IN THE HIGH COURT OF KERALA
A.S. Nos. 118 and 119 of 1953
Decided On: 27.01.1959
Venkitaparasurama Ayyan and Ors.
Hon’ble Judges/Coram: K.T. Koshi, C.J., M.S. Menon and N. Varadaraja Iyengar, JJ.
1. These two connected appeals arise respectively from a suit for declaration and injunction, O. S. 34 of 1124 and a petition for letters of administration, M. P. 6 of 1124, both on the file of the Trichur District Court. The suit and the petition were more or less in the nature of cross proceedings concerned with the succession to the estate of Varavoor Ven-kiteswara Iyer deceased.
They were accordingly tried and disposed of together by the court below, the common evidence being let in in the suit. As the appeals involved some novel and difficult questions they were referred to a Full Bench and so have come before us and are being disposed of by this single judgment. We will be referring to the parties as arrayed in the suit for the purpose of convenience.
2. Venkitcswara Iyer, deceased, died suddenly as the victim of a murderous attack in his own, house at Vadakkancherry in Cochin, in Chingom 1124. He left behind him considerable properties movable and immovable and two sets of close relations, one in his caste and the other outside of it. Of these relations the former comprised Venkila-parasurainan, the 1st plaintiff and also five daughters all married off and not parties.
The plaintiffs 2 and 3 are the sons of the 1st plaintiff. The latter set comprised Venkiteswara Iyer’s Nair wife Kunjikavu Amma the 1st defendant and three children by her, viz, Mala’hi, the 2nd defendant, Unnikrishna Mcnon, the 3rd defendant and Padmanabha Menon, the 4th defendant. Among the many records and papers of Venkiteswara Iyer found and seized by the Police at the time of their search of the scene of his death, was Ext. I testamentary instrument dated 19-1-1114 and executed by him on the eve of his pilgrimage to Benares on 26-1-1114.
The will went into great details as to the legatees and the properties of the testator to be respectively taken by them but the substantial beneficiaries under it were the defendants 2 to 4. This will was however not registered but left in deposit in sealed cover with the Superintendent of Registration at Trichur under Section 35 of the Cochin Registration Act 5 of 1084 corresponding to Section 42 of the Indian Act on 20-1-1.114.
3. Venkiteswara Iyer returned safe from his pilgrimage trip within a month and subsequently on 12-7-1118 also withdrew the sealed cover from its place of deposit. There is, 1 dispute between the parties as to whether Ext. T is the original will itself or merely a draft of it, but the main question in controversy between them in the court below and continued before us was how far Ext. I could govern the succession to Venkiteswara Iyer’s estate.
The plaintiff’s case on the one side was that Ex. I was only a contingent or conditional will dependent for its effectiveness on the failure of the testator to return after the pilgrimage trip. But as that contingency did not happen the will had automatically become inoperative. Even otherwise according to the plaintiffs, the will had been revoked by the testator as evinced by his subsequent conduct. The defendants on the other band, contended that Ext. I was no way conditional the pilgrimage to Benares being, according to them only the reason or occasion for its execution.
The plaintiffs had an alternative case, in the count below that the deceased was the Kartha of the joint Hindu family of himself and the plaintiffs at the time of his death, and the 1st plaintiff as the present Kartha was entitled to administer the estate in preference to the defendants. With the finding however of the court below that the case set up in the plaint and subsequent reunion of the 1st plaintiff with Venkiteswara Iyer in modification of their acknowledged separation of status in 1106 under Ex. I had not been made out, this alternative case lost its importance and indeed has not been pursued before us.
The defendants for their part had an alternative case that even assuming Ext. I was inoperative and there was only intestate succession in regard to the estate, they were still as co-heirs with the 1st plaintiff for a half share in the estate under the Nair Act of 1113 (Cochin) entitled to participate in its administration. But this alternative case also lost its importance in view to the finding of the court below based on the evidence in the case and also on the application of principle of res judicata that the conjugal union of Venkiteswara Iyer with the 1st defendant did not amount to a marriage under the Nair Act of 1095 which was then in force but was only a concubinage commencing as it did in 1097 or 1098 while yet the caste wife was alive. And though the defendants have raised the point in the appeal memorandum, they have not persisted in this alternative case in argument before us.
4. On the main questions the court below found that Ext. I was the original will itself and not a mere draft of it and that as a matter of construction it was only a conditional or contingent will so as to become inoperative on the return of Venkiteswara Iyer from Benares and therefore of no assistance to the defendants. The court below further found that after he returned from the pilgrimage, venkiteswara Iyer dealt with the properties covered by Ext. I and also conducted himself in manner that indicated that he had revoked the will.
