# MANI MANI AND ORS v. MANI JOSHUA

- **Citation:** [1970] 1 S.C.R. 71
- **Court:** Supreme Court of India
- **Decided:** 1969-03-21
- **Case number:** Civil Appeal No. 683 of 1966
- **Bench:** J. c. SHAH, Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mani-mani-and-ors-v-mani-joshua-4685
- **Pages:** 9

## Headnote

fndian Succession Act (39 of 1925), s. 180--E/ection-Scope of.
By a settlement deed of 1935, the owner of certain properties settled
three itemll df property on his wife and two sons, the first appellant and
respondent one item for each.
Mutations were effected of the properties
so settled in favour of the donees.
Thereafter, he had executed three
wills.
In his last will and testament, there are two recitals that he had
cancelled the previous settlement deed and wills and that the last will was
to be the only document which should govern the disposition of his properties.
The testator, by that will, also purported to give to the respondent five items of property. ThOSe five items did not include the item
settled on the respondent in 1935, but included certain properties which
had been 'l"ttled in 1935 on the wifr and the first appellant.
The testator
further stated that the entire residue was bequeathed to the first appellant,
but did not state specifically that he was giving away to the first appellant
the property which he had settled on the respondent in 1935. After the
death of the testator the respondent filed a suit claiming the item settled
on him in 1935, on the basis that he had a right under the will to get
the five items bequeathed to him thereby, in addition to the item settled
on b.im in 19"35, because, by reason of the
settlement
in his favour it
could not form the subject matter of the bequest in favour of the first
appellant.
On the question whether by accepting the benefit under the will by
talcin_g the five items bequeathed· to him thereby, the respondent exercised
his nght of election and precluded himselt •from asserting any right to the
item settled on him in 1935.
HELD : Under s. 180 of the Indian Succession Act, if a legatee has
been given any benefit under a
will and his OlVn property has a/sc been
disposed of by that very will, the legatee must elect either to confirm such
disposition or to dissent from it, and in the latter case, he must relinG.uish /
al1 his claims under the will if he choose to retain
his own property.
The presumption being that a testator intends to dispose of only his own
property, general words will not usually be construed so as to include a
particular property over which he had no disposing power, unless, such
an intention appears on the face of the will either by express wcrds or by
necessary implication. [78 B-C]
In the prese.nt case, th~ terms of the will indicate,
that the testator
thought he could revoke the settlement deed and treat it as r.on..existent,
and that he meant to dispose of the entire estate including the properties
which had been the subject matter of the settlement of 193'i. The respondent, therefore, was put to election and could not claim the property settl·
ed on him in- 1935, H he wished to take the benefit under the will. (76
C-D: 77 A-C, 79 GI
Miller v. Thurgood, 10 L.T.R. 255, Whitley v. Whitiey, 54 E.R. 1104:
Re. Allen's Estate, Prescott v. Allen & Beaumont, (1945] 2 All. E.R. 264;
and Re : Booker, Booker v. Booker, 54 L.T.R. 239, 242, referred to.
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[I 970] I S.C.R.

## Text

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MANI MANI AND ORS.
v.
MANI JOSHUA
March 21, 1969
[J. c. SHAH AND A. N, GROVER, JJ.]
fndian Succession Act (39 of 1925), s. 180--E/ection-Scope of.
By a settlement deed of 1935, the owner of certain properties settled
three itemll df property on his wife and two sons, the first appellant and
respondent one item for each.
Mutations were effected of the properties
so settled in favour of the donees.
Thereafter, he had executed three
wills.
In his last will and testament, there are two recitals that he had
cancelled the previous settlement deed and wills and that the last will was
to be the only document which should govern the disposition of his properties.
The testator, by that will, also purported to give to the respondent five items of property. ThOSe five items did not include the item
settled on the respondent in 1935, but included certain properties which
had been 'l"ttled in 1935 on the wifr and the first appellant.
The testator
further stated that the entire residue was bequeathed to the first appellant,
but did not state specifically that he was giving away to the first appellant
the property which he had settled on the respondent in 1935. After the
death of the testator the respondent filed a suit claiming the item settled
on him in 1935, on the basis that he had a right under the will to get
the five items bequeathed to him thereby, in addition to the item settled
on b.im in 19"35, because, by reason of the
settlement
in his favour it
could not form the subject matter of the bequest in favour of the first
appellant.
On the question whether by accepting the benefit under the will by
talcin_g the five items bequeathed· to him thereby, the respondent exercised
his nght of election and precluded himselt •from asserting any right to the
item settled on him in 1935.
