Kerala High Court
Mavila Chathoth Vasudevan Nambiar vs Mavila Chathoth Krishnan Nambiar And ... on 10 October, 1986
Equivalent citations: AIR1987KER88, AIR 1987 KERALA 88, ILR (1987) 1 KER 430, (1987) ILR(KER) 1 KER 430, (1987) KER LJ 82
Author: K.S. Paripoornan
Bench: K.S. Paripoornan
JUDGMENT Viswanatha Iyer, J.
1. Appellant herein filed the suit for partition and separate possession of his l/6th share in the plaint schedule properties. These properties admittedly belonged to one Kunkan Adiyodi, who died on March 2, 1977 at the age of about 92. Kunkan Adiyodi had four sons, namely the plaintiff, defendants 1 and 2 and one Padmanabhan Nambiar who was dead prior to the filing of the suit, and whose heirs at law are defendants 10 to 16. Kunkan Adiyodi had also two daughters, namely the 3rd defendant and one Madhavi Amma who was also dead before the filing of the suit and whose heirs are defendants 4 to 9. Plaintiff claimed l/6th share in the properties which belonged to Kunkan Adiyodi as if he died intestate.
2. The 1st defendant, the 2nd defendant, the 3rd defendant and defendants 4 to 9 filed separate written statements contending that the plaint schedule properties were not partible as claimed by the plaintiff, inasmuch as Kunkan Adiyodi had executed a will on January 6, 1971, a registration copy of which was produced and marked as Ext. B3 in the suit, and that the properties had devolved on the various parties as per the terms of the will. Plaintiff had right only over the property described in Schedule C to the will, namely item No. 8 in the schedule to the plaint and therefore he was not entitled to any share over the other properties.
3. The fact that Ext. B3 will contain the signature of Kunkan Adiyodi is not in dispute. What was contended by the plaintiff in the lower Court and which was repeated before us was that Kunkan Adiyodi was not in a sound disposing state of mind at the time when Ext. B3 was executed and that, therefore, Ext. B3 should be eschewed from consideration.
4. As per Ext. B3, Kunkan Adiyodi had bequeathed the properties belonging to him, described in the A schedule, to Madhavi Amma, in B schedule to the 3rd defendant, in C schedule (which happens to be the residential house) to all the children including the plaintiff, in the D schedule and the amount due under decrees, investments or otherwise, to the first defendant and in the E schedule to a niece of his, namely, Devaki Amma. It is pertinent to note that despite being a legatee under the will, the plaintiff did not choose to make Devaki Amma a party to the suit though any decision in his favour regarding the validity of the Will will adversely affect the interests of Devaki Amma.
5. At the time of his death, Kunkan Adiyodi owned the immovable properties described in the plaint. There were also fixed deposits aggregating Rs. 60,000/- in his name in the State Bank of India and in the Corporation Bank. It was the contention of the first defendant that these fixed deposits have been bequeathed to him as a residuary legatee. Plaintiff's contention in regard to these fixed deposits was that the bequest to the first defendant was only of amounts receivable by Kunkan Adiyodi under decrees and investments and therefore the fixed deposits were not part of the bequest to the first defendant.
6. Madhavi Amma, the predecessor of defendants 4 to 9, to whom the properties described in A schedule to the will had been bequeathed, had pre-deceased the testator. Accordingly and based on Section 109 of the Indian Succession Act XXXIX of 1925, the heirs of Madhavi Amma, namely, defendants 4 to 9 claimed to be entitled to the said properties.
7. The lower Court held that Ext. B3 will had been executed by Kunkan Adiyodi while in a sound disposing state of mind, that its execution has been proved beyond doubt and that it was the last will and testament of Kunkan Adiyodi. The properties were thus held to have devolved on the parties in accordance with the directions contained therein. The lower Court also upheld the plea of defendants 4 to 9 of being entitled to the properties described in the A schedule to the will under Section 109 of the Indian Succession Act. The Court also held that the fixed deposits of Rs. 60,000/- devolved on the first defendant under the legacy in his favour in Ext. B3.
