c MANI MANI AND ORS. v. MANI JOSHUA March 21, 1969 [J. c. SHAH AND A. N, GROVER, JJ.] fndian Succession Act (39 of 1925), s. 180–E/ection-Scope of. By a settlement deed of 1935, the owner of certain properties settled three itemll df property on his wife and two sons, the first appellant and respondent one item for each.
Mutations were effected of the properties so settled in favour of the donees. Thereafter, he had executed three wills. In his last will and testament, there are two recitals that he had cancelled the previous settlement deed and wills and that the last will was to be the only document which should govern the disposition of his pro- perties.
The testator, by that will, also purported to give to the respon- dent five items of property. ThOSe five items did not include the item settled on the respondent in 1935, but included certain properties which had been 'l"ttled in 1935 on the wifr and the first appellant. The testator
further stated that the entire residue was bequeathed to the first appellant, but did not state specifically that he was giving away to the first appellant the property which he had settled on the respondent in 1935. After the death of the testator the respondent filed a suit claiming the item settled on him in 1935, on the basis that he had a right under the will to get the five items bequeathed to him thereby, in addition to the item settled on b.im in 19"35, because, by reason of the
settlement in his favour it could not form the subject matter of the bequest in favour of the first appellant. On the question whether by accepting the benefit under the will by talcin_g the five items bequeathed· to him thereby, the respondent exercised his nght of election and precluded himselt •from asserting any right to the item settled on him in 1935.
HELD : Under s. 180 of the Indian Succession Act, if a legatee has been given any benefit under a will and his OlVn property has a/sc 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 relinG.uish / al1 his claims under the will if he choose 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 had no disposing power, unless, such an intention appears on the face of the will either by express wcrds or by necessary implication. [78 B-C]
In the prese.nt case, th~ terms of the will indicate, that the testator thought he could revoke the settlement deed and treat it as r.on..existent, and that he meant to dispose of the entire estate including the properties which had been the subject matter of the settlement of 193'i. The respon- dent, therefore, was put to election and could not claim the property settl· ed on him in- 1935, H he wished to take the benefit under the will. (76 C-D: 77 A-C, 79 GI
Miller v. Thurgood, 10 L.T.R. 255, Whitley v. Whitiey, 54 E.R. 1104: Re. Allen's Estate, Prescott v. Allen & Beaumont, (1945] 2 All. E.R. 264; and Re : Booker, Booker v. Booker, 54 L.T.R. 239, 242, referred to. SUPREME COUllT llEPORTS
[I 970] I S.C.R. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 683 of 1966. Appeal by special leave from the judgment and order dated January 3, I 965 of the Kerala High Court in Appeal Suit No. 86 1960.
S. V. Gupte and A. S. Nambiar, for the appellants. Sarjoo Prasad, P. Kesava Pillai, M. R. K. Pillai and Lily Thomas, for the respondent. The Judgment of the Court was delive~ by Grover, J. This is an appeal by special leave from a judgment of the Kerala High Court by which the suit instituted by the res- pondent for recovery of properties described in Schedule A of the plaint and for mesne profits etc. was decreed in reversal of the decree of the trial court, dismissing the suit.
Uthupu Mani who died in the year I 943 had three sons. The eldest son Uduppu died sometime between I 929 and 1935. The second son Joshua is the respondent herein, the appellants being the third son Mani Mani and Mariamma their mother and the
widow of Uthupu. Uthupu left some daughters also and appellant No. 3 Mani Achamma is one of the daughters. The controversy in the suit out of which the appeal has arisen was confined to a residential house in an area of I 0 cents in Kottayam town. This property along with several other properties originally belonged to Uthupu who made certain settlements followed by wills.