In the result, the court passed decree in O. S. 34 of 1124 granting declaration of the plaintiffs’ preferential right to administer the estate of Venkiteswara Iyer and also permanent injunction restraining the defendants from interfering with the plaintiffs in their administration and realisation of the same as prayed for Consistently with this decree the court below dismissed M. P. 6 of 1124 (filed by the defendants 2 to 4 alone with the 1st plaintiff as the sole respondent). Hence these appeals by the common appellants, viz., defendants 2 to 4. The respondents-plaintiffs, while supporting the decree under appeal have sought to raise before us a fresh point that the terms of the bequest under the will in favour of the defendants 2 to 4 cannot on proper construction take in after acquired properties and the consequence was that those properties must in any event devolve on them as under intestate succession.
5. The questions that therefore arise for consideration are:
(i) Whether Ext. I is the original will or only a draft thereof:
(ii) Whether the will is only conditional and has in the event, become inoperative;
(iii) Whether the will was revoked by Venkiteswara Iyer and
(iv) Whether assuming the will is valid and operative it cannot affect the after-acquired properties of the deceased.
6. Taking up the first question, it has to be noticed to begin with that Ext. I is written on both sides of the paper when it comes to pages 2 and 3 and there are in all the pages a number of interlineations, over-writings and corrections though initialled by the testator and referred to collectively in a yadast written towards the end which again is signed by him.
The will does not contain any attestors but this by itself may not be of any importance in the absence of any law in Cochin corresponding to Section 63(c) of the Indian Succession Act providing for the compulsory attestation of unprivileged wills P. W. 5, Parasurama Jyer who was the Head Clerk of the Registry Office at Vadakkancherry in 1114 gave evidence to the effect that Venkiteswara Iyer had consulted him in the matter of the execution and deposit of the will and that himself and vakil Mr. M. V. Narayana Iyer deceased had attested the will concerned.
According to him Ext. I appeared to be the will first brought over to him by the deceased for attestation but he had advised to discard it because it was written on both sides of the paper and office did not, as a matter of practice, accept such instruments. Mr. Narayana Iyer had not been examined in the case by the plaintiffs apparently because he died before it could be done. Exhibit I did not again contain any indication that it was the instrument deposited in sealed cover. In spite however of these circumstances, the court below found itself unable to hold that Ext. I was only a pure draft and not the original itself.
Having considered the matter for ourselves, we think this conclusion of the court below is right and may be accepted particularly because no separate document answering to an original has been found among Venkiteswara Jyer’s record and papers and preserver of even trifles as he is disclosed to be, would not, in our opinion, have omitted to keep any such if there it was and there is again no case for the plaintiffs on the pleadings that such original was destroyed in view to its revocation.
We therefore hold along with the court below, that Ext. I is the original will executed by Venkiteswara Iyer and not a mere draft of it as contended for on behalf of the plaintiffs. We may add that this question as to whether Ext. I is the original or only a draft is not after all of much significance in this case in the light of the provision for limited grant in Section 24 of the Probate and Administration Act (Cochin) corresponding to Section 237 of the Indian Succession Act and of the unquestioned authenticity of Ext. I.
7. We come now to the second and more important question as to whether Ext. I will is conditional or contingent. This depends on the true construction of its provisions. We proceed therefore to extract its relevant terms. Exhibit I is drawn up in Malayalam. Its opening paragraph freely translated runs as follows:
“Pensioned Head Clerk, Venkiteswara Iyer of Pullengat Madom of Varavoor Kizhoot-Parnmba, now living in Vadakkancherry Village of Thalnpilly Taluk executed this will in his own handwriting to be deposited in sealed cover.
I am going on the 26th of this month to Banares and Caya for Ganga Snanam and performing Gaya Sradha. If for any reason T dn nnt return and to avoid any scrambles with regard to my properties both movable and immovable I hereby determine who should be in possession of and enjoy the same as described hereunder.”
(The original vernacular in Malayalam is here omitted.–Ed.) The second paragraph refers to the grouping of the properties into Schedules A to J-1 and the direction given against each such schedule as to who should take it and further provides that such properties as may be existing but not shown in the schedule, will also be taken by the defendants 2 to 4 or in the absence of any one of them by the survivors among them.
Paragraph 3 refers to the absence of any male issue to the 1st plaintiff and provides for some small bequest to such male issue if born within 7 years and failing them to the testator’s sister. Paragraph 4 then provides for the devolution of the major portions of properties in favour of defendants 2 to 4. Provision is thereafter made in. paragraphs 5 and 6 for the daughters of the testator and also for the maintenance of the 1st defendant. Finally paragraphs 7 to 14 give the details of the properties.
