IMPORTANT POINT
A Will should be construed in accordance with intention of the testators which can be inferred from the language of the Will itself.

Headnote:(a) Administration of justice – Judicial propriety – Issue of bar u/s 108, Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 neither raised before High Court nor High Court framed an issue in that regard – Being a question of jurisdiction, issue allowed to be raised for the first time before Supreme Court. (Para 14)
       (b) Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 – Section 108 – Bar u/s 108 applies to religious institutions – Can apply to charitable endowments if extended to them u/s 3 by Government – Instantly suit filed by plaintiff not relating to religious institution, held not barred by section 108. (Para 17, 18)
       (c) Testamentary law – Will – Nature of – Joint & mutual will – Instantly both Husband and Wife intending to give property into charities – Will clearly specifying list of charities and the committee of three persons to perform the charities – Mutuality to this extent clearly found in the Will. (Para 38)
       (1769) 21 ER 332; ILR 33 Madras 406; AIR 1959 SC 71 : 1959(1) Suppl. SCR 1; AIR 1964 Madras 291; (1986) 1 SCC 701 – Relied upon
       (d) Testamentary law – Will – Construction of – Intention of testator – Determines nature of Will. (Para 36)
       (1854-57) 6 MIA 526; AIR 1930 Privy Council 242; AIR 1951 SC 103; (1976) 1 SCC 630 – Relied upon
       (e) Testamentary disposition – Joint and mutual Will – Construction of – Instantly Will providing that on death of any of the spouse, survivor shall enjoy the entire properties absolutely with all the rights – Will further contemplating deletion of properties sold – Held, Will gives absolute right to the properties to the survivor – Charities to be carried out after death of survivor out of properties remaining and without alienation – High Court rightly holding that Will dated 27.9.1968 was a joint and mutual Will with an express condition that survivor shall have absolute right to deal with the property keeping the object of trust alive – Alienation by survivor held valid. (Para 41, 50, 51, 55, 58, 59, 60)
       AIR 1933 Madras 80; 57 Commonwealth Law Report 666 – Referred
       (f) Testamentary disposition – Testator and testatrix contemplating in the Will the trust to come into operation after their death – Thus trust should have came into operation on 27.12.1980 upon death of the survivor. (Para 65)
       Facts of the case:
       One Palaniappa Chettiar and his wife, Chinammal @ Rangammal possessed considerable properties in Gobichettipalayam Taluk including 29 houses and 96.950 acres of Agriculture land. Rangammal possessed certain agricultural land in Sathy Taluk also. Both Palaniappa Chettiar and his wife, Rangammal jointly executed a Will dated 27.9.1968. The Will stated that on the death of any one of them, survivor shall enjoy the entire property. The Will enumerated various charities to be carried from the income derived from the properties. Three Members Committee was constituted for carrying out the charitable objects. After execution of the Will, on 5.10.1969 Palaniappa Chettiar died. After the death of Palaniappa Chettiar, Rangammal alienated about 10 properties by separate sale deeds which were in her name as well few properties which were in the name of her deceased husband.
       Defendant Nos.4 and 5 claimed that Rangammal by a registered Will dated 27.11.1980 bequeathed her entire properties in favour of defendant Nos.4 and 5. Smt. Rangammal died on 24.12.1980. After the death of Rangammal, defendant Nos.4 and 5 made several alienations of the properties belonging to Rangammal and her deceased husband on the strength of Will dated 27.11.1980.
       Respondent No.1 claiming to be representative of Hindu Community in General and Citizens of Gobichettipalayam filed Original Suit praying for necessary arrangements for the management of the Trust requiring defendant Nos.1 to 3 to enter upon their duties as Trustees and take up the management of the Trust or make arrangement for the appointment of other Trustees for proper management of the Trust. Defendants filed written statements in the suit.
       The trial court held that Will dated 27.9.1968 is not a mutual Will but a joint Will and after the death of Palaniappa Chettiar the Will became irrevocable. The trial court further held that Will dated 27.9.1968 is a true and valid document. It was further held that plaintiffs were entitled to represent the Hindu Community in General and Citizens of Gobichettipalayam under Order 1 Rule 8 CPC. Trial court further held that Will dated 27.11.1980 claimed by defendant Nos.4 and 5 is not proved and it has not been executed in good, sound and disposing state of mind. Ex.D109, Will dated 27.11.1980 was held not a true and valid Will. The trial court, came to the conclusion that Trust is not formed under the Will dated 27.9.1968, hence, plaintiffs were not entitled for framing a scheme under Section 92 CPC. The suit was dismissed.
       Both the appeal suits were decided by the High Court by the impugned judgment. The High Court dismissed the A.S.No.606 of 1989 concurring with the judgment of the trial court in so far as it has rejected Will dated 27.11.1980. A.S.No.851 of 1989 was allowed by the High Court and the judgment of the trial court in so far as it was against the plaintiffs was set aside. The High Court held the Will dated 27.9.1968 as mutual and joint Will. It was held that after the death of Palaniappa Chettiar, Rangammal had no right to alienate any property and all alienations of the properties made by her after the death of Palaniappa Chettiar were null and void.
       Finding of the Court:
       Alienation made by Smt. Rangammal after the death of Palaniappa Chettiar during her lifetime was valid. Such alienations need to be deleted from the list of the properties and not included in the trust property.
       Alienations made by defendant no. 4 & 5 are null and void.