The first settlement was made in the year 1102 ME corresponding to 1927 AD when Uduppu was alive and Mani Mani was not born On October 9, 1935 by means of another registered document (Exh. A) called Udampady Uthupu settled properties thus: Those comprised in A Schedule were given to Mariamma, in B Schedule to Joshua and in C Schedule to Mani. The Schedules r.ontained the following properties :
"To Mariamma (A Schedule\ Building construct.ed as Hall and the Cart-shed on 2 cents. To Joshua ( B Schedule) Storied building and 30 cents garden land. To Mani Mani (C Schedule) Four rooms facing West and 36 cents of garden land."
It appears and it has been so found that mutations were effected of the properties so settled in favour of the donees. Later on ~t.hupu executed a will. w~ich he.put in an envelope and deposited it m the office of the District Registrar, Kottayam in January 1943. c
c MANI MANI V. MANI JOSHUA (Grover, J.) He executed a second will in April 1943 and kept it in custody of the District Registrar. He executed a third will (Exh. 3) on May 31, 1943 which was his last will and testament. In this will he made a mention of the two settlements and the two previous wills and declared that the last will would be final and operative. His other declarations and statements in the will (Exh. 3) will be presently considered as the entire controversy in the present litiga- tion centers on a correct assessment and appraisal of their true scope and effect.
It may be mentioned that by this will he left five items of properties to Joshua. These items include<l the properties in C Schedule which had been given to Mani by the settlement of 1935 and the cartshed on two cents of land c:>n- tained in Schedule A which had been given to Mariamma by ti1at settlement. There was no specific mention in the will (Exh. 3) to the B Schedule properties which had been settled on Joshua in 1935.
In 1955 Joshua filed a suit laying claim to the B Sch~dule properties settled on him in the year 1935. His case was founded principally on the allegation that B Schedule properties which had been settled on him in 1935 vested in him by virtue of the settle- ment and he was the owner thereof and that the five items of pro- perties which were left by the will (Exh. 3) were quite indepe.n- dent of and separate from the aforesaid B Schedule properties. In other words he asserted that he had a right under the will to get the five items bequeathed to him therein in addition to the B Schedule properties which had been settled on him in the year 1935 and which could not form the subject matter of any bequest by Uthupu by reason of the said settlement. The position taken up on behalf of Mariamma, Mani etc.-the defendants–was that the plaintiff had accepted the benefit under the will by taking the five items of properties bequeathed to him thereby which included the properties originally allotted under the settlement of 1935 to Mariamma and Mani. He had thus exercised his right of election to take the properties under the will and was precluded from asserting any right to properties given to him under the settlement of 1935.
A number of issues were framed on the pleadings of the par- ties. The main question for consideration, howevu, was whether the settlement of 1935 had been given effect to and whether the plaintiff's suit merited dismissal on account of the applicability of the doctrine of election embodied in s. 180 of the Indian Succes- sion Act.
The trial court held that the settlement of 1935 had been given effect to and mutations had been duly made in the revenue register in accordance with the settlement deed. [t was found that the plaintiff had obtained title to and possession of the Ll2S.,pCl/6~ -U
SUPRl!ME COURT REPORTS [1970] I S.C.R. suit properties comprised in B Schedule in the settlement of 1935. The suit was dismissed on the grcund that the will (Exh. 3) clearly showed that the testator purported to cancel the arrange- ment by th". deed of settle~ent of 1935 and had made bequests under the will to the plamttff of some of the properties which had been settled on Mariamma and Mani in the year 1935. This
attracted the rule contained in s. 180 of the Succession Act and since the plaintiff had elected to accept the benefit under the will he was not entitled to claim any right on the basis of the deed of settlement of 1935.
T~ High Court acceded to the argument pressed on behalf ef Joshua who was the appellant before it that on a proper read- ing of the will it could not be held that the testator professed to dispose of the suit properties which had been gifted to the plaintiff by means of the settlement deed cf 1935.
