preliminary decree on the basis that Sankiah Pillai died intestate. It is his argument that while the said property was validly bequeathed to him under Ex.A-1 Will, the disposition in favour of defendants 1 and 2 in respect of plaint A, B and C schedule Items cannot confer any right on the legatees. But, this argument runs counter to the express provision under Section 180 of the Indian Succession Act which reads as under:
Where a person, by his Will, professes to dispose of something in which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the Will.
This section corresponds to Sec 35(1) of the Transfer of Property Act which deals with the doctrine of election. The main principle is that there is an obligation on the legatee who takes a benefit under a Will or other instrument to give full effect to that instrument and if he finds that instrument purports to deal with something which it is beyond the power of the donor to dispose of, but to which effect can be given by the concurrence of him who receives a benefit under the same instrument, the law will impose on him who takes the benefit the obligation of carrying the instrument into full and complete force and effect. He must elect either to retain his own property or to relinquish his own and take in its place property given to him by the Will. The doctrine of election rests on the principle that he who accepts a benefit under an instrument must adopt the whole of it, conforming with all its provisions, and renouncing every right inconsistent with them. Election under Section 180 arises wherever the legatee derives some benefit from the Will to which he would not be entitled except for the Will. In such a case he has to elect whether to confirm the Will or dissent from it. He cannot accept and reject the same instrument. This is the foundation of the law of election.
5. In this case the testator Sankiah Pillai had intended to dispose of the entirety of plaint A, B and C schedule properties over which he had no such disposing power by Ex.A-1. This intention appears on the face of Ex.A-1 Will by the express words employed. He has chosen to bequeath these items along with No. 2. Ramu Pillai Lane over which he had exclusive right to dispose of. By instituting the suit for partition in respect of plaint A, B and C schedule properties the appellant has elected to repudiate the Will and dissent from it. So by the terms of Section 180 he has necessarily to give up his right in No. 2, Ramu Pillai Lane and the 5 cents plot which have to be divided among all the heirs as if Sankiah Pillai had died intestate. However, the trial Court is wrong in saying that the Will is void and he has died intestate. Under Section 180 of the Indian Succession Act, it is only the legatee who is made to give up the benefits provided for him by the Will. It does not mean that the testator died intestate.
6. Learned Counsel for the appellant relied on the decision in Valliammal Achi v. Nagappa Chettiar (1968)1 M.L.J. 347, to assail the finding of the court below. In that case one Palaniappa's father Nagappa had considerable properties. This Nagappa made a Will making certain dispositions in favour of his own wife and gave the residue of his property to Palaniappa and appointed him as an executor of the Will. After Nagappa's death Palaniappa obtained probate of the Will and after providing for the legacies to others as indicated therein came into possession of the residue of the property. Later on the plaintiff Nagappa was adopted by Palaniappa. Dispute arose between Nagappa the adopted son of Palaniappa and Valliammai Achi the widow of Palaniappa as to the character of property left by Palaniappa's father Nagappa. It was found that all the properties left by Palaniappa's father were joint family properties of Palaniappa and his father which Palaniappa could acquire by survivorship on his father's death. It was urged on behalf of the appellant therein that Section 180 would apply to the facts of that case for the property willed by Palaniappa's father was not his which he could Will away as it was joint family property in which Palaniappa who was a residuary legatee had also equivalent interest. Therefore Palaniappa had either to confirm the disposition or dissent from it, and his conduct showed that he had confirmed it for he took out probate. Therefore it must be held that after probate was taken out, the residue became the absolute property of Palaniappa and lost its character as joint Hindu Family property. The consequence of this was when Palaniappa adopted respondent Nagappa long after he had become the absolute owner of the properties, the respondent acquired no interest in them by virtue of the adoption. Palaniappa died after the Hindu Succession Act 30 of 1956 came into force. As there was no joint family property of Palaniappa and respondent Nagappa, the respondent could not claim half the property on the ground that it was joint family of himself and Palaniappa, as Palaniappa's election to take under the Will of his father would bind him also. On the question of election held that as Palaniappa and his father were members of a joint Hindu family and as entire property left by Palaniappa's father was joint family property and Palaniappa had interest in the residue of the survivorship, there was