8. Now, all conditions are contingent. So, as applied to wills both the words mean the same thing. Only, the word ‘contingent’ is used when referring to the happening of an event, and the word condition is used when referring to the doing or forbearance from the doing of some act. If therefore a will is expressed to take effect only in. the event of the happening of some contingency or condition and the contingency does not happen or the condition fails, the will is of no effect. The difficulty in these cases is, as explained by Sir F. H. Jeune in In the Goods of Spratt, (1897) P. 28,
“that an ambiguity is caused by the use of language which renders if doubtful whether the testator meant to refer to a possible event as his reason for making a will, or as limiting the operation of the will made. If the will is clearly expressed to take effect only on the happening, or not happening, of any event, cadit quaestio, it is conditional. If the testator says, in effect — that he is led to make his will by reason of the uncertainty of life in general, or for some special reason, cadit quaestio, it is not conditional. But if it be not clear whether the words used import a reason for making a will or impress a conditional character on it, the whole language of the document, and also the surrounding circumstances, must be considered.”
The learned President then mentioned two criteria as especially useful for determining the problem :
“First, whether the nature of disposition made appears to have relation to the time or circumstances of the contingency; and secondly, where the contingency is connected with a period of danger to the testator, whether it is coincident with that period because, if it is, there is ground to suppose that the danger was regarded by the testator only as a reason for making a will, but, if it is not, it is difficult to see the object of referring to a particular period unless it be to limit the operation of the will.”
and went on to find illustration of tire principle enunciated as above in the various cases decided so far which he reviewed in detail. Some of these with the respective comments of the learned President may usefully be referred to here. Thus with respect to one of the old cases Parsons v. Lanoe (1748) 1 Ves. Sen 189 : 27 Ell 974, where the provision was,
“If I die before my return from my journey to Ireland, that my house and land at Farly Hill ….. be sold as soon as possible after my death”.
and the instrument was as a whole held to be conditional the learned President doubted if there was any ambiguity in the language but even so, the second of the tests which he had mentioned applied, because
“the period of contingency, that is the whole stay in Ireland, can hardly have been considered by the testator to be a period of special danger”.
In another old case Strauss v. Schmidt, (1820) 3 Phill. Ecc. 209 where the words constituting the devise and written before the testator proceeded on a voyage were
“Therefore as I may easily die, I think it my duty to inform you what you have to do with my property in case I should die.”
and Sir John Niholl had decided that the will was contingent. On this the comment of the learned President was that it was an instance of the period of danger being the same as the period of the contingency. The case in Burton v. Collingwood (1832) 4 Hag Ecc 176, was according to the learned President a typical instance of a contingency being referred to only as a reason for making a will. The words there were
“All men are mortal, and no one knows how soon his life may be required of him. Lest I should die before that next sun, I make this my last will and testament.”
Of the more recent cases he referred to In the Goods of Winn (1861) 2 Sw. and Tr. 147, decided by Sir Croswell, belonged to the group of contingent wills. The material words were :
“Being on the eve of embarking for San Francisco, South America, or Mexico, do hereby, in the case of my decease during my absence being fully ascertained and approved”.
Commenting on In the Goods of Porter (1869) 2 P and D 22 where the following language was used :
“Being obliged to leave England to join my regiment in China, and not having time to make a will, I leave this paper containing my wishes and desires. Should anything unfortunately happen to me while abroad I wish ….. ‘ everything that I may be in possession of at that time or anything appertaining to me hereafter to be equally divided”.
and Lord Penzance had held that the words ‘at that time’ in the latter portion made the will conditional, the learned President observed that the case illustrated both the criteria he had indicated; the nature of the disposition pointed to the will being contingent, although the period during which it was expressed to operate being the period of testator’s danger, would not have made it so.
9. Taking up the particular will before him, Sir Francis Jeunc found that it referred to the possibility of the testator being killed in the military campaign in which he was then being engaged and then made the provisions concerned “in case of accident” and finally went on to request that the will should be kept by his sister till he asked for it. On this the learned President held that the words pointed only to the reason why the testator desired to make the will.
There was no expression of any period to be found in the document within which alone it was to be operative, on the contrary the request to the sister showed that the testator had not in his mind any defined period of time at the expiration of which he intended that his will should cease to be effective. Nor was there anything in the disposition of the property which indicated that it was temporary, or that it did not apply to whatever property of which the testator might at any time be possessed. He therefore granted a probate of the document in question.
The tests laid down by Sir Francis Jeune, P. as above were referred to with approval and followed by Blgham, P. in the later case In the Estate of Vines (1910) P. 147, where the words were, ‘It anything should happen to me while in India.’ The testator left India about four years later and when asked by his wife if he was going to alter his will he answered in the negative and repeated the remark a fortnight before his death. The learned President distinguished between ‘If I die tomorrow’ and ‘Lest I die tomorrow’ but was aided by the declarations of the testator in coming to the conclusion that the will was not conditional.
This case may therefore be taken to illustrate the further principle that if it can be said that the language used in a testamentary document is ambiguous, extrinsic evidence of declarations by the testator made down to within a short time before he died is admissible to assist the court in clearing up the ambiguity. See also Re Govier (1950) WN 213, where extrinsic evidence of surrounding circumstances was admitted to explain an ambiguity.
