This second appeal has been filed against the judgment and decree, dated 22.4.1993, made in A.S.No.309 of 1990, on the file of the Additional District Court, South Arcot District, Cuddalore, reversing the judgment and decree, dated 29.10.1990, made in O.S.No.64 of 1987, on the file of the Subordinate Court, Virudachalam.
2. The plaintiffs in the suit, in O.S.No.64 of 1987, are the appellants in the present second appeal. The defendants in the said suit are the respondents herein. The suit had been filed by the plaintiffs, praying for the relief of declaration of their title, recovery of possession of the suit properties and for mesne profits.
3. The plaintiffs in the suit, who are the appellants in the present second appeal, had stated that the suit schedule properties belonged to one Venkata Subba Reddiar, who is the brother of the grand father of the first appellant's husband. During his life time he had executed several Wills, dated 21.9.1940, 29.4.1942, 29.1.1943 and 20.9.1968. The last of his Wills was, on 20.9.1968, marked as Ex.B-3, bequeathing all his properties in favour of his wife Rajammal, for her life time and after her death to the defendants 1 to 3 and 9. His wife Rajammal had pre-deceased him, on 18.1.1974. Thereafter, on 21.2.1974, the said Venkata Subba Reddiar had settled a few of his schedule mentioned properties, which are Items 64 and 66 to 70, in favour of the first respondent's sons Sankaranarayanan and Baskar, by way of a settlement deed, marked as Exs.A-1 and B-1. Thereafter, the said Venkata Subba Reddiar had died intestate, on 3.2.1978, in respect of all other properties. As the second class legal heirs of the deceased Venkata Subba Reddiar, the first appellant's husband is entitled to the suit properties. Hence, the suit, in O.S.No.64 of 1987, had been filed by the first appellant's husband, Dhandapani Reddiar, who had died, on 4.7.1987, during the pendency of the suit. Thereafter, the appellants had been impleaded, as the plaintiffs.
4. According to the defendants 1, 2, 3 and 9 in the suit, who are the respondents in the present second appeal, they are second class legal heirs of the deceased Rajammal, wife of the Venkata Subba Reddiar. They had contended that the Will, dated 20.9.1968, had not been revoked by Venkata Subba Reddiar and that the settlement deed, dated 21.2.1974, marked as Exs.A-1 and B-1, was in consonance with the Will, dated 20.9.1968, marked as Ex.B-3. Therefore, by claiming right over the suit properties, based on Ex.B-3, Ex.B-1 and Ex.A-1, they had prayed for the dismissal of the suit. The fifth respondent is the purchaser of items 45 and 56 of the suit properties and therefore, he had adopted the averments made on behalf of the other respondents.
5. The plaintiffs had examined two witnesses on their side. The first appellant had been examined as P.W.1 and the second appellant had been examined as P.W.2. Three documents had been marked in favour of the plaintiffs, as exhibits. On the side of the defendants, five documents had been marked, as exhibits. Exs.A-1 and B-1 are one and the same document, namely, the settlement deed, dated 21.2.1974, executed by Venkata Subba Reddiar. Ex.B-3 is the Will executed by the said Venkata Subba Reddiar.
6. The trial Court had framed the following issues for consideration:
i)Whether any right has been vested in the 5th defendant, in respect of Items 45 and 56 of the suit schedule properties based on the sale deed, dated 17.5.1978?
ii)Whether the first defendant is entitled to claim any right in the suit schedule properties?
iii)Whether any right has accrued to defendants 1 to 3 based on the Wills, dated 21.9.1940, 29.4.1942 and 20.9.1968.
iv)Whether the Will, dated 20.9.1968, has been confirmed by the settlement deed, dated 21.2.1974?
v)Whether Venkata Subba Reddiar had nominated the first defendant as the legal heir for his properties, except those which had been bequeathed by way a Will, during his life time?
vi)Whether Item 65 of the suit properties belongs to the fourth defendant?
vii)Whether the necessary parties have been impleaded in the suit?
viii)Whether the description of the suit properties have been rightly given?
ix)Whether the valuation of the suit properties had been done correctly?
x)Whether the suit is affected by the law of limitation?
xi)Whether the plaintiffs are entitled to the reliefs, as prayed for in the suit?
xii)What reliefs the plaintiffs are entitled to?"
