Paragraph numbers below are the court’s original numbering, recovered from the source text.
45. In one more part of the Will which is appended at the end ' after description of the properties is relevant, which is to the following effect:- " … If any property has been left out, then the same, any property purchased then they also, and if any property is sold by deleting the same, the remaining properties form part of this document .. "
46. The above provision in the Will clearly intends that any property purchased shall treated to be added In the document and further any property sold shall be deleted from the document and the remaining properties form part of this document.
47. The above statement clearly contemplates possibility of sale of any property which shall be deleted from the description of the A properties as mentioned in the document. One more aspect of the Will needs to be noted. As extracted above, in the last part of the third paragraph after 'his/her lifetime' word used are "and carry on under mentioned charities from and out of the income derived from them without alienating the same". Reading the whole paragraph together the word 'his/her c lifetime' has been used in reference to survivor who survives after the death of one of the spouses. Thus, after the death of survivor, the Will contemplates that charities shall be carried out of the income derived from the property without alienating the same. Thus, though in the same paragraph, after the death of both the testators, the charities are required to be carried out from the income derived from the properties without alienation of the same, whereas the same restriction i.e. "without alienation" has not been put in the earlier sentence of the same paragraph when the rights of survivor have been referred to as 'absolutely with all the rights'.
48. High Court in its judgment has cut down/abridged the D expression 'absolutely' on the ground of mutual intention of the parties in paragraph 66 of the judgment. High Court, however, at the same time has held that expression 'absolute enjoyment' as employed in the Will as a sort of comfort or cushion to the survivor who meets with an unforeseen or unexpected contingencies, if any absolute necessity arises. Following was stated in paragraph 66:- "66 … we are therefore of the view that the said expression 'absolute enjoyment' as employed in the Will as a sort of comfort or cushion to the survivor to meet any unforeseen or unexpected contingencies if any absolute necessity arises but, at the same time, it cannot be stated that the bequest in favour of charities is a mere wish and an absolute interest was granted in favour of the survivor. We therefore hold that the meaning of the expression 'absolutely' should be cut down or abridged considering the mutual intention between the executants in making the Will and there are indications in the Will itself to curtail the full implication and import of the expression 'absolutely' when it is used with reference to the survivor …
49. The intention in testamentary disposition has to be primarily found out from the actual words used in the Will. The court is not entitled DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL AND CITIZENS OF GOBICHETTIPALAYAM [ASHOKBHUSHAN, J.] to ignore clear words or add something of its own or dilute the meaning A of any clear word used in the Will. The solemn duty of the court is to find out the intention of testator and thereafter to give effect to such intention. On the reading of the Will, the intendment of testator/testatrix is clear that survivor shall have absolute right of enjoyment of properties. There is no reason not to give effect to said intendment on the ground that the testator and testatrix have mutually intended to set apart the property for charity and holding that survivor shall have right of disposition be not in the interest of the trust.
50. We do not find any word or any indication in the Will to give a life estate to survivor. The Will clearly intended that survivor shall have c absolute right to the properties and after his/her death; the charity shall be carried out from the income of the properties without alienation of the properties. High Court itself has noticed that testator was a person who was well versed with the law of Wills since two earlier Wills were already executed by Chettiar.
51. We are of the view that testators intended that survivor should D be given right of alienation. Why the same word "without right of alienation" could not have been used in the earlier part of the same paragraph when they used the same word in end of the paragraph while providing for carrying out charities after the death of the survivor from the income derived from the properties without alienating the same.
52. We, thus, are of the clear opinion that the Will intended to give survivor absolute right with regard to properties with further intendment that after the death of survivor, the remaining property should be used for carrying out the charities. The clear intention of testator/testatrix while executing the Will that the charity shall be carried out from the income of the properties is not given up even during life time of survivor. The obligation to use the income of properties for charity is attached with the property described in the Will subject to giving survivor absolute right with regard to properties.
53. In the above context, exposition oflaw in reference to a mutual Will by Australian High Court in a case Birmingham & ors. Vs. Renfrew & Ors., 57 Commonwealth Law Report 666, needs to be referred.