no question of election by Palaniappa for all the property he got by the Will would have come to him by survivorship. In any case the Supreme Court pointed out that election under Section 180 would only arise where the legatee derives some benefit from the Will to which he would not be entitled except for the Will. In such a case he has to elect whether to confirm the will or dissent from it. But where there is no question of legatee deriving any benefit from the Will to which he would not be entitled except for the Will, the fact that he confirms the Will and accepts what the Will provides would not amount to election, for he would have in any case got what the Will gave him. Thus election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by the Will. This decision cannot help the appellant in any manner because the facts therein are different from those in the present appeal. There what Nagappa Chettiar gave away under the Will belonged to the joint family of Nagappa Chettiar and his son Palaniappa in entirety. Even if there had been no Will, Palaniappa had a right by birth in it for a half share and on the death of his father would have become entitled to the entire property by survivorship. So the existence or otherwise of the will made no difference. But in the present case there were three sets of properties. While plaint A and B schedule properties belonged to the joint family of Sankiah Pillai and his three sons, 'C schedule property belonged to his wife Chithirathammal. But he had dealt with these three items as his own along with No. 2 Ramu Pillai Lane and 5 cents plot which are his exclusive properties. So the plaintiff had to choose either to ignore the Will and take his share in all the items as per the Law of Succession or to confirm the Will and get only what was bequeathed to him. Since he has elected to dissent from the Will and chosen to file the suit he cannot now be allowed to approbate and reprobate.
7. In Mani Mani and Ors. v. Mani Joshua , it has been laid down that under Section 180 of the Indian Succession Act, if a legatee has been given any benefit under a Will and his own property has also been disposed of by that very will, the legatee must elect either to confirm such disposition or to dissent from it, and in the latter case, he must relinquish all his claims under the Will if he chooses to retain his own property. The presumption being that a testator intends to dispose of only his own property, general words will not usually be construed so as to include a particular property over which he has no disposing power, unless, such an intention appears on the face of the Will either by express words or by necessary implication. In Bhau Ram v. Baij Nath Singh , the Apex Court has pointed out that a person who takes a benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety. The existence of a choice between two rights is one of the conditions necessary for the applicability of the doctrine of approbate and reprobate. While so, it is evident that there is no merit in the contention of the appellant.
7-A Learned Counsel for the appellant also submitted that even in this appeal he is entitled to make an election affirming the Will in entirety and claiming share on the basis of the Will as a whole. This is not possible since election once made is irrevocable. Moreover in this case, the plaintiff having made an election and filed the suit has put the defendants to unnecessary inconvenience and made them suffer expenditure. Hence he cannot be permitted to make a fresh election now.
8. The next contention raised in the appeal memo relates to D and E schedule properties. While defendants 3 and 4 claimed that these items are their separate properties, they have been included by the appellant in the plaint on the basis that they were acquired in the names of defendants with joint family funds. In view of Section 4(1) and Section 4(3)(a) of the Benami Transactions (Prohibition) Act 45 of 1988 this plea is no longer open to the appellant. The appellant has also not advanced any argument on this aspect.
9. The appeal memo further reads that the trial court has erred in holding that only the movables mentioned in B, C and D schedules of the written statement appended to written statement of first defendant are available for partition. And the Court below ought to have held that 8 1/2 sovereigns are available with the first defendant belonging to the joint family and they are liable for partition. But the appellant as P.W.1 states in his evidence that he has given the details in F, G and H schedule only from his memory and there is no authentic record to establish that all these items are available in the joint family. Regarding these items the trial court has taken the view that excepting the averments in the written statement of the first defendant, there is nothing to suggest that all of them were taken away by defendants 1 and 2. And accordingly the preliminary decree has been passed only in respect of items disclosed as schedules B, C and D in the written statement of the first defendant. We find no reason to differ from the view of the trial court. And learned Counsel for the appellant has also not challenged the same.
10. In the result, the appeal fails and is dismissed with costs of respondents 1 and 2.