7. The additional issue framed for consideration, on 20.9.1990, is as follows:
"Whether it is correct to state that the Will, dated 20.9.1968, had been cancelled by the settlement deed, dated 21.2.1974?"
8. Based on the oral, as well as the documentary evidence adduced and in view of the issues framed, the trial Court had held, by its judgment and decree, dated 29.10.1990, that the Will executed by Venkata Subba Reddiar was not acted upon, since the beneficiary of the Will had died prior to the death of the executant. The trial Court had further held that the settlement deed had been executed by Venkata Subba Reddiar, in respect of a part of the properties covered under the Will. Therefore, the Will had not been acted upon and it should be presumed that it had been cancelled by the testator, in view of the settlement deed, dated 21.2.1974, marked as Exs.A-1 and B-1, settling a few of the properties included in the Will. It had been further held that the sale deed executed in favour of the fifth respondent is not valid. For the said reasons, the trial Court, by its judgment and decree, dated 29.10.1990, had decreed the suit as prayed for by the plaintiffs, except in respect of items 63 and 64 of the suit schedule properties. However, the suit had been dismissed in so far as the 6th and the 8th defendants were concerned.
9. Against the judgment and decree, dated 29.10.1990, made in O.S.No.64 of 1987, the defendants in the suit had filed an appeal before the Additional District Court, South Arcot District Court, in A.S.No.309 of 1990
10. The first Appellate Court had framed the following points for consideration:
"1) Whether Venkata Subba Reddiar had revoked the Will, dated 20.9.1968, by way of executing a settlement deed, dated 21.2.1974?
2) Whether all the other suit properties, except the properties mentioned in the settlement deed, dated 21.2.1974, would belong to the appellants 2 and 3, who are the second and the third plaintiffs in the suit?
3) Whether the judgment and decree of the trial Court is liable to be set aside?
4) What reliefs are to be granted to the appellants/defendants 1 to 3 and 9 in the appeal suit?"
11. Based on the contentions raised on behalf of the appellants, as well as the respondents in the suit, and in view of the evidence available on record, the first Appellate Court had held that the Will, under Ex.B-3, dated 20.9.1968, executed by Venkata Subba Reddiar, had not been cancelled. In the settlement deed, marked as Exs.A-1 and B-1, dated 21.2.1974, the deceased Venkata Subba Reddiar had stated that the settling of items 64 and 66 to 70 of the suit properties was in consonance with the Will. Therefore, it could be rightly held that the Will had not been cancelled. It had also been found that Venkata Subba Reddiar had executed the settlement deed, dated 21.2.1974, in favour of his wifes relative, out of love and affection towards them. Therefore, the Will is valid. Accordingly, the appeal had been allowed, dismissing the suit, by its judgment and decree, dated 22.4.1993, made in A.S.No.309 of 1990.
12. Aggrieved by the judgment and decree of the first Appellate Court, dated 22.4.1993, the present second appeal has been filed. This Court had admitted the second appeal on the following substantial questions of law:
"1) Whether the finding of the first Appellate Court that the Will Ex.B-3 is not revoked and therefore, binding, is legally sustainable in view of the execution of Ex.B-17?
2) Whether the finding of the first Appellate Court that the appellants 2 and 3 are not entitled to the suit property is legally sustainable inasmuch as they are the heirs of the deceased Venkata Subba Reddiar?"
13. The learned counsel for the appellants had contended that the judgment and decree of the first Appellate Court is against law, the weight of evidence and the probabilities of the case. The first Appellate Court had erred in holding that the registered settlement deed, dated 21.2.1974, marked as Exs.A-1 and B-1, does not revoke the last Will of Venkata Subba Reddiar, dated 20.9.1968, marked as Ex.B-3. The first Appellate Court ought to have held that the last document, namely, the settlement deed, dated 21.2.1974 would prevail over the Will, dated 20.9.1968, which had been made earlier in point of time. The first Appellate Court ought to have held that the suit properties had been left intestate and that the plaintiffs, being the legal heirs of the deceased Venkata Subba Reddiar ought to have got the properties by way of succession. The first Appellate Court had failed to note that the respondents, being the legal heirs of Venkata Subba Reddiar and his wife Rajammal, are not entitled to his properties.