HELD : Under s. 180 of the Indian Succession Act, if a legatee has
been given any benefit under a
will and his OlVn property has a/sc been
disposed of by that very will, the legatee must elect either to confirm such
disposition or to dissent from it, and in the latter case, he must relinG.uish /
al1 his claims under the will if he choose to retain
his own property.
The presumption being that a testator intends to dispose of only his own
property, general words will not usually be construed so as to include a
particular property over which he had no disposing power, unless, such
an intention appears on the face of the will either by express wcrds or by
necessary implication. [78 B-C]
In the prese.nt case, th~ terms of the will indicate,
that the testator
thought he could revoke the settlement deed and treat it as r.on..existent,
and that he meant to dispose of the entire estate including the properties
which had been the subject matter of the settlement of 193'i. The respondent, therefore, was put to election and could not claim the property settl·
ed on him in- 1935, H he wished to take the benefit under the will. (76
C-D: 77 A-C, 79 GI
Miller v. Thurgood, 10 L.T.R. 255, Whitley v. Whitiey, 54 E.R. 1104:
Re. Allen's Estate, Prescott v. Allen & Beaumont, (1945] 2 All. E.R. 264;
and Re : Booker, Booker v. Booker, 54 L.T.R. 239, 242, referred to.
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[I 970] I S.C.R.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 683 of
1966.
Appeal by special leave from the judgment and order dated
January 3, I 965 of the Kerala High Court in Appeal Suit No. 86
1960.
S. V. Gupte and A. S. Nambiar, for the appellants.
Sarjoo Prasad, P. Kesava Pillai, M. R. K. Pillai and Lily
Thomas, for the respondent.
The Judgment of the Court was delive~ by
Grover, J. This is an appeal by special leave from a judgment
of the Kerala High Court by which the suit instituted by the respondent for recovery of properties described in Schedule A of the
plaint and for mesne profits etc. was decreed in reversal of the
decree of the trial court, dismissing the suit.
Uthupu Mani who died in the year I 943 had three sons. The
eldest son Uduppu died sometime between I 929 and 1935. The
second son Joshua is the respondent herein, the appellants being
the third son Mani Mani and Mariamma their mother and the
widow of Uthupu. Uthupu left some daughters also and appellant
No. 3 Mani Achamma is one of the daughters. The controversy
in the suit out of which the appeal has arisen was confined to a
residential house in an area of I 0 cents in Kottayam town. This
property along with several other properties originally belonged
to Uthupu who made certain settlements followed by wills.
The
first settlement was made in the year 1102 ME corresponding to
1927 AD when Uduppu was alive and Mani Mani was not born
On October 9, 1935 by means of another registered document
(Exh. A) called Udampady Uthupu settled properties thus: Those
comprised in A Schedule were given to Mariamma, in B Schedule
to Joshua and in C Schedule to Mani. The Schedules r.ontained
the following properties :
"To Mariamma (A Schedule\
Building construct.ed as Hall and the Cart-shed on
2 cents.
To Joshua ( B Schedule)
Storied building and 30 cents garden land.
To Mani Mani (C Schedule)
Four rooms facing West and 36 cents of garden land."
It appears and it has been so found that mutations were effected
of the properties so settled in favour of the donees.
Later on
~t.hupu executed a will. w~ich he.put in an envelope and deposited
it m the office of the District Registrar, Kottayam in January 1943.
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MANI MANI V. MANI JOSHUA (Grover, J.)
73
He executed a second will in April 1943 and kept it in custody
of the District Registrar. He executed a third will (Exh. 3) on
May 31, 1943 which was his last will and testament. In this will
he made a mention of the two settlements and the two previous
wills and declared that the last will would be final and operative.
His other declarations and statements in the will (Exh. 3) will be
presently considered as the entire controversy in the present litigation centers on a correct assessment and appraisal of their true
scope and effect.
It may be mentioned that by this will he left
five items of properties to Joshua.
These items include<l the
properties in C Schedule which had been given to Mani by the
settlement of 1935 and the cartshed on two cents of land c:>ntained in Schedule A which had been given to Mariamma by ti1at
settlement. There was no specific mention in the will (Exh. 3)
to the B Schedule properties which had been settled on Joshua
in 1935.