54. In the above cases Dixon J. while delivering a concurring opinion elaborated the concept of mutual Will, he has referred to a third A element to be inherent in nature of mutual Will which according to Dixon J. had not been earlier expressly considered. Dixon J. stated the third element in the following words:- c " … There is a third element which appears to me to be inherent the nature of such a contract or agreement, although I do not think it has been expressly considered. The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he chooses. But when he dies he is· to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivas, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivors own benefit and advantage upon condition that at his death the residue shall pass as arranged. .. "
55. Dixon J. as noted above has held that survivor during lifetime can deal as absolute owner of the property but when he dies, he is to bequeath what is left in the manner agreed upon. The obligation to utilize the property in a manner agreed upon descends upon the asset on the death of survivor and the right of disposition is not unqualified but has to be in accord with manner of disposition.
56. As noted above, the High court in paragraph 66 of the judgment also had considered that expression absolute enjoyment as employed in G the Will was a sort of comfort or cushion to the survivor to meet with any unforeseen or unexpected contingencies, if any necessity arises.
57. We, thus, are of the view that giving absolute right to the survivor during his lifetime to deal with the properties in no manner cannot be said to be right given in disregard of object of trust. The charitable DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL AND CITIZENS OF GOBICHETTIPALAYAM [ ASHOKBHUSHAN, J.] purpose of the Will is not lost even if survivor is given absolute right. The A obligation of survivor to act in furtherance of object as agreed by both the testators survives and binds the survivor. Although the Will was irrevocable after the death of survivor but the Will expressly granted absolute right to survivor.
58. In view of the foregoing discussion, we endorse the view of B High Court that the Will dated27.9.l 968 was a joint and mutual Will, but with a rider that said joint and mutual Will was with an express condition that survivor shall have absolute right to deal with the property keeping the object of trust alive. Giving ofright of disposition to the survivor was also one of the joint decision and agreement between the testator and testatrix which does not diminish the nature and character of Will as joint and mutual Will.
59. Thus, in the present case, unless the alienation by the survivor i.e. Rangammal is held to be completely in breach of object of trust and fraud on trust, the Court is to be slow in disregarding such alienations. In the suit filed by the plaintiff although reference to alienation made by D Rangammal were made and the High Court in its judgment in paragraph 81 has detailed the alienation but the challenge to the alienation before the trial court as well as before the High Court was only on the ground that Rangammal was not competent to alienate the property mentioned jn the Will after the death of Palaniappa Chettiar.
60. We are thus of the view that the alienation made by Rangammal in favour of appellants could not have been declared null and void as has been done by the High Court. Alienation made by Rangammal during her lifetime after the death of Palaniappa Chettiar was fully covered by paragraph 3 of the Will as noted above.
61. We are thus of the view that the decision of the High Court in so far as in declaring the alienation made by Smt. Rangammal after the death of Palaniappa Chettiar during her lifetime as null and void deserves to be set aside. Thus alienation made by Smt. Rangammal by registered sale deeds as noticed by the High Court in favour of appellants needs to be deleted from the list of the properties as described in the plaint and they shall not be included in the trust property by virtue of the Will deed dated 27 .09.1968. We, however, add that said deletion is only with regar<l to alienations made by Smt. Rangammal and not to the alienations made by defendant no. 4 & 5. The Declaration made by the High Court in so A far as alienations made by defendant no. 4 & 5 as null and void are maintained. c Creation of Trust by Will dated 27.9.1968
62. The High court has elaborately dealt with the matter ofcreation of Trust by Will in paragraphs 79 to 80 of the judgment.
63. While not.icing the nature and contents of the Will, we have noted above that in the life time of survivor charities have to be carried out from the income derived from properties witliout alienating the same. With regard to the charities, the Will states that during life time of testator and testatrix the properties shall be managed by themselves and desired charities be carried out either jointly or individually and in case testator and testatrix are not in a position to carry out the charity during their life time a committee consisting of three members shall perform charity. Following statement in the Will is relevant: "During our life time we shall manage the property ourselves, do the desired charities either jointly or individually. In case we are not ·in a position to carry out the desired. cllarities during our life time, a committee consisting of the following authorities shall be formed to carry out the foll owing charities:. "
64. A complete reading of the Will indicates that although the testator and testatrix intended to utilise their properties to carry out charities after their life, the Trust as contemplated by the Will to come in operation in following manner: (I} During the life time of testator/testatrix in the event they were not in a position to carry out the desired charity the committee consisting of the Endowment Commissione,r, Revenue Divisional Officer, Gobichettipalayam and District Munsif, Gobichettipalayam shall carry out the charities. (2) After the death of both testator r111d testatrix, the committee of three members as noted above shall perform the charities.
