JAYADEVI Vs. NARAYANA PILLA

JUDGEMENT

(1.) Two suits were tried jointly. The leading case is O.S.No.88/1997. The connected suit is O.S.No.306/1998.

(2.) The leading suit is for setting aside Ext.B15 sale deed executed by the first defendant Subhadramma with respect to her properties, the plaint schedule item Nos. 1 to 3. The due execution of Ext.B15 sale deed by her is not in dispute. But the plaintiff came up with a suit for setting aside the abovesaid sale deed, Ext.B15, on the ground that it was executed against the disposition made under Ext.A4 Will in which she is one of the testators. It is the Will executed jointly by her along with her husband Ramakrishna Pillai. It was submitted that Ext.A4 Will is a reciprocal Will and as such, she would stand bound by it, wherein there is a clause that none of the testators will have the right to alter it during their life time. Hence, Ext.B15 would stand vitiated, it was argued.

(3.) Admittedly, Ext.B15 deed of transfer was executed and registered by Subhadramma, the first defendant, after the death of her husband Ramakrishna Pillai. Ext.A4 (Ext.B1)by its nature is only a joint Will. The clause incorporated therein that the surviving testator will not have any right to alter any of the dispositions made under the Will should not be read in substitute of requirement of a mutual Will, unless it is supported by reciprocal demise. No such clause having the effect of reciprocal demise was included anywhere in Ext.A4 Will. Necessarily, on the death of one among the testators, the dispositions made under the Will would come into operation only with respect to the assets of the deceased testator. Even in a case of mutual Will, there is no difference in the legal position that the Will would operate only with respect to the dispositions made by the deceased and not against the other, till his/her death. In short, on the death of one among the testators, either in the case of joint Will or a mutual Will, the property left out by the deceased testator included in the Will alone would stand bound by the disposition made therein and it would not operate as against the property of the other testator, who is alive, till his/her death. The surviving testator will have every right to deal with the property till her/his death irrespective of whether the Will and the dispositions thereunder came into effect as against the property of the deceased testator.