The High Court was influenced by the fact that there was no specific mention of these properties in the will and according to it mere general words of disposition could not be taken to contain an intention to deal with the properties belonging to a third party, namely, the plaintiff. The following part of the judgment may be reproduced :
"Having due regard to these passages in the vari011s text-books based upon judicial decisions and which have been placed before me by Mr. T. S. Krishnamoorthy Iyer and Mr. M. U. Issac in my view, the decision ren-
dered by the learned Subordinate Judg~ that section 180 of the Indian Succession Act applied and that the appel- lant has elected to take the benefit under the will and therefore he cannot claim any further benefits on the
basis of Ex. A, cannot certainly be sustained. So far as I could see, there is no specific disposition of the pro- perty already given to the plaintiff under Ex. A. by the father in Ex. 3.
No doubt the father has dealt with an item which was given under Ex. A to the first defendant and a part of the item given to the 2nd defendant under Ex. A in Ex. 3. If at all the question of the doctrine of
election and the applicability of section 180 of the Indian Succession Act comes into play, in my view, the election will really have to be made, not, by the plain- till, but by really defendants one and two."
As the applicability of the doctrine of the rule of election will depend on a correct and true reading of the will ( Exh. 3 ) we pro- ceecl to notice the main recitals and other oromincnt features to be found in it The testator in the very beliinning referred to the two eeulcments made by him in the years 1927 and 1935 and
c c MANI MANI v. MANI JOSHUA (Grover,/.) the two wills executed by him in the year 1943 which were deposited with the District Registrar, Kottayam. He said that by the first will which he had executed he had invalidated the two deeds of settlement. He then made the second will as he thought that some changes were necessary. The third will, (Exh. 3), wu lll&de because be felt pity for Joshua whom he bad apparently left no or very little property by bis "previous wills. This is What the testator said :
"But, since there originated in me an idea, on see- ing the desperate look and repentant attitude of my .son Joshua, that it is highly necessary to nullify certain his- toric st:ltements made in the pre_vi,ous will and also to
alter the conditions, such as share of my ass.els will not be given to Joshua and to bis children in case he begets any, laid down by me owing to the ill-will I had towards Joshua, the eldest among the male children I have at
present and towards the mer.1bers of his wife's house because of certain reasons which I don't now purport to describe herein, this will is executed again· afresh; and this alone will come into force after my life-time."
He further said that he had seven children alive at the time when the will was made, namely two sons and five daughters out- of whom two were married. He directed that after his death 'his wife Marianima would take the entire income from his properties· for meeting fanilly expenses and payment of revenue dues elic. Then he made dispositions about payments in cash on the occa- sion of the marriages of his other daughters, with the exception of Achamma, who was described to be weak in health, and in his opinion,
should not contract matrimony. An amount of Rs. 3,000/- Wils to be deposited in her name which she was en- titled to .withdraw if she wa8 married. During the period lilt remained unmarried she was entitled to take interest on that deposit for personal expenses.
He gave other directions abollt arrangements for her residence etc. in case she· remaine<I un- married. Then he proceeded to make the provision about bequests in these words ; ''Though r had provided in my previous will that
my eldest son JQShua shall have only some right in tho nature of a life interest over my assets in respect of some· petty items of profits; ………… Therefore I have forgiven him and I hereby allow him to enjoy for ever
the immovable properties described hereunder; and my younger son Mani Mani shall alone be the sole heir ·of the remaining entire asBels belonging to me. But, my two sons shall become entitled to the properties allotted
7 i [ 1970] I S.C.R. to them only after my two daught~rs are married and the depo;it is made in Achamma's name and all the htigations in which I am a party are ended; and till that
time my wife Maria:nma shall take and conserve all the profits ~' described above in che status of an un- divided family." The only other declaration or statement in the will which deserves notice is the following :
"This will is execut:W by resolving as these and totally changing all the deeds registered by me prior to this and the Wills kept in custody; and this Will aione shall, unless I act otherwise, be and ought to be in force in future."
