GOVINDAN NAIR Vs. JANAKI AMMA

JUDGEMENT

(1.) THE petitioner before the lower court is the appellant. On the strength of Ext. C unregistered will dated 10. 9. 1118, he applied for the grant of Letters of Administration in his favour. This will purported to have been executed by Vattekkatt Kalyani Amma and her daughter lekshmikutty Amma, who were the only two members of their thavazhi which became separated from their common tarwad as per Ext. II partition deed dated 15. 9. 1115. THE counter-petitioners challenged the genuineness of Ext. C and contended that it was a spurious document fraudulently brought into existence by the petitioner himself to serve his ends. THEy also contended that after the death of Kalyani Amma, her daughter Lekshmikutty Amma, who was the sole surviving member in their thavazhi and who became entitled to the properties of that branch, settled those properties on the counter petitioners, who are members of the other collateral branches of the common tarwad by executing Ext. 1 registered settlement deed on 8. 1. 1119. THE lower court upheld these contentions and found that Ext. C is not genuine and that, even if it is a genuine document, it has been effectively revoked by the execution of Ext. I, settlement deed. On the strength of these findings, the petitioner's application for Letters of Administration was dismissed. His appeal is against that order.

(2.) IT is seen from Ext. II that the thavazhi of Kalyani amma and her daughter Lekshmikutty Amma had become separated from the common tarwad in the year 1115 and that these two member remained joint. IT is conceded even by the petitioner himself as the second witness on his side that these two ladies had not become divided in interest. Ext. C also is seen to have proceeded on the basis that the two ladies remained joint with rights of survivorship. Ext. C is a joint will purported to have been executed by the two ladies in respect of their common properties. Such a joint will could be revoked by either of them during the life-time of both or by the survivor on the death of one of them. IT is contended on behalf of the petitioner that clause 9 of Ext. C which states that on the death of one of the executants her rights will vest in the legatee, is tantamount to a declaration of the executant's intention to become divided in interest and that as such it must be deemed that each of them had separate and divisible interest in the thavazhi properties. Such a provision by itself cannot be said to have effected a severance of interest as between the mother and the daughter. There are other provisions in Ext. C, itself clearly indicating that in spite of the execution of Ext. C the intention of the executants was to remain joint. IT is stated in the document that they could incur debts charged on the properties only under a registered document jointly executed by both of them. IT is also stipulated that the will could be revoked only by both of them jointly. Thus there can be no doubt that even if Ext. C is genuine, the execution of it has not effected a status of division between the two ladies. In spite of the execution of Ext. C, they continued to be members of an undivided thavazhi with all the legal incidents attached to it. IT follows therefore that on the death of Kalyani Amma all her rights in the joint properties of the thavazhi became vested in her daughter Lekshmikutty Amma as the sole surviving member of the thavazhi. The effect of a will executed by an undivided member of a co-parcenary in respect of his interest in the coparcenary property came up for consideration in Radha Ram Asaram v. Ganga Ram (159 Indian Cases 227) and there it was held that on the death of the testator, his interests in the co-parcenary properties vest in the surviving members and that therefore the legatee could not get anything under the will. In Darbans lall v. Dhaull Devi (163 Indian Cases 214) it was held that a co-parcenery cannot will away any rights in the properties belonging to a joint Hindu family and that the making of such a will will not result in a severance of his interest in the joint family property. The principles accepted in these rulings are also in support of the position that on the death of Kalyani Amma, her interests in the thavazhi properties devolved by survivorship on her daughter Lekshmikutty amma and the daughter was therefore competent to deal with the entire properties of the thavazhi. As the sole surviving member of the thavazhi, she executed Ext. I settlement deed in respect of those properties. IT is a registered document and its genuineness is not challenged. ITs genuineness is also proved by the witnesses examined on the counter-petitioner's side. By the execution of this settlement deed, Ext. C will even if genuine, has been effectively revoked. On this ground alone the lower court's order dismissing the petitioner's application for Letters of Administration based on Ext. C could be sustained.