In 1955 Joshua filed a suit laying claim to the B Sch~dule
properties settled on him in the year 1935. His case was founded
principally on the allegation that B Schedule properties which had
been settled on him in 1935 vested in him by virtue of the settlement and he was the owner thereof and that the five items of properties which were left by the will (Exh. 3) were quite indepe.ndent of and separate from the aforesaid B Schedule properties. In
other words he asserted that he had a right under the will to get
the five items bequeathed to him therein in addition to the
B Schedule properties which had been settled on him in the year
1935 and which could not form the subject matter of any bequest
by Uthupu by reason of the said settlement. The position taken
up on behalf of Mariamma, Mani etc.-the defendants--was that
the plaintiff had accepted the benefit under the will by taking the
five items of properties bequeathed to him thereby which included
the properties originally allotted under the settlement of 1935 to
Mariamma and Mani. He had thus exercised his right of election
to take the properties under the will and was precluded from
asserting any right to properties given to him under the settlement
of 1935.
A number of issues were framed on the pleadings of the parties. The main question for consideration, howevu, was whether
the settlement of 1935 had been given effect to and whether the
plaintiff's suit merited dismissal on account of the applicability of
the doctrine of election embodied in s. 180 of the Indian Succession Act.
The trial court held that the settlement of 1935 had
H
been given effect to and mutations had been duly made in the
revenue register in accordance with the settlement deed.
[t was
found that the plaintiff had obtained title to and possession of the
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suit properties comprised in B Schedule in the settlement of 1935.
The suit was dismissed on the grcund that the will (Exh. 3)
clearly showed that the testator purported to cancel the arrangement by th". deed of settle~ent of 1935 and had made bequests
under the will to the plamttff of some of the properties which had
been settled on Mariamma and Mani in the year 1935. This
attracted the rule contained in s. 180 of the Succession Act and
since the plaintiff had elected to accept the benefit under the will
he was not entitled to claim any right on the basis of the deed of
settlement of 1935.
T~ High Court acceded to the argument pressed on behalf
ef Joshua who was the appellant before it that on a proper reading of the will it could not be held that the testator professed to
dispose of the suit properties which had been gifted to the plaintiff
by means of the settlement deed cf 1935.
The High Court was
influenced by the fact that there was no specific mention of these
properties in the will and according to it mere general words of
disposition could not be taken to contain an intention to deal with
the properties belonging to a third party, namely, the plaintiff.
The following part of the judgment may be reproduced :
"Having due regard to these passages in the vari011s
text-books based upon judicial decisions and which have
been placed before me by Mr. T. S. Krishnamoorthy
Iyer and Mr. M. U. Issac in my view, the decision rendered by the learned Subordinate Judg~ that section 180
of the Indian Succession Act applied and that the appellant has elected to take the benefit under the will and
therefore he cannot claim any further benefits on the
basis of Ex. A, cannot certainly be sustained. So far as
I could see, there is no specific disposition of the property already given to the plaintiff under Ex. A. by the
father in Ex. 3.
No doubt the father has dealt with an
item which was given under Ex. A to the first defendant
and a part of the item given to the 2nd defendant under
Ex. A in Ex. 3. If at all the question of the doctrine of
election and the applicability of section 180 of the
Indian Succession Act comes into play, in my view, the
election will really have to be made, not, by the plaintill, but by really defendants one and two."
As the applicability of the doctrine of the rule of election will
depend on a correct and true reading of the will ( Exh. 3 ) we proceecl to notice the main recitals and other oromincnt features to
be found in it The testator in the very beliinning referred to the
two eeulcments made by him in the years 1927 and 1935 and
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MANI MANI v. MANI JOSHUA (Grover,/.)
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the two wills executed by him in the year 1943 which were
deposited with the District Registrar, Kottayam. He said that by
the first will which he had executed he had invalidated the two
deeds of settlement. He then made the second will as he thought
that some changes were necessary. The third will, (Exh. 3), wu
lll&de because be felt pity for Joshua whom he bad apparently
left no or very little property by bis "previous wills. This is What
the testator said :
"But, since there originated in me an idea, on seeing the desperate look and repentant attitude of my .son
Joshua, that it is highly necessary to nullify certain historic st:ltements made in the pre_vi,ous will and also to
alter the conditions, such as share of my ass.els will not
be given to Joshua and to bis children in case he begets
any, laid down by me owing to the ill-will I had towards
Joshua, the eldest among the male children I have at
present and towards the mer.1bers of his wife's house
because of certain reasons which I don't now purport to
describe herein, this will is executed again· afresh; and
this alone will come into force after my life-time."
He further said that he had seven children alive at the time when
the will was made, namely two sons and five daughters out- of
whom two were married. He directed that after his death 'his
wife Marianima would take the entire income from his properties·
for meeting fanilly expenses and payment of revenue dues elic.
Then he made dispositions about payments in cash on the occasion of the marriages of his other daughters, with the exception
of Achamma, who was described to be weak in health, and in his
opinion,
should not contract matrimony. An
amount
of
Rs. 3,000/- Wils to be deposited in her name which she was enF
titled to .withdraw if she wa8 married.