10. The proposition as stated in leading English text books does not take the matter further. Thus Jarman on Wills, 8th Edn: Vol. I, p. 39.
“A will may be made so as to take effect only on a contingency, and if the contingency does not happen the will ought not to be admitted to probate. The contingency will generally attach to every part of the will, e.g. to a clause revoking former wills. But a codicil in other respects contingent will be admitted to probate, because it may operate as a republication of the will. A reference to some impending danger is common to most of these cases, and the question is whether the possible occurrence of the event is the reason for the particular disposition which the testator makes of his property, as where he says, “should anything happen to me on my passage to W., I leave”, etc., or only the reason for making a will, as where he says, “In case of accident, being about to travel by railway, I bequeath etc”. A will may also be made contingent on the assent of another person”.
Similarly Halsbury’s Laws of England, 2nd Edn. Vol. 34, Wills, page 11 paragraphs 6 and 7.
“6. An instrument may also be conditionally testamentary. Thus a testator may refer in his will to some contingency, such as an impending journey by him or his possible death while abroad or other event in terms which make the will conditional, or limited in operation. The terms may, however, merely import that the contingency is a reason for making the will, in which case the will is not conditional. If the contingency is coincident with a period of danger to the testator, there is ground for supposing that the danger was regarded by the testator only as a reason for making a will. A conditional will is of no effect if the contingency fails, but may take effect free from the contingency in question if re-executed or republished after the contingency has passed,
“7. In considering whether an instrument is of a testamentary character or is conditionally or unconditionally testamentary, a court of probate construes the will in the manner of a court of construction and may receive evidence accordingly; and, further may receive extrinsic evidence of the intention of the alleged testator with regard to the character of the instrument where that character is ambiguous.”
11. There are two cases in India on this subject which were referred to us. The earlier one is Gnanambal v. Ammalu Animal 5 Mad LJ 94. Here the testator executed the will in a certain year making certain dispositions but with a preamble that it was executed “for “that year” and there was nothing to show that he did anything after the expiration of the said year indicating an intention to keep the will as subsisting testamentary instrument and died subsequently. It was held that the will had at his death no force whatever and that he must be presumed to have died intestate. The next case is Jagannath v. Rambharosa MANU/PR/0041/1932 : AIR 1933 PC 33. The opening words of the will here were :
“I am going to Delhi for the Darbar, therefore I am writing the following conditions about my property, I hope that by the grace of God such an occasion will not arise, but strange is the course of time.”
The testator in fact returned from Delhi and lived for seven years more, but he did not take steps to reclaim the document which he had entrusted to another, nor did he make another will. In holding that the will was not a contingent one, Their Lordships of the Privy Council observed :
“The testator’s contemplated journey was, no doubt, the occasion, and was probably the reason of his making the will, but there is in Their Lordships’ opinion, nothing in the words used by him to indicate that the will was to cease automatically to be operative on his return. He may quite possibly have had it in his mind that the will might require revision after his return, but that would not make it ‘contingent’; the intention in such a case would almost certainly be that it was to remain operative until a new will was made.”
And referring to the subsequent conduct of the testator Their Lordships continued :
“So far as the testator’s intention in making the will can be deduced from his subsequent conduct there is nothing to suggest that he thought himself to be from the moment of his return intestate and so continued until he died.”
12. We can now deduce the following rules on the subject.
(1) A conditional or contingent will is one which depends for its operation upon the happening of a specified condition or contingency. If the condition fails, the will is inoperative and void thereafter.
(2) Whether or not a will is to be regarded as contingent depends upon the intention of the testator. Courts will not regard a will as conditional or contingent unless the intention of the testator to make it so clearly appears either expressly or by necessary implication from the language of the will as a whole.
(3) A will is not made conditional by statements therein which have no reasonable or logical relation to the testator’s property or to the objects of his bounty.
(4) A statement in the will of circumstances which merely indicate the necessity or serve as the occasion or inducement for making the will will not render it contingent.
(5) Where it is doubtful whether the will is contingent upon the occurrence of an event the circumstances under which the will was executed or the language of the instrument may be considered.
13. Now the court below in arriving at its conclusion that Ext. I was only a conditional will relied mainly on two considerations :
(i) The wording of the first paragraph of Ext. I extracted above particularly the words in it “if for any reason I do not return” and
(ii) what it termed the “unequivocal circumstances” in the case disclosing such characteristic in Ext. I. These latter circumstance’s broadly speaking comprise on the one hand Venkiteswara Iyer’s subsequent declarations and conduct indicating that the will was no more of effect and on the other the negative attitude of the defendants themselves till after their discovery of Ext. I after the death of Venkiteswara Iyer. The declarations and conduct of Venkileswara Iyer as above had reference to the following facts. He had, during 1110 to 1114, (i.e.) before the trip to Banares, made investments, to the extent of a few thousand Rupees under a pro-note and chitty scheme in the joint names of defendants 2 to 4 minors, and under separate promissory note and hypothecation bond in the sole name of the 2nd defendant and with the 1st defendant to represent the minors in all the transactions as their guardian.