14. It had also been contended that since the legatee, namely, Rajammal, had pre-deceased the testator, on 18.1.1974, the legacy had got lapsed and consequently, no one can claim any right or title over the suit properties, based on the Will, dated 20.9.1968. According to
Section 105 of the Indian Succession Act, 1925, the legacy cannot take effect, if the legatee does not survive the testator, but shall lapse and form part of the residue of the testators properties, unless it appears, by the Will, that the testator had intended that it should go to some other person.
15. By the conduct of the testator who had, subsequently, executed a settlement deed, dated 21.2.1974, it could be inferred that there was no intention on the part of the testator to allow the other persons under the Will, to enjoy the benefit. Accordingly, all other properties, except the one referred to under the settlement deed would, automatically, form part of the residue of the testators property and on his death, it would devolve upon the recognized legal heirs. Since the original plaintiff, Dhanapani Reddy, was the second class heir of the testator Venkata Subba Reddy, he is entitled to succeed to the properties.
16. The learned counsel had also contended that once the legacy lapses, as contemplated under
Section 105 of the Indian Succession Act, 1925, there would be no need for the testator to revoke the Will, subsequent to the death of Rajammal. In fact, there would be no Will in existence, after the death of the legatee. Further, the revocation or the cancellation of the Will can be gathered from the subsequent conduct of the testator by his act of executing a settlement deed, dated 21.2.1974. Thus, it would be clear that, atleast after the execution of the settlement deed, dated 21.2.1974, the testator had no intention to keep the Will alive.
17. The first Appellate Court had failed to see that the intention of the testator was only to give a life estate to Rajammal and after her life time to give the rights in the property to the others mentioned in the said Will. Since Rajammal had died, the Will cannot take effect, as it lapses. There cannot be a legacy which could be said to partly lapse and partly survive. The first Appellate Court ought to have seen that if the intention of the testator is to allow the Will to have its life and to allow the other persons, namely, Rajaram Reddy and others to enjoy the properties, as contemplated under the Will, the testator would not have chosen to execute a settlement deed, dated 21.2.1974. As such, the judgment and decree of the first Appellate Court, made in A.S.No.309 of 1990, is erroneous and liable to be set aside.
18. The learned counsel appearing on behalf of the appellants had relied on the following decisions in support of his contentions:
"1. Chinnasami Chetty V. Manickammal (44 L.W. 949 [Part 24])
2. Shiv Devi V. Nauharia Ram (AIR 1940 Lahour 318);
3. Kumarakrishnan V. Sundarambal (31 L.W. 587 [Part 37]);
4. S.J.Laxmi Bai V. Pothana Apparao (1969(2) SCC 91);
5. Firm Sood Traders V. Paras Ram (AIR 1985 Himachal Pradesh 93) and
6. Gurswaroop Joshi V. Beena Sharma (2006(3) CTC 53)"
19. Per contra the learned counsel appearing on behalf of the 12th respondent had stated that a Will is an ambulatory document which can come into force only after the death of the testator. The testator can revoke the Will, at any time, before his death.
Section 62 of the Indian Succession Act, 1925, establishes the said position. Section 63 of the Indian Succession Act, 1925, stipulates the manner of execution and attestation of an unprivileged Will, like the Will, dated 20.9.1968, marked as Ex.B-3.
Section 70 of the said Act, sets out the recognized methods for the revocation of the Wills. Therefore, a Will could be revoked only in accordance with the said provisions.
20. As per the terms of the Will, dated 20.9.1968, suit items 1 to 34, 61 and 62 had been bequeathed in favour of the defendants 2 and 3, absolutely. Items 35 to 60 and Item 63 of the suit properties have been bequeathed under the Will, dated 20.9.1968, in favour of the first defendant and his wife Saroja. As such, on the date of the death of Venkata Subba Reddiar, the properties belonging to him were only suit Items 1 to 63 and Item 65, in respect of which he had left the registered Will, dated 20.9.1968. After the execution of the deed of settlement, dated 21.2.1974, the testator had continued to be the owner of the remaining properties for which the only document was the registered Will, dated 20.9.1968. Hence, the Will comes into force on the death of its testator. In such a case, the appellants have no right to succeed to the properties of late Venkata Subba Reddiar.
