[Joint Will] Property Of Only Deceased Testator Bound By Disposition; Does Not Operate Against Property Of Surviving Testator Till Death: Kerala HC

The Kerala High Court recently laid down that on the death of one among the testators, either in the case of joint Will or a mutual Will, the property left out by the deceased testator included in the Will alone would stand bound by the disposition made therein and it would not operate as against the property of the other testator, who is alive, till his/her death. 

Justice P. Somarajan observed that where a clause has been incorporated in the Will stating that the surviving testator will not have any right to alter any of the dispositions made under the Will, the same should not be read in substitute of requirement of a mutual Will, unless it is supported by reciprocal demise.

"The surviving testator will have every right to deal with the property till her/his death irrespective of whether the Will and the dispositions thereunder came into effect as against the property of the deceased testator", the Court added, with regard to the property belonging to the surviving testator. 

The plaintiff had filed a suit for setting aside the sale deed executed by one Subhadramma (named as the 1st defendant, and who subsequently died), with respect to her properties. The plaintiff averred that the sale deed was executed in violation of the disposition made in the Will, that had been jointly executed by the 1st defendant and her husband, Ramakrishna Pillai. The sale deed was executed by the 1st defendant after the death of her husband. Hence, the plaintiff argued that since the Will was a reciprocal one which clearly stated that none of the testators would have the right to alter it during their life time in its clauses, the said sale deed stood vitiated. It was added that the first defendant would be bound by the same. 

The Court found that nowhere in the Will had any clause been stipulated regarding reciprocal demise. 

The High Court was dealing with the Regular First Appeals that were filed against the judgment of the Additional Sub Court, Thrikkakkara. It found that the clause incorporated in the Will that the surviving testator will not have any right to modify any of the dispositions under the Will after the death of one among the testators should only be understood as pertaining to the respective property of the testators. The Court added that this was further evident from the subsequent clause which states that if any of the testators wants to make any modification, it should be done jointly by them during their life time.

"These two clauses should be interpreted subject to the rule of construction embodied under Section 82 of the Indian Succession Act, for which, the entire dispositions and every part and parcel of each clauses has to be construed conjointly and not in isolation", it observed. 

The Court relied upon the Apex Court decision in Kaivelikkal Ambunhi v. H.Ganesh Bhandary (1995) to point out that there is "a cardinal difference" between the rule of construction available to a Will or a testament apart from the normal rule of construction.

It explained that the rule of interpretation could be applied in various clauses included in a testament including clauses repugnant to each other for determining what exactly constituted the said clause. However, the Court pointed out that while the 'rule of construction' was interchangeably used with 'rule of interpretation', both are different in its application. 

"...when life interest alone was given with an ultimate disposition, what has to be applied is the rule of interpretation with respect to the wording used so as to find out any repugnancy and when it is found that the repugnancy to the extent of making the earlier clause incorporated in the subsequent clause, the rule of construction would come into play so as to determine as to which of them would operate. When there is no repugnancy either to minimize or to scale down the first disposition, there is no scope for applying the rule of construction by applying any of the provisions of the Indian Succession Act i.e. Section 82 or 84 of the Act", the Court explained. 

It went on to add that, 

"It is yet another special rule of construction of Will,...that a subsequent repugnant clause with an ultimate disposition so as to scale down the earlier absolute disposition would stand inoperative and invalid". 

The Court thus concluded that the sale deed executed by the 1st defendant with respect to her property during her life time was legally valid. It further discerned that the Will was not a mutual Will. Hence, as regards the property left out by the deceased testator, the Court found that the legatees alone would get the property. 

Case Title: Jayadevi v. Narayana Pilla & Ors. 

Citation: 2023 LiveLaw (Ker) 6

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