Some time after the return from Banares however, ‘he 1st defendant and her two adult sons by her first husband sought to interfere with Venkiteswara Iyer’s hold over these investments and this naturally led to his kicking up a row all round. There were for instance acrimonious exchange of letters between Venkiteswara Iyer and the step-sons–vide Ext. P and K (Mithunam 1117); between him and the debtors under the investments–vide Exts. F. O. and O-1 (1115-1116); between him and the 2nd defendant just then become major–vide Exts. N, B, F-4, B-1 (1117-1118) and finally interpleader suit O. S. 36 of 1115 by one of the promissory note debtors and OS. 28 of 1116 by himself as next friend of defendants 2 to 4 for recovery of the chitty moneys with the 1st defendant also on the party array.
We see here Venkiteswara Iyer asking his stepsons to fulfil their alleged promise to return the expenses be had incurred in taking the 1st and 4th defendants along with him in the Banares trip and their hot repudiation of such claim, The 1st defendant here takes occasion as defendant in OS. 28 of 1116 to repudiate legal marriage with Venkiteswara Iyer and plump in for a concubinage with him so that the defendants 2 to 4 can as her illegitimate children be wards of herself alone. We see again Venkiteswara Iyer setting up claim that the promissory note investments in the minor names were made only on a contingency as under Ext. I though without referring to it and further making demand of the 2nd defendant to pay back all the amounts he had so far spent on her education.
The 2nd defendant who had just passed her Intermediate and was proposing to go to Madras for M.B.B.S. pathetically protests against Venkiteswara Ivor’s harsh attitude and prays that she be loft alone for the future. This protest was made on 21-5-1118 under Ext. D-1. Soon later on 21-10-1118 came the declaration of the Cochin High Court in appeal in OS. 28 of 1116 that there was no legal marriage between him and the 1st defendant and he was not accordingly the legal guardian of defendants 2 to 4 vide Venkiteswara Iyer v. Dbanalekshmi Bank, 34 Cochin LR 673. In between on 12-7-1118 it was, that Venkiteswara Iyer withdrew Ext. I from its place of deposit at the Office of the Superintendent of Registration at Trichur.
14. The next set of facts emphasised by the court below consisted in the changed attitude of mellowed relationship with the defendants 2 to 4 and in the fresh attitude of cordial affection with the 1st plaintiff and his children which Venkiteswara Iyer developed since 1119 and maintained till his death in 1124 Chingom. It may be recalled that the 1st plaintiff had no male children born to him on Ext. I date and that was the cause of particular special provision therein.
The first male child, viz,, the 2nd plaintiff hero made his appearance in 1115 and the 3rd plaintiff some time later. On 4-9-1119 when the 2nd plaintiff was about four years old, Venkiteswara Iyer purchased certain property and under Ext. El dated 13-9-1119, apparently the date of the registration of the sale deed, he executed a will bequeathing the property to the 2nd plaintiff constituting himself property guardian also to the extent concerned.
Ext. G abstract of accounts in the Sree Radhakrishna Bank shows that during 1122 and 1123, Venkiteswara Iyer made deposits of large sums in the names of his grand-sons and grand-daughters though jointly with himself. Finally we see him writing to the 1st plaintiff in Kumbhom 1123 about six months before his death, that he bad just purchased large properties (Kelom lands) for Rs. 20,000/-and was proposing to execute a will thereof in favour of the grand-children — vide Ext. F6 dated 13-3-1943. On the other side, Venkiteswara Iyer appears to have put his relationship with the defendants 2 to 4 on a business Footing though at the same time he evidenced affectionate concern in their welfare.
For instance he gets the 4th defendant to acknowledge in writing even the smallest advance received and further makes it clear that those advances will be set off against the moneys of the 4th defendant in Venkiteswnra Iyer’s hands, apparently referring to the withdrawals from court made by Venkiteswara Tyer after furnishing security. See Ext. U accounts. Ext. III-a letter of Meenom 1120 (21-3-1945) from the 2nd defendant to Venkiteswara Iyer expresses her sense of gratefulness for his promise of financial help to her “though it may be unfair on my part to demand it”. Her later letter Ext. E of Karknrlasom 1121 (17-7-1946) evidences a borrowing of Rs. 50 from Venkiteswara Iyer in supplement of her own resources, for purchasing a watch.