8. Counsel for the appellant Sri. P. G. Rajagopal raised three contentions before us : (a) that Ext. B3 was not a valid will as Kunkan Adiyodi did not have the testamentary capacity at the time it was executed; (b) that Section 109 of the Indian Succession Act did not apply to the bequest made to Madhavi Amma, that the bequest had lapsed, and therefore, the properties described in the A schedule to the will, were partible among all the natural heirs of Kunkan Adiyodi; (c) that the fixed deposits for Rs. 60,000/- were not comprehended in the residuary clause appended to the bequest to the first defendant and that this amount was also available for partition among the heirs of Kunkan Adiyodi. We shall deal with these contentions seriatim.
9. According to Mr. Rajagopal, there are a number of suspicious circumstances surrounding the execution of the will. The bulk of the properties (namely those included in the A schedule to Ext. B3) has been given to one of the six children namely, Madhavi Amma and the plaintiff has been left with only a fractional right in the C schedule residential house. Madhavi Amma's husband was an influential person, a Sub Collector, and both the attesting witnesses to Ext. B3 were persons who had worked under him. The will had been attested at about 10 a.m. on a working day and deposited with the Sub Registrar, but the attestors had not taken leave or even obtained permission from their office to go over to the Sub Registrar's office. Kunkan Adiyodi was very old, namely 85 years, on the date of Ext. B3 and the persons most competent, namely defendants 1 and 2, had not been examined to prove his testamentary capacity. So also the Registrar with whom the will was deposited. According to Sri. Rajagopal, all these are circumstances which militate against the validity and genuineness of the will and therefore Ext. B3 should be discarded as not one executed by a person in a sound disposing state of mind.
10. The will was executed on January 6, 1971. Kunkan Adiyodi lived for six years thereafter and died on March 2, 1977. The evidence on record shows that he was a competent person, methodical in his ways, and regular in his habits. He has regularly maintained accounts which have been produced in the case as Exts. B4 to B7. Therein he has meticulously recorded in his own hand, his daily expenses during the years 1972, 1973, 1974 and 1975. Exts. B4 to B7 have been proved by D.W. 3, a grandson of Kunkan Adiyodi who is familiar with his handwriting. Kunkan Adiyodi was a person who had litigations in Courts and letters have been produced namely Exts. B8, B9 and B12 addressed to Kunkan Adiyodi from the advocate's office. Ext. B10 is a letter written to him by Sri. T. M. Krishnan Nambiar, Advocate from Ernakulam and Ext. B11 is the money order receipt for amount sent to Sri Krishnan Nambiar. All these are of the year 1975 and prove that Kunkan Adiyodi had been attending to litigations and contacting his advocates even as late as in 1975. Exts. B23 to B26 are letters written by Kunkan Adiyodi to his son-in-law P. C. K. Nambiar between 13-9-1972 and 28-2-1974. These have been admitted in evidence and marked by consent. All these documents prove beyond doubt that Kunkan Adiyodi was carrying on a normal life even long after the execution of Ext. B3. If really he was not in a sound disposing state of mind at the time of Ext. B3, one is at a loss to understand why the will was not cancelled during the six years that Kunkan Adiyodi lived thereafter.
11. The will has been proved by the examination of D.Ws. 1 and 2. D.W. 1 is an attestor to the will. He is employed in the Sub Collector's office, which is near the Sub Registrar's office. He was acquainted with Kunkan Adiyodi and had had occasion to meet him in the Sub Collector's Bungalow, He has deposed that Kunkan Adiyodi signed in his presence and that at that time he was in good state of health and mind. He also deposed that he had worked under the son-in-law of the testator, (Madhavi Amma's husband) in 1968-69. The fact that he had once worked under Madhavi Amma's husband is not such as to cast any doubt about the validity of the will particularly when we remember that Madhavi Amma's husband was not the Sub Collector at the relevant time. There is nothing unnatural or suspicious in such a person as D.W. 1 being an attesting witness. There was not even a suggestion to D.W. 1 that he had attested the will or was deposing at the instance or influence of Madhavi Amma's husband.
12. D.W. 2 is the person who wrote Ext. B3. He had had occasion to write five or six documents for Kunkan Adiyodi since 1966 and was well acquainted with him. The will was written as per the instructions given by Kunkan Adiyodi. The draft was prepared on one day, approved on the next day, when the fair will was also partly written and completed on the next day, namely 6th January. The names of the witnesses were also written as given by Kunkan Adiyodi. D.W. 2 has deposed that Kunkan Adiyodi was in good health and in sound disposing state of mind at the time of execution of Ext. B3. There was no suggestion to him also of any interference by Madhavi Amma's husband in the execution of the will. His evidence has not been discredited in any manner in cross-examination. D.W. 3, the grandson of the deceased Kunkan Adiyodi who has proved Exts. B4 to B12 corroborates the evidence of D.Ws. 1 and 2.
