MATHEW Vs. VASUDEVAN

JUDGEMENT

(1.) THE question that arises in these second appeals is whether the Will executed by 2nd defendant and her husband is a Joint Will or a Mutual Will.

(2.) TWO properties were bequeathed by 2nd defendant and her husband Kuttappu as per Will,dated 21st February 1956,of which one stood in the name of the 1st executant and the other in the name of the 2nd executant.The properties were divided and shown in three schedules and allotted to three children viz.Kochuparu,Meenakshi and Vasudevan respectively.Kuttappu died in 1962.Thereafter 2nd defendant executed a mortgage in favour of 1st defendant in respect of one of the properties(the property which stood in her name)for a consideration of Rs.15,000.First defendant obtained a decree on the strength of the mortgage in O.S.269/ 1975 before Sub Court,Ernakulam.The property was proclaimed for sale in execution of the decree.That necessitated the three suits O.S.Nos.612/1978,210/1979 and 576/1979 before the Munsiff's Court,Ernakulam by the three legatees.A declaration was sought for that the plaintiff in each of those suits is the absolute owner of the property mentioned therein and that 2nd defendant had no authority to encumber the property since the Will was irrevocable.First -defendant contended that the Will can take effect only after the death of 2nd defendant and that she had every right to encumber the property belonging to her.The suits were jointly tried and as per a common judgment the suits were dismissed.Appeals were preferred against the judgment and decree in Q.S.No.612/1978 and O.S.576/1979 as A.S.Nos.153/1982 and 167/1982 before Sub Court,Ernakulam.Plaintiff in O.S.No.210/ 1979 did not prefer any appeal.As per a common judgment the appeals were allowed and the declaration sought for was granted and 1st defendant was injuncted from proceeding against the properties in execution of the decree in O.S.No.269/ 1975 of Sub Court,Ernakulam.Hence these second appeals by 1st defendant.These second appeals were admitted on the following substantial questions of law: (1)Is not a Joint Will revocable at any time by either of the testators during their lifetime or after the death of one of them by survivor ? (2)On the facts of the case revealed from Ext.A1 is the right of the surviving testator lost to dispose of the property described in Ext.A1 ?

(3.) THE point that arises for consideration is whether Ext.A1 purports to be a Joint Will executed by Kuttappu and his wife 2nd defendant whereby the rights of Kuttappu alone had devolved on the beneficiaries consequent to his death or whether Ext.A1 is a mutually reciprocal Will irrevocable by the survivor after the death of one of the testators.