KOLANDAYAMMAL Vs. R. SENNIAPPA GOUNDAN AND OTHERS

JUDGEMENT

(1.) This second appeal has been preferred by the first defendant and the question involved is the true construction of the will executed by one Appichi Goundan, the father of the 1st defendant on 3rd April, 1957. The plaintiff in the suit is purchaser of the suit properties from one Periammal, mother of the 1st defendant and wife of the said Appichi Goundan, under a registered sale deed Ex. A -3 dated 30th January, 1959. Appichi Goundan, the testator owned the suit properties a 1/12th share in the plaint A schedule properties and 1/8th share in the plaint B schedule properties and another item of property, not the subject matter of the suit. Appichi Goundan had an unnatural end on 25th August, 1958 (he was murdered). The will in question executed on 3rd April, 1957 and registered on 4th April, 1957, comprised all the three items of property above mentioned. Long prior to his death on 13th August, 1957 itself, the testator sold away the other item of the property, not the subject -matter of the suit. His widow Periammal claiming absolute title to the suit properties under the aforesaid will, sold the suit properties to the plaintiff for a consideration of Rs. 6000, under Ex. A -3, referred to above. The 2nd defendant to the suit is the husband of the 1st defendant and the plaintiff charges defendants 1 and 2 with setting up frivolous pleas, that Periammal was not entitled to succeed to her husband's properties under the will and the sale to the plaintiff was not valid. Alleging acts of trespass, the suit has been filed for a declaration of the plaintiff's title to the separate possession of a 1/12th share in that A schedule properties and a 1/8th share in the B schedule properties with future mesne profits. The other defendants to the suit are co -sharers in the properties in respect of the remaining shares. Defendants 1 and 2 raised a variety of defences, inter alia, that Periammal, the wife, had taken part in the murder of her husband and therefore she was not entitle to inherit his estate. It was also contended that by reason of the prior conveyance of one of the items dealt with under the will by the testator the will should be deemed to have been cancelled. The substantial contention was, that in any event under the will Periammal got only a life estate in the properties and not an absolute estate, the vested remainder being in the 1st defendant. It is this last defence that was accepted by the trial court. It may be stated Periammal was made an accused in the sessions case that followed the murder of Appichi Goundan, but she was acquitted. There was no question about the genuineness of the will or its valid execution. On its findings the trial court granted the plaintiff a preliminary decree for partition and separate possession of the shares in the suit properties as prayed for, but conditioned the decree with a declaration that the plaintiff can remain in possession of the suit properties until the death of Periammal and that after her death the 1st defendant will be entitled to the suit properties. Periammal, though alive, had not been made a party to the suit. In fact, she has come and given evidence on the side of the plaintiff. The plaintiff alone appealed from the decree and the only question mooted in the appeal was as to the nature of the estate taken by Periammal tinder the husband's will. In the appeal the Subordinate Judge, Coimbatore, differing from the trial court, held that Periammal took the properties under the will absolutely with all rights, and that under its terms the testator's daughter (1st defendant) had no vested remainder in the properties. On this finding, the consequential modification of the decree of the trial court was directed and the plaintiff was held entitled to mesne profits to be determined in proceedings under Or XX Rule 12 C.P.C.

(2.) The testator was an agriculturist of Puvampalayam Village, Erode Taluk, Coimbatore Dt. The will which is in Tamil starts with a preamble setting out the relationship between the testator and Periammal as husband and wife, the fact that they had no male issue and that the only female issue they had, had been given away in marriage. After setting cut his then ill -health and the need for making provision for the wife the will proceeds to state that with a view to avoid disputes and court proceeding with reference to the schedule immovable properties acquired and ancestrally and by self exertion, he was giving the properties to his wife by way of will. The preamble further states that the will was executed in her favour, so that she may, during her lifetime, enjoy the schedule properties with absolute rights, with full powers of alienation, by way of gift, sale, exchange etc. The testator expressed the hope that she would properly take care of them and like him she would, when she desired, execute a will of the properties in favour of the daughter. The operative portion of the will provided that after lifetime she can enjoy the properties with an absolute rights and that he hoped that she too will execute a will so that after her, their heir and daughter Kolandai Ammal would take the properties with absolutes rights. The learned District Munsif interpreted the will as revealing that the dominant intention of the testator was to make provision not only for the donee Periammal, for the daughter also. He would read the will as providing that on the death of Periammal, the daughter as heir took the properties absolutely. On the appeal the learned Subordinate Judge would emphasise those words of the will which gave Periammal an absolute estate in the properties with rights of alienation by way of gift, sale etc. Language has been employed with reference to the gift granting the donee the highest form of estate. The Subordinate Judge would point out that the full proprietary interest conveyed under the language employed was at variance with the life interest pleaded, and that the provision in favour of the daughter should be regarded as the expression of a pious wish by the testator.

(3.) The courts below have referred to a number of decisions on the construction of wills. Needless to state that there can be no binding precedent in the construction of wills. Each will, has to be construed according to its tenor in its setting having regard to the executants; the circumstances and the modes of expression prevalent in the locality. The task of interpretation being to ascertain the true intension of the testator, it has to be borne in mind that no two testators would be identically placed in all respects, and intend alike in similar circumstances. Decisions in regard to other wills can only give guidance in the application of general principles by reference to instances. The best way of construing a will is to read the will as a whole and form an opinion as to its import and then see whether the intention could be sustained in the light of the general principles found in decided cases. It has to be seen whether the estate inferred on a reading of the will as a whole is legal and whether the opinion formed as to its import require modification in the light of decisions. Every effort must be made to avoided an interpretation which lead to intestacy to any extent. Equally, if possible, specific instructions of the testator as regards devolutions of his estate must not be whittled down. If there are apparently conflicting provisions in the will, an attempt should first be made to reconcile the conflicting provisions and see if a legally permissible estate could be inferred from the terms of the will, giving effect to every expression therein. The court of construction must proceed on the assumption that the testator has intended to create a legally valid estate.