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IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Vasant Narayan Khakhanis ..... Appellant.
Versus
Mrs. Prabhavati Balchandra Harjarnis,
since deceased by heirs others..... Respondents.
Second Appeal No. 499 of 1987, decided on 5/6-4-1999.
Advocates appeared :
R.S. Chitnis i/by Crawford Bayley Co., for appellant.
R.S. Ante i/by Dalmiya Co., for respondent Nos. 1(A) to 1(D).
Deenal Chitnis i/b Chitnis Vaithy, for respondent No. 2.
However, two persons may also agree to make mutual will revocable. A joint will, on the other hand is a will made by two or more testators contained in a single instrument duly executed by each testator disposing of either of their separate property or their joint property. By a joint will is meant a single instrument by which two persons give effect to their testamentary wishes. Such a will is revocable at any time by either of them or by survivor. But in certain cases it is enforced in equity as contract where there is a joint interest, on the death of the first testator the position of the part of the property which belongs to the survivor is treated as holding the property on trust to apply it so far as to carry out the effect of the joint will. If the survivor takes the benefit conferred on him by the joint will he or she will be appointed as a trustee and would not be allowed to do anything inconsistent with the provisions of the joint will.
Will
Joint Mutual Will-For a joint mutual Will to be irrevocable it is necessary that under the Will the surviving testator must have received benefits from the deceased under the mutual Will and the mutual Will should have been executed pursuant to an agreement that the testator shall not revoke the mutual Will-Both of which conditions must be concurrently satisfied.-In order to render a joint mutual Will irrevocable, it is settled law that two conditions, namely, (i) that the surviving testator must have received benefits from the deceased under the mutual Will and (ii) the mutual Will should have been executed pursuant to an agreement that the testator should not revoke the mutual Will; must be concurrently satisfied. Whether there was an agreement to revoke the Will or not may be proved either from the Will or may be proved outside the Will.
The English Translation of the relevant recitals in the Will in question executed on 17.1.1963 read with :
"This will is executed by Shri (1) Narayan Kashinath Karkhanis, pensioner, approximately 73 years of age residing at Erandavane, House No. 3318 Pune No.4 (2) Ramabai w/o Narayan Karkhanis, housewife approximately 67 years of age residing at Erandavane, House No. 33-18 Pune No.4, we have made our this Will as aforesaid .... We are not owners of any ancestral property. We have purchased a property in Deccan Gymkhana Cooperative Housing Society which is situate at and post Pune Tal. Haveli within the registration district of Pune City, and which is situated within the limit of Pune Municipal Corporation at Pet Erandavane bearing City Survey No. 33-18, Pune in which we have constructed a bungalow, about 27 years ago. The said bungalow is situated at Prabhat Road, Near Canal Road. We are occupying some portion of the said bungalow, while the rest of the portion is given on rent. We have developed the said property from the money which remained with us and also from selling the gold ornaments belonging to the Executor No.2, (which is known as her stridhan). Accordingly this is our self-acquired and owned property. On this property apart from us no other person have any right and/or interest and/ or any inheritance .... By this Will both of us after our death appoint our two sons and two daughters as a joint owner of the said property, which means that each one of them will have 1/4 equal share in the said property, as per Hindu Succession Act all of them will be the owner of the said property as our legal heirs. After our death they should take possession of the said property as joint owners thereof.... During our lifetime we will continue to be the owners of the said property and we have bequeathed the said property as we are entitled to dispose of the same. The said arrangement shall come into effect only after our death."