15. The last set of facts noticed by the court below in the connection concerned the initial clash between the 1st plaintiff and the 3rd defendant after the death of Venkiteswara Iyer. The 1st plaintiff was then away and reached Vadakkancherry only after about eight days. But Pw. 6 son-in-law and Pw. 2 brother’s son of Venkiteswara Iyer were there immediately later and indeed were responsible for the seizure by the Police of the papers and records which have strewn about. On the rival applications made by the 1st plaintiff and 3rd defendant to the Tallappilly Magistrate for return of the records and papers, the order was made in favour of the 1st plaintiff but subject to prior issue of certified copies to the 3rd defendant of such records as he wanted.
Until copy was so received apparently, the existence of Ext. I was unknown to the defendants and this notwithstanding the assertion otherwise at the 2nd defendant as Dw. 5 and of the 3rd defendant as Dw. 6. For Ext. A proclamation by the 3rd defendant on 7-2-1124 in the “Express” newspaper in assertion of his superior right to take and administer Venkiteswara Iyer’s estate in rivalry to the 1st plaintiff failed totally to refer to any will of the deceased in favour of the defendants.
16. We think that the conclusion of the court below arrived at as above is correct and may be accepted. In our judgment Ext. I may not be unambiguous in the sense that it is not expressed to take effect only in the event of the happening of a contingency or condition. But it is on its whole language and in the light of the surrounding circumstances merely a conditional will, so as eventually to be inoperative because the contingency failed to happen. In our opinion the tests as to conditional wills as laid down by the authorities are fully satisfied in the instant case, particularly seeing that the nature of the dispositions under Ext. I indicated that it was temporary; Ext. I did not apply to after acquired property and again the testator could not have considered the entire period of contingency, viz., from between leaving his place and returning back to it as a period of special danger.
Learned counsel for the appellants referred to the “usual practice” of writing up wills on occasions of pilgrimage as here and argued that the pilgrimage was only the reason or motive for the execution of Ext. I and no question of condition really arose. We have only to say that no such practice is established in the case nor can it be possible to ascribe universality to it. On the other hand we have the evidence of Pw. 2 brother’s son of the deceased as to mention by Venkiteswara Iyer just before he left, of the execution of a will operative on condition that he died at Banares. There is also the evidence of Pw. 5 head clerk of the Registration Office as to consultation by Venkiteswara Iyer regarding the execution of only a “temporary” will.
Learned counsel then referred to the continued preservation by the testator of Ext. I, viz. long after the passing of the time for the occurrence of the possible event mentioned in it and said that it served to show that the possibility of the occurrence was only an inducement for the making of the will and not a condition precedent to its operation. But no such inference is possible in this case. For, Ext. I after ils withdrawal from the Registration Office cannot he said to preserve its original character as as a deposited will and such later preservation as there was, had no significance in the context of Venkileswara Iyer’s propensities.
Indeed most of the evidence in this case had been supplied by copies preserved by him. And if a will is conditional only, it will be null on the contingency not happening even though the testator subsequently refers to it as his will and though after his death it he found in his writing desk. Roberts v. Roberts (1862) 2 Sw. and Tr. 337. In fact such a will can also be revoked either by implication or by express words. Stokes Succession Act, 41 Wns. 132, referred to in Basu’s Indian Succession Act (1957) 4th Edn. 562. We therefore bold, along with the court below that Ext. I is a conditional will which ceased to be operative with return from his pilgrimage by Venkiteswara Iyer.
17. The next question is, assuming that Ex, I was operative after Venkiteswara Iyer’s return from his Banares trip, whether it was later revoked by him. Now there is no law in Cochin relating to Wills and providing for the revocation of a deposited will as here by the very withdrawal of the sealed cover containing it from the Registration Office, e.g. Section 18(h) of the Tvavancore Registration Act VI of 1074. There is also in Cochin no provision insisting on a continued deposit till death of the testator, for the will to come into operation at all, e.g. Section 118 of the Indian Succession Act regarding Bequests to religious or charitable uses. Nor have we any provision for revocation of unprivileged wills as in Section 70 of the Indian Succession Act as follows :
“Section 70. No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is herein before required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his directions with the intention of revoking the same”.
It would appear therefore that no particular formality is necessary under that law for revoking Ext. I, except possibly the rule of prudence that when an inference in favour of revocation is asked to be drawn from the conduct of the testator, the conduct must be such as to show that his mind was directed to the question whether the will was to remain in force or not and his conduct proceeded on the footing that the will was no longer to be in force. It is in this connection that the circumstances surrounding the withdrawal of the sealed cover containing Ext. I on 12-7-1118 from its custody with the Superintendent of Registration, as analysed by the court below and referred to by us earlier becomes specially useful. There can, it seems to us be no doubt that the situation which existed in Chingom 1114 and called forth the terms contained in Ext. I, was completely changed.