65. There is no pleading or material on record to indicate that during life time of Palaniappa Chettiar or Rangammal at any point of DR. K. S. PALANISAMI (DEAD) v. HINDU COMMUNITY IN GENERAL AND CITIZENS OF GOBICHETTIPALAYAM [ASH OK BHUSHAN, J.] time they expressed their inability to carry out the charity or had requested A the three members' committee to carry out the charity. Thus, above eventuality as contemplated by the Will never came into existence during the life time of Palaniappa Chettiar and Rangammal but as per provisions of the Will dated 27.9.1968 on the death of survivor i.e. Rangammal on 27 .12.1980, the three members committee was obliged to carry out the charities and the Trust came into operation. Will dated 27.11.1980
66. The trial court framed specific issue No.13 to the following effect: ' "13. Whether the Will dated 2 7.11.1980 executed in favour of C the defendants 4, 5 is genuine and valid ? Whether Chinnammal @ RangammaL had executed that document in a sound and disposing state of mind ?
67. Issue No.13 was dealt with in great detail by the trial court after considering the entire documentary and orat evidence on records. Defendant NosA and 5 have examined the testators as DW.2 ~nd DW.4, scribe as DW.3 and a Sub-Registrar for proving the Will as DW.6.
68. After considering the oral evidence the trial court held that the Will is not proved. The trial court noticed several suspicious c.ircurnstances and discrepancies and it was held that Ex.D-109 has not been executed by Rangammal in a sound and disposing state of mind and the same is not a true and.valid document. Defendant Nos.4 and 5 had filed A..S. No.606/1989 challenging the judgment of the trial court. The said appeal was elaborately considered by the High Court in its judgment in paragraphs 86 to.114. The High Court came to the conclusion that Will dated 27 .11.1980 alleged to have.been executed by Rangammal is not a true and genuine Will of her. The said conclusion has been arrived at by the High Court afte~ considering entire evidence on record. We find no infirmity in the aforesaid conclusion. The appeal filed by defendant Nos. 4 and 5 has rightly been dismissed. We see no reason to interfere in the judgment of the High Court so far as dismissal of A.S.No.606of1989. Reliefs I. We have come to the conclusion that Smt. Rangammal- testatrix has the absolute right to deal with the properties mentioned in the Will and alienations made by her during her life time are saved byth,e Will H _ · A and the judgment of the High Court holding sales in favour of the appellant as null and void is unsustainable and is hereby set aside. Civil Appeal Nos.5924 of 2005, 5925 of 2005 and 5926 of 2005 are partly allowed and following sale deeds are deleted from the description of the property in the plaint. The Trust shall not include following sale deeds: (i) Sale deed in favour of Dr. K.S. Palanisami, defendant No.13 c dated 11.5 .1979, Schedule II, Item No.15 and 16. (ii) Sale deed in favour of defendant Nos.4 and 5 dated 19.9.1972 and 30.9.1972, second Schedule, Item Nos. 5 and 6 (Ex.B-28 and Ex.B- 29). · (iii) Sale deed dated 24.3.1977, first Schedule, Item No.6, in favour ofThirugnanasambandam, defendant No.7 (Ex.B-116) and (iv) Sale deed in favour of Dr. M.R. Subbian dated 20.2.1970, Schedule II, Item No.2 and 7 (Ex.B-114). We, however, make it clear that the judgment of the High Court declaring sale deeds executed by defendant Nos.4 and 5 as null and void is maintained. All alienations made by defendant Nos.4 and 5 are null and void and those properties shall be treated as part of the Trust property. II. Civil Appeal No. 6469 of2005 stands dismissed. III. The directions issued by the High Court in paragraph 116 are maintained subject to directions-I as made above. Judicial Officer having jurisdiction over the case who has been directed by the High Court to frame the scheme for the Trust shall frame the scheme expeditiously preferably within a period of three months from the date a copy of this F judgment is produced before him. It goes without saying that all steps for identification, protection and management of Trust property shall be undertaken by all concerned.
69. All the appeals are decided accordingly. Devika Gujral Appeals disposed of.