Held, that the expression used in the Will "during our lifetime we will continue to be the owners of the said property" is suggestive that the ownership which the joint executants contemplated was the user during the lifetime and it was this ownership which was to devolve on the death of either of them to the survivor. This becomes further clear from the use expression "the said arrangement shall come into effect only after our death." The intention of the executants, therefore, was to keep the said property intact for the benefit and enjoyment of the ultimate legatees and during the lifetime of either of them the property was not in any manner to be parted with or diminished. This is reflected from the statement made in the Will "we further desire that our sons and daughters after us become the full owners of our self-acquired property. ... " and in clause 5 of the Will, "by this Will both of us after our death appoint our two sons and daughters as joint owner of the said property .... " The circumstances, therefore, in the Will clearly indicate that both the executants of the Will agreed to not to revoke the Will after he or she has received the benefit under the Will on the death of either of them. The underlying intention of the executants is categorical and clear and that is that either of them shall not revoke the Will and the suit property must after the death of the executants fall on the two sons and two daughters. So long as both the executants were alive, the executants could revoke the Will but the tenor of the Will and the various clauses therein were suggestive of their intention and they agreed not to revoke the Will after the death of anyone of them. For a Will to be a mutual Will two conditions must be concurrently satisfied i.e. surviving testator or testatrix has derived some benefit from the deceased under the mutual Will and that there must be an agreement between the executants that such Will shall not be revoked. The first condition was satisfied in the present case inasmuch as after the death of N, the surviving testatrix Ramabai was in full and exclusive enjoyment of the said property. Of course such exclusive enjoyment and user was during her lifetime but nevertheless that was the benefit received by R from N under the Will. The second condition that there must be an agreement between the executants to not to revoke the Will, the various clauses indicate the intentions between them that the property should as it is, after the death of executants go in the hands of their sons and daughters. The intention of the testator and testatrix in not revoking the Will after the death of one of them is evidenced from the language used. On true construction of the Will dated 17.1.1963 in its proper light, it can be concluded that the said Will dated 17.1.1963 is joint and mutual Will and both the conditions necessary for such Will being mutual Will be full satisfied. The Will dated 17.1.1963 being joint and mutual Will, and intention of the executants being to keep the property intact till the death of both the executants to enable the property to go in the hands of the ultimate legatees i.e. all sons and daughters being very clear, the Will dated 25.7.1974 executed by wife R after the death of her husband was rendered useless and of no legal consequence.
2.The suit property is the bungalow known as Laxmi Kunj built on City Survey No. 33/1B of Erandavane on the plot obtained on permanent lease from Deccan Gymkhana Co-op. Housing Society Ltd. in Pune. One Narayan Kashinath Karkhanis (for short Narayan) obtained the said plot on permanent lease. The bungalow thereon was constructed by him from his own earnings as well as from the funds of his wife Ramabai. He died on 16-4-1968 and his wife Ramabai died somewhere in the year 1977. The original plaintiff Sou. Prabhavati Bhalchandra Hajarnis, the original defendant No. 1 Vasant Narayan Kharkhanis, the original defendant No. 3 Gopal Narayan Karkhanis and the original defendant No. 2 Sou. Sumati Yeshwant Mathure are sons and daughters of Narayan and Ramabai. Narayan is alleged to have executed the Will bequeathing the aforesaid property in favour of his wife Ramabai on 21-1-1956. Later on the said Will is said to have been revoked by execution of the Will dated 17-1-1963 which was jointly executed by Narayan and his wife Ramabai. After death of Narayan on 16-4-1968, his wife Ramabai is said to have revoked the said Will (though according to original plaintiff Ramabai could not have revoked the said Will) and executed her last Will on 25-7-1974. By the Will dated 17-1-1963, according to the original plaintiff, on death of her parents, namely, Narayan and Ramabai, she claims to have acquired ¼th share in the suit property and despite her efforts when the defendants who are brothers and sister refused to give her ¼th share as per the Will dated 17-1-1963, she filed the suit claiming joint possession of ¼th share in the suit property and in the alternative for the sale of the suit property and allotment of ¼th price amount to her. The original defendant No. 1 contested the suit and denied that his father Narayan and Ramabai executed the last Will dated 17-1-1963 by giving joint ¼th share each to the plaintiff and the defendants. He set forth the defence that the said Will dated 17-1-1963 was not the last Will but subsequent to that Will, after the death of Narayan, Smt. Ramabai became the absolute owner of the suit property and Smt. Ramabai by her Will dated 25-7-1974 bequeathed the suit property to the original defendant Nos. 1 and 2 by revoking the Joint Will dated 17-1-1963. The defendant No. 1 also set forth the defence that the said Will dated 17-1-63 was got executed under coercion and undue influence and, therefore, it was not valid Will. According to him, Narayan has executed the Will dated 21-1-1956 bequeathing the entire suit property in favour of his wife and after death of Narayan, his wife became absolute owner who bequeathed property in favour of original defendant Nos. 1 and 2 by her last Will dated 25-7-1974. The original defendant No. 2 filed separate written statement denied that his mother Ramabai contributed anything towards the cost of construction of the suit property. His defence was otherwise similar and identical to the defence set up by original defendant No. 1. On the basis of the pleadings of the parties, the trial Court framed various issues and after recording the evidence dismissed plaintiff's suit on 31-8-1984. The original plaintiff carried the matter in appeal and the Appellate Court after hearing the learned Counsel for the parties allowed the appeal in part, set aside the judgment and decree passed by the trial Court and declared that original plaintiff has joint 1/8th share in the suit property. The judgment and decree passed by the Appellate Court on 20-12-1986 is under challenge in second appeal at the instance of the original defendant No. 1 whereby 1/8th share in the suit property has been declared in favour of original plaintiff and is under attack in cross objections at the instance of the original plaintiff by contending
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