PANAKKAL IYYAPPAN Vs. ELACHAR CHAKKUNNT

JUDGEMENT

(1.) The decisive question in these appeals is whether the Will Exhibit X of one Chakkunni, dated the 18th December 1905, is revoked by a later Will of his, Exhibit A, dated the 24th September 1907. He also executed another Will Exhibit H between these two dates, i. e., on the 26th November 1936. I have used the Exhibit marks in the appeal against order The testator resided in the State of Cochin and had properties not only there but also some in British India. The latter properties he devised to his wife Elachar by Exhibit X, the earliest Will, by the next Will Exhibit H, he devised to her 38 items of property for her maintenance and by the last Will Exhibit A he gave all the rights which I have in the moveable and immoveable properties which I own this day and in those which I may acquire in future, inclusive of the right of succession similar to that which I have, and the freed Dm to buy and to alienate will pass to the children of my younger brother s daughter Panakkal Iyyakku s wife Ittyenam, viz., (1935) P. 66 at p. 78 : 74 L. J. P. 17 : 92 L. T. 335 : 53 W. K. 338. Iyyappan, and (2) Chakkunni who are minors." Then he proceeds to provide for the management of the properties by his wife Elachar during the minority of the two devisees, expressly maintains the dispositions made by him under Exhibit H and makes certain specific bequests. Then he winds up by saying: "All the moveable and immoveable properties which are found left by me after my lifetime, with the exception of those properties which are specified in this Will to be given to particular persons and the keys of the rooms, compartments and almirahs, etc., should be kept in your possession and when Iyyappan (the elder of the two minor residuary legatees) is 16 years of age you should surrender them to him."

(2.) The testator was a Christian and the Succassion Act applies. Section 57 of that Act compendiously lays down the law as to how a Will can be revoked. This is not a case of express but of implied revocation and the question is one of construction, as pointed out in Tewnsend v. Moore (1935) P. 66 at p. 78 : 74 L. J. P. 17 : 92 L. T. 335 : 53 W. K. 338. cited by Mr. Rosario, who contended that there has been no revocation of Exhibit X by Exhibit A. The principle to be applied in such cases is set out in a passage from Williams on Executors quoted by the Appeal Court at the same page and adopted by it as enunciating" the correct law: "The mere fact of making a subsequent testamentary paper does not worka total revocation of a prior one, unless the latter expressly, or in effect, revoke the former, or the two be incapable of standing together; for though it be a maxim, as Swinburne says above, that no man can die with two testaments, yet any number of instruments, whatever be their relative date, or in whatever form they may be (so as they be all clearly testamentary), may be admitted to Probate as together containing the last Will of the deceased. And if a subsequent testamentary paper be partially inconsistent with one of an earlier date, then such latter instrument will revoke the former as to those parts only where they are inconsistent." Mr. Rosario has especially relied upon a passage in the judgment of Vaughan Williams, L. J., at page 81 but the passage lays down nothing different, only it makes clear two things, that the question is entirely one of construction and if the words used are capable of being so read as to enable the two documents to be both admitted to Probate, that is the construction which should be adopted. Townsend v. Moore (1) was a case of two contemporaneous Wills, but I agree that every reasonable attempt should be made to reconcile two Wills whether executed on the same date or on consecutive dates though in the former class of cases the Court will naturally feel itself to be under a greater necessity for reconciling the two documents, as otherwise neither of them would be admitted to Probate and the testamentary intentions of the testator would be entirely defeated. In any case the words of the testator must be capable of yielding to a construction which will make the two Wills stand together, and not that we are at liberty to secure that result by reading in important operative words which are not to be found in the later document in order to save the earlier disposition. And that is what we shall have to do in this case if we were to accept the contention on behalf of Blachar. The intention of the testator must be sought in the language which he has used and is not to be made the subject of mere speculation. By his last Will the testator disposes of all the properties moveable and immoveable, which he owned on the day of its execution in favour of the two minor male relations of his, except those that he specifically gives to others; if effect is to be given to his words at all, the properties comprised in Exhibit X, which are not expressly excepted from their operation like those dealt with by Exhibit H, passed like the rest of his estate to the two boys. If authority was needed for the proposition that a second Will disposing of the whole estate revokes a former disposition, I would refer to the case of Henfrey v. Henfrey (1842) 4 : Moore P. C. 29 : 13 E. R. 211 : 59 R. R. 331. mentioned in Townsend v. Moore (1). It may be pointed out that not only is it the law that until the testator s death the properties comprised in his earlier Will, Exhibit X, were still his to dispose of, but he was fully conscious of this for he expressly provides in Exhibit X itself that they were to vest in her only on his death.

(3.) Mr. Rosario, however, argues that since the properties disposed of by Exhibit X were situate in British India and those were all the properties he had there, therefore, we should infer that when afterwards by Exhibit A he disposed of all hislproperties, he(sic)meant only those that were situate in Cochin. That is only possible if we were to add the words situate in Cochin or some words of similar effect and this in my opinion is not open to us to do. He also points out in support of his contention that in Exhibit X the testator says: "But even I should alter this Will by registered instrument" and though the subsequent Will Exhibit A was in fact registered, it was registered in Cochin and not in British India. Here again he wants us to modify what the testator actually says in Exhibit X. It is also said that another Will, which the testator had executed in 1901, was revoked by a registered karar executed on the same day as Exhibit A, but as pointed out by the District Judge there was no reason why Exhibit X should have been mentioned in that karar. Mr. Rosario in fact builds his entire argument on the hypothesis that as the testator lived in amity with his wife till his death, there was no reason why he should deprive her of what he had given her by the Will of 1905 (Exhibit X). But this overlooks the fact that subsequently in 1906 (Exhibit H) he has given her 38 items of property for maintenance and this latter disposition he expressly upholds in his last Will. The District Judge was, therefore, in my opinion entirely right in holding in his judgment in the second appeal that the Will of 1905 was revoked by that of 1907.