Now it is quite clear that the testator was somehow under the impression that he was competent to cancel and revoke not only the previous wills but also the two settlements including the one made in the year 1935. It appears that although by the registered deed of 1935 he had gifted certain properties to his wife and two sons he thought that he could undo what he had done by making a will by which he left virtually no property to Joshua since he was annoyed with him.
That is apparently the reason why he clearly stated in the will (Exh. 3) in the very beginning that he had executed a will "on 9th Makarom this year in accordance with law, invalidating the above two deeds."
He relented in favour of Joshua and that is the reason why he made the will (Exh. 3) but his state of mind continued to be the same, namely, he considered that he was fully competent and entitled to cancel all previous settlements and wills and start, as if it were, on a clean slate. The detailed bequests which he made (Exh. 3) indicate that ho me.mt to dispose of the entire estate including the properties which had been the subject matter of the settlement made in the year 1935. There are two strong indica- tions in the will (Exh. 3) of his having dealt with the entire pro- perty which he thought he could dispose of or in respect of which he could make bequests and leave legacies on the footing that no title had passed to any of the donees under tho settlement of 1935. The first is the recital both in the beginning and towards the con- cluding part of Exh. 3 that he had cancelled the previous settle- ments and wills and that the only document which would govern the disposition of propenies would be Exh. 3.
Even if it be assumed, as has been suggested, by learned counsel for Joshua -respondent-that the declaration about invalidating the two deeds of settlement was confined to the first will executed in January 1943, the <tatement made towards the conclusion of the c
c MANI MANI v. MANI JOSHUA (Grover, I.) will (Exh. 3) leaves no doubt that the testator sought to revoke not only the previous wills but also the registered deeds which clearly meant th~ deeds of settlement executed in 1927 and 1935 respectively. The second significant fact is that the testator pur- ported to give to Joshua five items of property which included certain properties which had been given by the settlement of 1935 to Mariamma and Mani. If the testator did not want to make any disposition of those properties which formed the subject matter of gift in 1935 there was no reason why he should have given to Joshua properties which had been gifted to Mariamma and Mani. All this could have happened only if the testator .was treating the settlement of 1935 as non-existent having been revoked 'by him. We are satisfied that a correct reading of the will (Exh. 3) yields the only result that the testator Uthupu treated the entire proper- ties which had formed the subject matter of gift or otherwise as his and which could be disposed of by him as he liked. The High Court was in error in disagreeing with the trial court on this matter.
The argument of learned coumel for the respondent is that the testator predominently intended to l!)ake better provision for Joshua with whom he had been annoyed for various reasons and whom he had left comparatively .Jess or no property by the wills executed prior to Exh. 3. It is suggested that the testator could not have intended to have taken away what had already beC1;1 gifted to Joshua in the year 1935 of which mutation had tak;en place and possession had passed. It is further pointed out that the testator did not specifically say that the properties which had been gifted to Joshua in 1935 were now being left by the will (Exh. 3) to Mani. . A great deal of reliance has been placed on the statement in the text books on which the High Court relied and certain decisions for the view that no case for election can arise where the testator does not dispose of the properties in ques- tion specifically and has merely used general words of devise. Ca
such circumstances, it has been stated, the testator should be take• to have disposed of only that property which was his own and which he was entitled to deal with and bequeath in law.
It is urged that, in the present case, the testator bad already made a valid and legal settlement in 1935 of the suit property. He could not have thus ·dealt with or bequeathed that property and in the absence of express and specific mention in Exh. 3 that he was doing so the rule of election would not be attracted.