13. In the light of this evidence and the circumstances, the so-called suspicious circumstances pale into insignificance. The execution of the will as also the fact that Kunkan Adiyodi had the testamentary capacity at the time of its execution are amply proved. Added to this is the circumstance that the plaintiff did not even choose to examine himself or lead any other evidence as to the capacity of Kunkan Adiyodi at the time of Ext. B3. If really his case of mental incapacity were true, he should have chosen to lead at least some formal evidence in that regard. But none was examined on his behalf. His plea in the plaint was also only halfhearted. It is true the will had not been mentioned in the plaint, which proceeded as if Kunkan Adiyodi died intestate. The averments in the plaint are at the same time insignificant in the absence of any specific averment regarding the mental incapacity of Kunkan Adiyodi. We will extract the relevant averments in para 5 of the plaint which are as follows : --
"Kunkan Adiyodi even 10 years prior to his death, was mentally and physically infirm. He was absolutely senile. He was not capable of doing anything. He was almost bed-ridden for a period of about 4 years prior to his death."
Senility, even if proved, is not tantamount to absence of sound disposing state of mind. Such halting pleas cannot take the place of positive averments which are required to nullify a will solemnly executed by the deceased person. We, therefore, reject (he contention regarding the validity of Ext. B3 will.
14. Coming to the next point, it is true that Madhavi Amma pre-deceased the testator, who had bequeathed the properties described in A schedule to the will to Madhavi Amma. At the end of every one of the bequests, the testator has stated that the legatee and none else shall be entitled to the property. The bequest to Madhavi Amma, for instance, reads : (Matter in vernacular omitted -- Ed.) From this, counsel for the appellant, would infer an intention to the contrary as envisaged in Section 109 of the Succession Act. According to him since the testator has stated that none but the legatee shall take the properties, he intended to exclude succession by anyone else, and therefore the bequest has lapsed.
15. Section 109 of the Indian Succession Act reads thus :
"Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will."
Three conditions have to be fulfilled under this section, namely (i) the bequest must be to a child or other lineal descendant of the testator, (ii) the child or lineal descendant dies in the lifetime of the testator leaving a lineal descendant who survives the testator; and (iii) there is no contrary intention in the will. The policy of the section is to prevent a portion given by a testator to a child going from the estate of such child, or his family being left portionless by reason only of the death of the child before the testator. The effect of the section is to prolong the life of the original devisee or legatee beyond the life of the testator and to give effect to the will, by avoiding a lapse. On the very terms of the section, it operates to confer the bequest on the heirs of the child or lineal descendant unless a contrary intention appears by the will. The contrary intention that the legacy should lapse on the death of the legatee before the testator, has to be found in the will itself. The words "unless a contrary intention appears by the will" mean that there must be" a clear, unambiguous and unequivocal intention by the testator in the will itself before a bequest in favour of a child or lineal descendant can be defeated. (Vide the decision of the High Court of Bombay in Amy Rusi v. Framroj, (1954) 56 Bom LR 910). The intention of the testator should be clear that he intended the bequest to Tapse in the event of the legatee predeceasing him. Section 105 of the Indian Succession Act lays down that if the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property unless it appears by the will that the testator intended that it should go to some other person. Section 107 deals with the case of a legacy to legatees, in words which show that the testator intended to give them distinct shares of the legacy, then if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property. These two sections lay down the general rule of lapse in the case of a legatee pre-deceasing the testator. Section 109 is an exception to this general rule of lapse, in the case of a bequest to a child or other lineal descendant. The intent of the section appears to be to prevent a lapse unless the testator has evinced a clear intention that the legacy should lapse on the death of the legatee before the succession opened.
16. There are not many decided cases on the question what is sufficient contrary intention to exclude the operation of Section 109. The decision of Romer, J. reported in Re Meredith Davies v. Davies, (1924) 2 Ch 552 (reproduced in (1924) All ER (Reprint) 409) is in point. In that case the testator bequeathed a share of furniture, and a legacy of 100 to his only son, and his residue equally between his five children including the son. The son, James Meredith, pre-deceased the testator father. Thereafter the testator made a codicil in which he stated : --
"Whereas since the date of my said will my son James Meredith has died and the legacy and share of residue given to him by my said will have lapsed now with a view of making some provision for the two children namely Thomas James Meredith and Videt May Meredith of my said son James Meredith I give to each of them a legacy of 100 free of duty such sums to be invested by my trustees and handed over to the said children with all interest on their respectively attaining the age of twenty-one years."
