Anantanarayanan, J.-

I am fully in agreement with the conclusions of my learned brother expressed in his judgment, of which I have had the advantage of perusal. If I am adding a few observations of my own, it is not because I think that there is really any difficulty upon the facts of the present case, or the interpretation of the terms of Exhibit A-1 in the setting in which it came to be executed by the two brothers. Judged by every test, as my learned brother has shown, the will is a mutual and reciprocal one, and having obtained benefits under such a will executed with a patent stipulation that it could only be revoked or altered during the lives of both testators (that being the fair and obvious interpretation of the Tamil text, in the light of the probabilities) the testator who survived, Perumal Raja, could not validly revoke the will or alter the dispositions, under his later will, Exhibit B-1. Alternatively, the Courts are also bound to effectuate the provisions of the mutual will, as a bona fide family arrangement. Nor can the Hindu Law of coparcenary estate and survivorship really affect this interpretation, on the totality of the facts of this case. Once it is conceded that Chinnappa Raja’s self-acquired properties were also dealt with under the will, in the setting of the irresistible inference of a reciprocal understanding between the two brothers regarding both the enjoyment and the subsequent devolution of the properties in a manner modifying the normal course under Hindu Law, survivorship must be considered at an end. On the facts and probabilities of this case, in the light of well-established principles, the appeals have to be allowed.

But the paucity of decisions upon mutual and reciprocal wills, as far as this country is concerned, and certain refinements of the law in the catena of English decisions upon this aspect of the law, that so rarely comes up before Courts, have tempted me to add some brief remarks.

The problem is, can we discern any ebb-tide of the law, in the English cases, after the leading decision in Dufour v. Perina1, so that Courts have been increasingly reluctant to diminish or whittle down the right of a surviving testator to revoke the earlier dispositions, to deal again with the estate as he liked ? For instance, In re Oldham2, would appear, at the first flush, to be a case in which the canon applied by Lord Camden to the facts in Dufour’s case,1 would have led to the same conclusion of an irrevocable mutual testament. Each was both testator and legatee, and the wife, who survived, did take the estate of the husband under the will. Equally, in Gray v. Perpetual Trustee Co.,3, the situation was similar. The Courts distinguished Dufour’s case,1 and held against mutuality in these cases, because “an agreement to constitute equitable interests”, to use the language of Lord Haldane in Cray’s case3, could not be spelt out from the facts, at the time that the testament averred to be mutual, came to be executed. But is not the very fact that both testators come together to make such joint will or dispositions of both estates after their respective lives, evidence of an intention to create an unequivocal trust ? Here I desire to emphasise that the refinement with regard to the jurisdiction of the particular Court, set forth at length in. In The Estate Mary Heys, (Deceased) Walker and another v. Gaskill and others,4 does effect the central issue. The perspective of a Probate Court may be different, and its task far more limited. But, sooner or later, if a trust exists, it will have to be effectuated, and this implies that the later will admitted to probate, cannot prevail. Indeed, in Stone v. Hoskins5, the matter has been put in the form, not that the bequest under the subsequent will is invalid, but that the legatee takes the estate burdened with the trust: “His personal representative takes the property upon trust to perform the contract.”

Obviously there is another refinement. The power of the sur

Click Here to Read the rest of this document