JUDGMENT :

Ashok Bhushan, J.

These appeals have been filed against the common judgment dated 7th July, 2005 of Madras High Court in Appeal Suit (AS) No.851 of 1989 and Appeal Suit (AS) No. 606 of 1989. These appeals arise out of Original Suit No.76 of 1981 instituted by respondent No.1 to these appeals. The parties hereinafter shall be referred to as described in the Original Suit No.76 of 1981.

2. Civil Appeal No.5924 of 2005 has been filed by Dr. K.S. Palanisami who was defendant No.13 in the Original Suit. Civil Appeal No.5925 of 2005 has been filed by G.K. Perumal and Ramayummal who were defendant Nos.4 and 5 in the Original Suit. Civil Appeal No.5926 of 2005 has been filed by Thirugnanasambandam and Dr. M.R. Sibbian who were defendant Nos.7 and 10 in the Original Suit. Civil Appeal No. 6469 of 2005 has been filed by G.K. Perumal and Ramayummal who were defendant Nos. 4 and 5 in the Original Suit.

3. Brief facts of the case necessary to be noted for deciding these appeals are:

(A) One Palaniappa Chettiar and his wife, Chinammal @ Rangammal possessed considerable properties in Gobichettipalayam Taluk including 29 houses and 96.950 acres of Agriculture land. Rangammal possessed certain agricultural land in Sathy Taluk also. Both Palaniappa Chettiar and his wife, Rangammal jointly executed a Will dated 27.9.1968. It is stated in the Will that couple do not have any issue and there is no hope that they will live long and their relatives are not fit to enjoy the properties. The Will further stated that on the death of any one of them, survivor shall enjoy the entire property. The Will enumerated various charities to be carried from the income derived from the properties. Three Members Committee was constituted for carrying out the charitable objects. The Will in List No.1 enumerated the details of house properties, agricultural properties in the name of Palaniappa Chettiar and List No.2 contained the house and agricultural properties in the name of Chinammal @ Rangammal. After execution of the Will, on 5.10.1969 Palaniappa Chettiar died. After the death of Palaniappa Chettiar, Rangammal alienated about 10 properties by separate sale deeds which were in her name as well few properties which were in the name of her deceased husband.

(B) Defendant Nos.4 and 5 claimed that Rangammal by a registered Will dated 27.11.1980 bequeathed her entire properties in favour of defendant Nos.4 and 5. Smt. Rangammal died on 24.12.1980. After the death of Rangammal, defendant Nos.4 and 5 made several alienations of the properties belonging to Rangammal and her deceased husband on the strength of Will dated 27.11.1980.

(C) Respondent No.1 claiming to be representative of Hindu Community in General and Citizens of Gobichettipalayam filed Original Suit No.76 of 1981 impleading Commissioner of Hindu Religious and Charitable Endowment, Madras as defendant No.1, Revenue Divisional Officer, Gobichettipalayam as defendant No.2 and District Munsif, Gobichettipalayam as defendant No.3 along with other defendants who claimed to be transferees from Rangammal. Defendant Nos.4 and 5 were impleaded who claimed a Will dated 27.11.1980 from Rangammal of the entire properties apart from sale deed from Rangammal. Plaintiffs’ case in the suit was that Palaniappa Chettiar and his wife, Rangammal by registered Will dated 27.9.1968 created a Trust and made arrangements for due performance of charitable objects. The power of management and administration of the Trust was given in the Will to defendant Nos.1 to 3 who were authorised to deal with the Trust property without any power of alienation. It was pleaded that Will dated 27.9.1968 was a mutual and irrevocable Will. It was pleaded that Palaniappa Chettiar and his wife during their life time could not have acted in derogation of the Will. The plaintiff further stated that purported Will dated 27.11.1980 was not executed by Chinnammal @ Rangammal in a sound and disposing state of mind and the same was brought by defendant No

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2017 Supreme(SC) 250

IMPORTANT POINTA Will should be construed in accordance with intention of the testators which can be inferred from the language of the Will itself.

Cases Referred (4)

IMPORTANT POINT
A Will should be construed in accordance with intention of the testators which can be inferred from the language of the Will itself.