Wills must be interpreted based on reciprocity; unilateral cancellation of a settlement deed is impermissible, confirming rights of the beneficiary following a valid execution.

JUDGMENT

EASWARAN S., J.

1. The plaintiff in a suit for partition has come up with the present appeal, aggrieved by the dismissal of the suit concurrently by the courts below.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1 The plaint schedule property originally belonged to one Narayanan and Devaki. Narayanan and Devaki purchased the aforesaid property having an extent of 81 cents by sale deed No.675/68 of SRO Ernakulam. During the lifetime of Narayanan and Devaki, they together executed a Joint Will on 23.01.1992 as Will No. 7/III/1992. In terms of the Will, both Narayanan and Devaki bequeathed their respective shares in the property in favour of their sons, defendants 2 to 6. Narayanan died intestate on 05.12.1995. After the death of Narayanan, Devaki executed a registered settlement deed No.1709/97 of SRO Maradu, in favour of her daughters, namely the plaintiff and defendants 7 to 9, assigning her entire share. However, it appears that late Devaki proceeded to cancel the settlement deed by way of a Revocation Deed on 11.08.1997 by conferring her right in favour of her sons. Claiming that the plaintiff and the defendants are in joint possession of the property, the suit was instituted by the appellant seeking a partition of the plaint schedule property by metes and bounds, allocating 15/80 share in the plaint scheduled property. The defendants resisted the suit contending that the suit is not maintainable. It was further contended that the Will in question is a joint and mutual Will and therefore one of the testators, namely the 1^st defendant, could not have settled her share in favour of her daughters. Further contended that the execution of the settlement deed was vitiated because of fraud exerted on the part of the plaintiff and immediately after realising the same, the 1^st defendant cancelled the deed. On behalf of the plaintiff, Exts.A1 and A2 were produced and PW1 and PW2 were examined. On behalf of the defendants, Exts.B1 to B5 were produced and DW1 to DW3 were examined. Ext.X1 is the certified copy of the Will produced from the Sub Registrar Office and Ext.X2 is the tax receipt produced by the Secretary of Kumbalam Grama Panchayat.

2.2 The trial court framed the following issues for consideration:-

1) Is the property partible?

2) Whether plaintiff is entitled to get partition of plaint schedule property?

3) If so what is her share?

4) Whether plaintiff is entitled to get mesne profits?

5) Relief and costs?

2.3 Apart from the above additional issues were also framed, which are as follows:-

6) Whether will No.7/1992 of SRO Maradu is a genuine one?

7) Whether settlement deed No.1709/97 of SRO Maradu (Ext.A2) is a genuine one?

8) Whether revocation deed No.2617/1992 Maradu SRO (Ext.B2) is a valid document?

9) Whether settlement deed No.3166/1997 (Ext.B3) of Maradu is valid?

2.4 The trial court held that Ext.A2 and Ext.B3 settlement deeds are not valid, especially since Devaki had no absolute right in the property. Therefore, she cannot execute settlement deeds like Ext.A2 or Ext.B3. Thereafter, the trial court proceeded to consider the impact of Ext.B5 Will and held that it is a joint and mutual Will and therefore on the death of Devaki, the property devolved upon the sons as per the terms and conditions of the Will and accordingly, dismissed the suit. Aggrieved, the plaintiff preferred A.S No.240/2009 before the II Additional District Court, Ernakulam. The First Appellate Court on the other hand proceeded to hold that there is no enabling clause under Ext.B5 Will, by which the surviving testator is given absolute possession of the property of her husband, still proceeded to hold that Ext.B5 is a mutual Will and not a