21. The learned counsel for the respondents had relied on the following decisions in support of his contentions:
1. In Lakshmi Narasamma V. Ammanna Siddhanti (44 L.W. 950), it had been held as follows:
"Where a testator under his will gave a life-estate to his wife by name and the remainder to his brothers and nephews, the fact that subsequent to the execution of the Will, the wife named in the Will died and the testator married another wife who survived the testator does not have the effect of either a revocation of the Will or of enabling the second wife to take the benefit under the Will in the place of the wife named therein."
2. In Thakar Singh V. Arya Pritinidhi Sabha (AIR 1928 Lahore 934), it has been held as follows:
"Disposal of a part of the property covered under the Will does not amount to revocation of the Will"
3. In Fazal din V. Mian Karam Hussain (AIR 1936 Lahore 81), it has been held as follows:
"Gift of part of property covered under the Will does not revoke the Will. Will takes effect in respect of other properties"
In Anil Behari V. Latika Bala Dassi (AIR 1955 SC 566), it had been held as follows:
"Burden of proving that a Will is revoked lies on the person who asserts revocation. The document intending revocation is required by
Section 70 of the Succession Act to be executed in the same manner as a Will."
In Sridevi Amma V. Venkitaparasurama (FB) (Air 1960 Kerala 1 (V 47 C 1), it had been held as follows:
"Alienation of part of property covered by a Will is not indicative of revocation thereof. A Will is after all an ambulatory document and so operative only upon the property which exists at the time of the testators death."
22. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and in view of the evidence available on record and on a perusal of the decisions relied on by the learned counsels, this Court is of the considered view that the appellants in the present second appeal have not shown sufficient cause or reason to interfere with the findings of the first Appellate Court.
23. The first Appellate Court, having gone into the facts and circumstances of the case, had found it fit to set aside the judgment and decree of the trial Court, dated 29.10.1990, made in O.S.No.64 of 1987. The first Appellate Court had rightly come to the conclusion that the Will, dated 20.9.1968, marked as Ex.B-3, had not been revoked by the testator, namely, Venkata Subba Reddiar, by his settlement deed, dated 21.2.1974, marked as Exs.B-1 and A-1. In fact, it is found that the settlement deed, dated 21.2.1974, is in consonance with Clause 10 of the said Will, wherein he had reserved the power to alter or to amend the Will during his life time, either by exchanging, mortgaging or by selling the properties, which are the subject matter of the said Will. Thus, it is clear from the words used in the settlement deed, dated 21.2.1974, marked as Ex.B-3, "capy; rhrdj;ij mDrhpj;J would only confirm the view that Venkata Subba Reddiar, while executing the settlement deed, dated 21.2.1974, had been conscious of the existence of the Will.
24. As such, it is clear that he had, intentionally, settled some of the properties, which had been included in the Will, to certain others. Thus, it is also clear that the Will, dated 20.9.1968, had not been cancelled or revoked, in its entirety, due to the execution of the settlement deed, dated 21.2.1974. Further, from illustration 4 of
Section 105 of the Indian Succession Act, 1925, it is clear that a Will does not get lapsed on the death of a person, who has only a life estate, even if the person pre-deceases the testator, if the ultimate beneficiaries of the Will are alive. In the present case it is seen that Venkata Subba Reddiar, the testator of the Will, had created a life estate on his wife Rajammal and after her death to defendants 1, 2, 3 and 9. Even though Rajammal had predeceased the testator, on 18.1.1974, it cannot be said that the Will would stand revoked or lapsed.
25. Further, from a reading of the settlement deed, dated 21.2.1974, it is clear that Venkata Subba Reddiar, the testator of the Will, had only intended to give certain portions of the properties included in the Will to the sons of the first defendant, in accordance with Clause 10 of the Will. As such, it cannot be said that the Will, dated 20.9.1968, had been cancelled or revoked, by the testator of the Will. Nor can it be said that the Will had lapsed due to the death of Rajammal. Accordingly, the conclusions arrived at by the first Appellate Court cannot be held to be incorrect. Therefore, the second appeal is liable to be dismissed and accordingly, it is dismissed confirming the judgment and decree of the first Appellate Court, made in A.S.No.309 of 1990. No costs.
csh To
1) The Additional District Court, South Arcot District, Cuddalore
2) The Subordinate Court, Virudachalam