The circumstances in which election takes place are se• out in s. 180 of the Inclian Succession Act. According to its provi- sions, "where a person by bis will professes to dispose of some- SUPREME COllRT REPORTS
[1970) I S.C.R. tiring 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 bmefita which may have been provided for him by the will." The English law, however, applies the principle of compensation allo to election. It means the electing legatee has to compensate the Qisappointed legatee out of the property given to him. As
pointed out in the Indian Succession Act by N. C. Sen Gupta, p. 295, the rule which has been embodied in s. 180 does not recognise the principle of compensation. Under its provisions if
the legatee has been given any benefit under the will and his :>wn p1operty has also been di~po51:<1 of by that very will he must relinquish all his claims under the will if he chooses to retain his property. It is not disputed, in the present case, that if the testa- tor has, by Exh. 3, disposed of the property which had been gifted to Joshua the rule embodied in s. 180 would become applicable and Joshua cannot take the property which had been gifted to him if he has chosen to retain the property bequeathed to him by the will. The question is whether the testator having omitted to state in &h. 3 that he was giving away the properties which had been gifted to Joshua in the year 1935 to Mani to whom only a resi- duary bequest of the entire remaining assets had been made the principle of election will become inapplicable.
Our attention has been invited on behalf of Joshua to the following observation of the Master of Rolls in Miller v. Thurgood(') : "If a testator, having an undivided interest in any
particular property, disposes of it specifically, and gives to the CO-Owner of the property a benefit under his will, the question of election arises. But if he disposes of it, not specifically, but only under general words, no ques-
tion of election arises." But as pointed out in para. 1097, p. 592, Ha/sbury's Laws of England, Vol. 14, in order to raise a case of election under a will it muat be clearly shown that the testator intended to dispose of the particular property over which he had no disposing power. This intention must .appear on the face of the will either by express words or by necessary conclusion from the circumstances dis- closed by the will. Tiie presumption, however, is that a testator intends to dispose of his own property and general words will not llSllally be construed so as to include other property. In Whitley v. Whitley(') the wife of the testator was entitled to a share of the produce of the R. estate, which had been directed to be sold. By {I) JO L. T. R. 255.
(2) 54 E. R. 1104. c c MANI MANI v. MANI JOSHUA (Grov1r, 1.) bis will the testator gave all "his share, estate and interest" in the R. estate to his daughter and benefit out of his own estate to his widow.
It was held that the will raised a case for election as against the widow. The Master of the Rolis (Sir John Romilly) said that the testator intended to dispose of the property by will which was not his but belonged to his wife and she having taken and enjoyed the benefit provided for her under his will must be considered as having elected.
The property, must, therefore go as if it had been the testator's property. This case illustrates b.<iw the rule of election has been applied where, even though, general words had been used but by necessary conclusion from the circum- stances disclosed by the will it was inferred that the testator intended to dispose of the property which belonged to his wife and not to him. According to the footnote in Halsbury's Laws of England, Vol.
14 (supra), in the case of a will one may even gather an intention by the testator to include property belonging to another in a gift of residue for it is necessary to construe a will as a whole.
Reference has been made to Re Allen's Estate, Prescott v. Allen Cl1ld Beaumont('), where a gift of the "residue of my property" was constru~d as the residµe of the testator's ostensible property. fairly strict approach in such cases has bee!I( indicated by Chitty 1., in Re Booker; Booker v. Booker(') in these words :
"A great safeguard in applying that doctrine is thls–that you are not merely to strain words to make them include ·that which does not belong to the testator; but you must be satisfied beyond all reasonable doubt
that it was his intention to include that which was not his own, and that you cannot impute to him after having read his will any other intention." It is thus necessary to look at the will and read it carefully which has been done by us and we have no· manner of doubt that
Uthupu, the testator, intended to include properties gifted to Joshua by the settlement of 1935 in the bequest which he made to Mani of the entire residue. Joshua was thus put to election
and could not claim those properties if he wished to take the benefit under the will. . In the r~sult the. appeal is allowed and the judgment of the High Court 1s set aside and that of the trial court restored with costs in this Court.
V.P.S. Appeal allowed. ——— (1) [1945) 2 AIL E. R, 264, (2) 54 L. T. R, 239, 242,