As we saw, the 1st defendant Nair wife and defendants 2 to 4 children through her who earlier had monopolised the affections of Venkiteswara Iyer had lost their vantage position. The 1st plaintiff who had got alienated in affections probably by his demand for partition had come to occupy a position of bemused tolerance. The 1st plaintiffs children, particularly the male ones just come forth became object of devoted love and affection. The provisional disposition in favour of the male grandchildren by Ext. I, if not an obstacle to the carrying out of his wishes had at least become useless and superfluous, It stands to reason therefore to say that the act of withdrawal of Ext. I by Venkiteswara Iyer was itself indicative of an animus revocandi thereof.
18. Reference may, in this connection be made to Venkayyamma v. Venkitaramanayyamma ILR 25 Mad 678 (PC). There the testator made his will and ‘deposited’ it in 1866 when he was ill. In 1867 he executed a power-of-attorney appointing a vakil to obtain the will out of the Registry and to restore it to him, Owing to some blunder this was not done. The testator died in 1869 and the question was whether the will had been revoked.
There was some evidence to show that the testator believed that he had destroyed the will. Persons existed whose interest it was to claim under it but no one ever did so, although it was difficult to believe that none of them knew of it. It was held that the testator’s intention to get his will back into his own possession and not to leave it cannot be doubted and the will must therefore be treated as revoked and their Lordships observed during the course of the judgment:
“The revocation of this will does not depend on any English Ordinance or Code; and actual destruction or a formal revocation in writing is not essential to constitute revocation.”
See Pertab Narain Singh v. Maharanee Subbao Kooer ILR 3 Cal 626 at p. 643 (PC).
In this latter case ILR 3 Cal 626 (PC), Sir R. P. Collier delivering the judgment of the Board had stated:
“It cannot, they think, be doubted that the will of a Hindu may be revoked by parol. The cases cited at the Bar show that this was the law of England before the Statute of Frauds was passed. Their Lordships are very sensible of the danger of acting upon such evidence as is ordinarily produced in the Courts in India in order to establish such a revocation, and they desire to say nothing which may induce those Courts to apply the law in such cases otherwise than with extreme caution.”
We are sensible of this warning. Even so, we have no hesitation in saying that Ext. I was revoked or became inoperative in the lifetime of Venkiteswara Iyer.
19. Learned counsel for the respondents sought to argue for revocation on the basis also of the alienation of the major portion of the properties movable and immovable covered by Ext. I by the testator before his death, as according to him, is clear from the schedule attached to the petition for letters of administration filed by defendants 2 to 4. There is no doubt that of the 5 items scheduled to that petition, only item 2 is seen mentioned in Ext. I. Item 1 is the property purchased by the testator in 1123 from ‘Kelom’ tarwad and referred to in Ext. F-6 as we saw already. This document of purchase has also been produced before us on the plaintiff’s side. Items 3 and 4 are outstandings apparently the result of post-Ext. I transactions.
One cannot be clear however, in the absence of definite investigation directed to it that the schedule to the petition M. P. 6 of 1124 is exhaustive of the properties left by the deceased at his death and covered by Ext. I. But even assuming it to be so there is no warrant in law for the proposition contended for by the learned counsel for the respondents that alienation of part of property covered by a will is indicative of revocation thereof. See Thakar Singh v. Arya Prithinidhi Sabha, Punjab, AIR 1928 Lab 934, where the giving of various gifts by the testator during his lifetime, of part of the property included in the will made by him, was held not to amount to revocation of the will. A will is after all an ambulatory document and so operative only upon the property which exists at the time of the testator’s death. We therefore overrule this ground. But this does not affect the finding already entered as to revocation of Ext. I otherwise.
20. Coming to the last question as to how far Ext. I will affect after acquired properties. We have already given hint of our view on this aspect, in the negative, while considering the question of the conditional nature of Ext. I . We will now discuss this aspect in greater detail. To begin with we remind ourselves that under Cochin Law there is no provision corresponding to Section 24 of the English Wills Act 1837 or to S. 90 of the Indian Succession Act, 1925. The provision under the common law of England before the Statute of 1837 was that a testamentary disposition of real property spoke as of the time of the execution of the will and not as of the time of the death of the testator.
Consequently the rule was well-settled that a will, in so far as it involved real property did not operate to pass land subsequently acquired. The reason ordinarily given was that a will was regarded as the appointment of a person to take a specific estate in the nature of a conveyance and that consequently the testator must have the power to dispose of the property at the time the will was executed. The law in Cochin has accordingly to be assimilated to this position.
21. Even assuming otherwise, the position of the defendants 2 to 4 here will fare no better. For Section 24 of the English Wills Act provided:
“Section 24. And be it further enacted, that every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.”
and similarly Section 90 of the Indian Succession Act said:
“Section 90. The description contained in a will of property the subject of gift, shall unless a contrary intention appears by the will, be deemed to refer to and comprise the property answering that description at the death of the testator.”