The question considered by Romer, J. was whether the bequest to the son James Meredith had lapsed in consequence of an intention contrary to the operation of Section 33 of the Wills Act of 1837 (which is in pari materia with Section 109 of the Indian Succession Act) having been expressed in the codicil. It may be noted that the bequest was a share of furniture, a legacy of 100 and 1/5th share in the residuary estate. However, the codicil dealt only with the legacy of 100 and the 1/5th share in the residuary estate without stating anything with regard to the household furniture. In the circumstances Romer, J. held that there was a contrary intention with regard to the legacy of 100 and 1/5th share in the residuary estate, but that in the absence of any mention of the furniture in the codicil the bequest of the furniture did not lapse. The learned Judge said : --
"If I had nothing in this codicil but a statement of James Meredith's death and then the gift of a legacy of 100 to each of his children, I should not be prepared to hold that the codicil showed a contrary intention within the meaning of the section. For if the section operated, the children of the deceased son would not take directly any part of the legacy or share of residue bequeathed to them and would not even be benefited by the bequest except in so far as they might be interested in his personal estate under his will or his intestacy. I could not therefore regard a direct gift to the children as an indication of the testator's intention that he did not wish the legacy or share of residue to form part of the deceased son's estate. In the present case I rely on the fact that the testator, after expressly reciting in his codicil that owing to the death of his son the legacy and share of the residue given to him by the will have lapsed, makes no express disposition to prevent such ; lapse taking effect. This, in my opinion, amounts to an expression of his intention that the legacy and share of residue given to the son by the will shall lapse. There is no mention of the furniture in the codicil, and, therefore, the gift of that in the will takes effect by virtue of the section but the legacy of 100 and the share of residue lapse, and as to them there is an intestacy."
The learned Judge was .prepared to uphold the lapse only so far as the legacy of 100 and 1/5 share in the residuary estate expressly referred to in the codicil were concerned and not in regard to the share in household furniture on the ground that there was no mention thereof in the codicil. An express statement was thus felt to be necessary to exclude the operation of Section 33 of the Wills Act, 1837.
17. The statement in the will Ext. B 3 that none other than Madhavi Amma shall take her share is only an affirmation of the exclusive rights of Madhavi Amma over her share vis-a-vis the other legatees under the will. It is not an expression of any contrary intention on the part of Kunkan Adiyodi that the bequest should lapse if Madhavi Amma pre-deceased him. The bequest to Madhavi Amma therefore, falls on her lineal descendants who are defendants 4 to 9 in the suit.
18. The third point urged by Mr. Rajagopal was that the fixed deposits of Rs. 60,000/- have not been the subject of any legacy under the Will and therefore are available for partition. The lower Court had found that these stand bequeathed to the first defendant under the clause which reads : (Matter in vernacular omitted -- Ed.) Mr. Rajagopal would contend that this clause limits the bequest only to investments made by the deceased and amounts receivable thereunder. In doing so he omits to note the significance of the words (Matter in vernacular omitted -- Ed.) occurring in the said clause which according to us is wide enough to take in such deposits. Apart from that, in the matter of interpretation of residuary clauses in wills it is now well settled that a strict grammatical interpretation should not be placed thereon.
"The fact that the residue is described in terms which grammatically exclude the property comprised in the ineffective legacy does not necessarily take the case out of the general rule : '.....the moment we get a true residue the law is that the residue is increased by the lapse of a legacy or the fact that it has not been given away in accordance with the expression of the testator's intention".
(Blight v. Hartnoll, (1883) 23 Ch D 218, at p. 222 and Hawkins and Ryder on the Construction of Wills, 3rd Edition at page 64).
We affirm the decision of the lower Court that the fixed deposits of Rs. 60,000/- also have been bequeathed to the 1st defendant under Ext. B3.
19. All the contentions raised by the appellant, therefore, fail. This is a case which should have entailed dismissal on the ground of non-joinder of an essential party to the suit namely Devaki Amma, the niece of Kunkan Adiyodi, a legatee under the will. However, we are not resting our decision on that ground.
20. We dismiss the appeal with costs.