During the period lilt
remained unmarried she was entitled to take interest on that
deposit for personal expenses.
He gave other directions abollt
arrangements for her residence etc. in case she· remaine<I unmarried.
Then he proceeded to make the provision about
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bequests in these words ;
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''Though r had provided in my previous will that
my eldest son JQShua shall have only some right in tho
nature of a life interest over my assets in respect of some·
petty items of profits; ............ Therefore I have
forgiven him and I hereby allow him to enjoy for ever
the immovable properties described hereunder; and my
younger son Mani Mani shall alone be the sole heir ·of
the remaining entire asBels belonging to me. But, my
two sons shall become entitled to the properties allotted
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to them only after my two daught~rs are married and
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the depo;it is made in Achamma's name and all the
htigations in which I am a party are ended; and till that
time my wife Maria:nma shall take and conserve all
the profits ~' described above in che status of an undivided family."
The only other declaration or statement in the will which deserves
notice is the following :
"This will is execut:W by resolving as these and
totally changing all the deeds registered by me prior to
this and the Wills kept in custody; and this Will aione
shall, unless I act otherwise, be and ought to be in force
in future."
Now it is quite clear that the testator was somehow under the
impression that he was competent to cancel and revoke not only
the previous wills but also the two settlements including the one
made in the year 1935. It appears that although by the registered
deed of 1935 he had gifted certain properties to his wife and two
sons he thought that he could undo what he had done by making
a will by which he left virtually no property to Joshua since he
was annoyed with him.
That is apparently the reason why he
clearly stated in the will (Exh. 3) in the very beginning that he
had executed a will "on 9th Makarom this year in accordance
with law, invalidating the above two deeds."
He relented in favour of Joshua and that is the reason why
he made the will (Exh. 3) but his state of mind continued to be
the same, namely, he considered that he was fully competent and
entitled to cancel all previous settlements and wills and start, as
if it were, on a clean slate. The detailed bequests which he made
(Exh. 3) indicate that ho me.mt to dispose of the entire estate
including the properties which had been the subject matter of the
settlement made in the year 1935. There are two strong indications in the will (Exh. 3) of his having dealt with the entire property which he thought he could dispose of or in respect of which
he could make bequests and leave legacies on the footing that no
title had passed to any of the donees under tho settlement of 1935.
The first is the recital both in the beginning and towards the concluding part of Exh. 3 that he had cancelled the previous settlements and wills and that the only document which would govern
the disposition of propenies would be Exh. 3.
Even if it be
assumed, as has been suggested, by learned counsel for Joshua
-respondent-that the declaration about invalidating the two
deeds of settlement was confined to the first will executed in
January 1943, the <tatement made towards the conclusion of the
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will (Exh. 3) leaves no doubt that the testator sought to revoke
not only the previous wills but also the registered deeds which
clearly meant th~ deeds of settlement executed in 1927 and 1935
respectively. The second significant fact is that the testator purported to give to Joshua five items of property which included
certain properties which had been given by the settlement of 1935
to Mariamma and Mani. If the testator did not want to make
any disposition of those properties which formed the subject matter
of gift in 1935 there was no reason why he should have given to
Joshua properties which had been gifted to Mariamma and Mani.
All this could have happened only if the testator .was treating the
settlement of 1935 as non-existent having been revoked 'by him.
We are satisfied that a correct reading of the will (Exh. 3) yields
the only result that the testator Uthupu treated the entire properties which had formed the subject matter of gift or otherwise as
his and which could be disposed of by him as he liked. The High
Court was in error in disagreeing with the trial court on this
matter.
.
The argument of learned coumel for the respondent is that
the testator predominently intended to l!)ake better provision for
Joshua with whom he had been annoyed for various reasons and
whom he had left comparatively .Jess or no property by the wills
executed prior to Exh. 3. It is suggested that the testator could
not have intended to have taken away what had already beC1;1
gifted to Joshua in the year 1935 of which mutation had tak;en
place and possession had passed. It is further pointed out that
the testator did not specifically say that the properties which had
been gifted to Joshua in 1935 were now being left by the will
(Exh. 3) to Mani. . A great deal of reliance has been placed on
the statement in the text books on which the High Court relied
and certain decisions for the view that no case for election can
arise where the testator does not dispose of the properties in question specifically and has merely used general words of devise.
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such circumstances, it has been stated, the testator should be take•
to have disposed of only that property which was his own and
which he was entitled to deal with and bequeath in law.