And speaking with reference to the English section, Lindley, L. J. in In re Portal and Lamb (1885 Ch D 50) said that the section
“refers to the real and personal estate comprised in the will, and nothing else. It does not say that we are to construe whatever a man says in his will as if it were made on the day of his death.”
The court therefore in construing a will must, in order to give effect to it, take into consideration the condition of the things with reference to which it was made. So it has been held if there is such a specific description of the subject of a gift as to show that what was intended to pass whether immovable or movable property, was some particular thing in existence at the date of the will, that is sufficient evidence of a contrary intention to exclude the application of the provisions of the section.
Per Joyee J. in Evans In re; Evans v. Powel (1909) 1 Ch 784.
22. When this contrary intention is deducible has been the subject of numerous decisions in England and India. As summarised by Basu, Law of Succession, 4th Edn. (1957) 264 the cases fall into two classes.
(1) Where the date of the will as opposed to death is distinctly referred to; as where a testator bequeaths “my house with the lands belonging thereto now occupied at B”, a field taken into occupation by the testator after the date of will, will not pass (Hutchinson v. Barrow(1861) 9 WR 538). If the words are not “essential” this section will have operation. Re Horton (1920) 2 Ch 1.
(2) Where there is particularity in the description of the specified subject of gift, showing that an object of existence at the date of the will was intended. For example, where a testator gives “my brown horse” or “the houses which I bought from me. “B”. (See Emuss v. Smith (1848) 2 De G & S 722). or “all t!ie stock which I have purchased” (Douglas v. Douglas (1854) Kay 400, 405), the description shows that it must have been intended to refer to the state of things, existing at the time of the will and not at the death of the testator. (Stokes, P. 57.
23. In Alavandar Gramani v. Danakoti Ammal MANU/TN/0358/1926 : AIR 1927 Mad 383 the eldest daughter an executrix was to take the balance amount remaining after certain payments from the estate also and “all other incomes due to me in respect of decrees etc.” It was held that the words were wide enough to constitute the executrix the residuary legatee and to embrace whatever property other than immovable, the testator may have died possessed of. Gurgenven J. with whom Kumaraswamy Sastry, Offi. C. J. agreed referred to Section 90 extracted above and said:
“although it is true that there are no express words indicating that the testator intended to provide for subsequent acquisitions, it is equally true that the will contains nothing to show that he wished to exclude them from its operation. The presumption against an intestacy in respect of those properties must, therefore, I think, prevail.”
24. We have on the other side the recent decision in Devaki Amma v. Yobannan 1956 KLT 5, where Koshi C. J. in delivering the judgment of the Bench observed:
“There are no general words of devise in the will in question. It purports to dispose of the properties then in ‘ existence or rather those that the testator then owned. The will purports to refer only to the properties that belonged to the testator on the date of its execution. Those properties are specifically described in it. “A contrary intention as envisaged in Section 90 of the Indian Succession Act is, therefore, clear on the face of the will. Though it states in the preface portion that the legatee shall he the testator’s heir, subsequent portions made it abundantly clear that the reference is only to the devolution of the properties described in the will by reference to their names, survey numbers, boundaries, etc, The legatee cannot, therefore, be taken to have obtained any title under the will to the properties acquired by the testator after date of the will.”
It is also useful to notice that the aspect of intestacy referred to in some of the cases and emphasised in MANU/TN/0358/1926 : AIR 1927 Mad 383 above referred to, in applying Section 90 cannot bear the significance attached to it. See the remarks of the Supreme Court in Gnambal Amma v. Raju Ayyar, MANU/SC/0045/1950 : AIR 1951 SC 103 as follows;
“The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian Court. It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances but it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. As Romcr L. J. observed in Re Edwards; Jones v. Jones (1906) 1 Ch 570 at p. 574: 75 LJ Ch 321:
“It cannot be that merely with a view to avoiding intestacy you are to do otherwise than construct plain words according to their plain meaning.”
25. In the will here, the properties immovable and movable and choses in action gifted to the defendants 2 to 4, are all meticulously specified and the residuary clause in paragraph 3 refers only to “such existing properties as are omitted to be specified.” There are no references to after acquired properties. The appellants cannot therefore lay claim to the after acquired properties.
26. Learned counsel for the appellants suggested that the principle of Section 153 of the Indian Succession Act may also come to his aid. That section deals however with conversion of property charged with a demonstrative legacy when there will be no ademption of the legacy and can have no relevance in this case where the legacies are all specific.
27. It follows that the decisions of the court below granting declaration and injunction in favour of the plaintiffs-respondents and refusing letters of administration to the defendants 2 to 4 are right and have to be confirmed. The appeals therefore fail and are dismissed with costs.