It is
urged that, in the present case, the testator bad already made a
valid and legal settlement in 1935 of the suit property. He could
not have thus ·dealt with or bequeathed that property and in the
absence of express and specific mention in Exh. 3 that he was
doing so the rule of election would not be attracted.
The circumstances in which election takes place are se• out
in s. 180 of the Inclian Succession Act. According to its provisions, "where a person by bis will professes to dispose of some-
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[1970) I S.C.R.
tiring which he has no right to dispose of, the person to whom
the thing belongs shall elect either to confirm such disposition or
to dissent from it, and, in the latter case, he shall give up any
bmefita which may have been provided for him by the will."
The English law, however, applies the principle of compensation
allo to election. It means the electing legatee has to compensate
the Qisappointed legatee out of the property given to him.
As
pointed out in the Indian Succession Act by N. C. Sen Gupta,
p. 295, the rule which has been embodied in s. 180 does not
recognise the principle of compensation.
Under its provisions if
the legatee has been given any benefit under the will and his :>wn
p1operty has also been di~po51:<1 of by that very will he must
relinquish all his claims under the will if he chooses to retain his
property. It is not disputed, in the present case, that if the testator has, by Exh. 3, disposed of the property which had been gifted
to Joshua the rule embodied in s. 180 would become applicable
and Joshua cannot take the property which had been gifted to him
if he has chosen to retain the property bequeathed to him by the
will. The question is whether the testator having omitted to state in
&h. 3 that he was giving away the properties which had been
gifted to Joshua in the year 1935 to Mani to whom only a residuary bequest of the entire remaining assets had been made the
principle of election will become inapplicable.
Our attention has been invited on behalf of Joshua to the
following observation of the Master of Rolls in Miller v.
Thurgood(') :
"If a testator, having an undivided interest in any
particular property, disposes of it specifically, and gives
to the CO-Owner of the property a benefit under his will,
the question of election arises. But if he disposes of it,
not specifically, but only under general words, no question of election arises."
But as pointed out in para. 1097, p. 592, Ha/sbury's Laws of
England, Vol. 14, in order to raise a case of election under a will
it muat be clearly shown that the testator intended to dispose of
the particular property over which he had no disposing power.
This intention must .appear on the face of the will either by express
words or by necessary conclusion from the circumstances disclosed by the will. Tiie presumption, however, is that a testator
intends to dispose of his own property and general words will not
llSllally be construed so as to include other property. In Whitley
v. Whitley(') the wife of the testator was entitled to a share of the
produce of the R. estate, which had been directed to be sold. By
{I) JO L. T. R. 255.
(2) 54 E. R. 1104.
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bis will the testator gave all "his share, estate and interest" in the
R. estate to his daughter and benefit out of his own estate to his
widow.
It was held that the will raised a case for election as
against the widow. The Master of the Rolis (Sir John Romilly)
said that the testator intended to dispose of the property by will
which was not his but belonged to his wife and she having taken
and enjoyed the benefit provided for her under his will must be
considered as having elected.
The property, must, therefore go
as if it had been the testator's property. This case illustrates b.<iw
the rule of election has been applied where, even though, general
words had been used but by necessary conclusion from the circumstances disclosed by the will it was inferred that the testator
intended to dispose of the property which belonged to his wife
and not to him. According to the footnote in Halsbury's Laws
of England, Vol.
14 (supra), in the case of a will one
may even gather an intention by the testator to include
property belonging to another in a gift of residue for it
is necessary to construe a will as a whole.
Reference has
been made to Re Allen's Estate, Prescott v.
Allen Cl1ld
Beaumont('), where a gift of the "residue of my property" was
constru~d as the residμe of the testator's ostensible property.
A
fairly strict approach in such cases has bee!I( indicated by Chitty 1.,
in Re Booker; Booker v. Booker(') in these words :
"A great safeguard in applying that doctrine is
thls--that you are not merely to strain words to make
them include ·that which does not belong to the testator;
but you must be satisfied beyond all reasonable doubt
that it was his intention to include that which was not
his own, and that you cannot impute to him after having
read his will any other intention."
It is thus necessary to look at the will and read it carefully which
has been done by us and we have no· manner of doubt that
Uthupu, the testator, intended to include properties gifted to
Joshua by the settlement of 1935 in the bequest which he made
to Mani of the entire residue.
Joshua was thus put to election
and could not claim those properties if he wished to take the benefit
under the will.
. In the r~sult the. appeal is allowed and the judgment of the
High Court 1s set aside and that of the trial court restored with
costs in this Court.
H
V.P.S.
Appeal allowed.
---------
(1) [1945) 2 AIL E. R, 264,
(2) 54 L. T. R, 239, 242,