# THE SUPREME COURT REPORTS KOCHU GOVINDAN KAIMAL & OTHERS v. THAY ANKOOT THEKKOT LAKSHMI AMMA AND OTHERS

- **Citation:** [1959] Supp. 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeals ' Nos. 5 and 6 of 1955
- **Bench:** Venkatarama Aiyar, Gajendraga.Dkar, A. K. Sarkar .J J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-supreme-court-reports-kochu-govindan-kaimal-others-v-thay-ankoot-thekkot-1636
- **Pages:** 10

## Headnote

H'ill:-]ointly executed by three testators-Construction-Joint
tenants or tenants in common-Claim of entire properties by survivor
-Maintainability.
A will executed jointly by three persons contained, inter
alia, the following recitals:-" We have hereby settled and
agreed that all
the moveable and immoveable properties
acquired jointly and separately by us till now, and those which
_,
we may be so acquiring in future and those which have
devolved on us and those which we may yet be obtaining,
shall be held by us
in our
possession and under our
control and dealt with by us as we please till our death.''
There were bequests in favour of certain persons and the will
provided that in the event of the executants effecting any transfers or alienations of the said properties, either jointly or
severally till their death, the aforesaid persons shall have the
right only in respect of the remaining items of the properties.
Two of the testators having died the third claimed that he had
become entitled by surviorship to all the properties disposed of
by the document on the footing that it was in effect a transfer
1
of all their individual properties to themselves jointly as joint
tenants.
Held, that the document was a testamentary disposition by
the three testators of their properties operating on the death of
each testator on his properties, and was, in effect, three wills
combined in one. The properties were held by the testators as
tenants-in-common and the legatees mentioned in the will
would become entitled to the properties of the testator who
dies.
C1v1L
APPELLATE
JURISDICTION:
Civil Appeals
'
Nos. 5 and 6 of 1955.
Appeals from the judgment and decree dated
September 15, 1952, of the Madras .High Court in
Second Appeals Nos. 2256 of 194 7 and 2545 of 1948,
October z.
2
SUPREME COURT REPORTS [1959) Supp.
r95s
arising out of the judgment and decree dated Septem- ,.
G . -K . 41 her 19, 1946, of the Court of Subordinate Judge of
0
"'""";. ••m
Kozhikode in Appeal Suit Nos. 336 and 180 of 1946,
LaAshmi Amma against the judgment and decree dated October 9, 1945,
and June 29, 1946, respectively of the Court of District
trict Munsif, Chowghat, in O. S. Nos. 131 and 158 of
1945.
B. K. B. Naid.u, for the appellants.
V. Karunakara Menon and M. R. Krishna Pillai,
for the respondents.
1958.
October I. The Judgment of the Court
was delivered by
•
Vcnkalarama
VENKATARA!llA. AIYAR J.-The point for determina.
Aiy•• J.
tion in these two appeals is whether one Kesavan
Kaimal · who was one of three executants of a will
dated February 10, 1906, became entitled under that
will to the properties, which are the subject-matter of
these appeals.
The will is a short one, and is as follows :
"Will executed on 28th Makaram 1081 M. E.,
corresponding to 10th February, 1906, jointly by
Kunhan Kaimal, son of Karayamvattath Kathayakkal Kunhu Kutti Amma, Kesavan Kaimal, son of
Theyi Amma and Theyi Amma, daughter of Nani
Amma of Etathiruthi amsom and Etamuttan desom
in Ponnani Taluk. We have hereby settled and agreed
that all the movable and immovable properties
acquired jointly and separately by us till now, and
those which we may be so acquiring in future and
those which have devolved on us and those which we
may yet be obtaining shall be held by us in our possession and under our control and dealt with by us as we
please till our death and that subsequent to our death,
Kalliani Amma's children, Kali and Kunhu Kutty,
Thone. Amma's children, Parukutty, Kunhunni,Kochu
Govindan and Ramar, and the children of the deceased
Na.rayani Amma, namely, Kunhunniri, Kuttiparu and
Lakshmikutty and their children and the children
who may be born to them as also the children who
may be born of them, shall as our heirs and legal
representatives, hold the said properties in their
;
(1) S.C.R. SUPREME COURT REPORTS
3
possession and enjoy them hereditarily in equal shares
rgss
-(
amon2gsEt themselfives.
d
b
h
,_.
"d
Govindan Kaim111
.
xcept a ter our eat , t e aJ.oresa1
persons
v.
shal

## Text

THE SUPREME COURT REPORTS
KOCHU GOVINDAN KAIMAL & OTHERS
v.
THAY ANKOOT THEKKOT LAKSHMI AMMA
AND OTHERS
I
(VENKATARAMA AIYAR, GAJENDRAGA.DKAR and
A. K. SARKAR .J J .)
H'ill:-]ointly executed by three testators-Construction-Joint
tenants or tenants in common-Claim of entire properties by survivor
-Maintainability.
A will executed jointly by three persons contained, inter
alia, the following recitals:-" We have hereby settled and
agreed that all
the moveable and immoveable properties
acquired jointly and separately by us till now, and those which
_,
we may be so acquiring in future and those which have
devolved on us and those which we may yet be obtaining,
shall be held by us
in our
possession and under our
control and dealt with by us as we please till our death.''
There were bequests in favour of certain persons and the will
provided that in the event of the executants effecting any transfers or alienations of the said properties, either jointly or
severally till their death, the aforesaid persons shall have the
right only in respect of the remaining items of the properties.
Two of the testators having died the third claimed that he had
become entitled by surviorship to all the properties disposed of
by the document on the footing that it was in effect a transfer
1
of all their individual properties to themselves jointly as joint
tenants.
Held, that the document was a testamentary disposition by
the three testators of their properties operating on the death of
each testator on his properties, and was, in effect, three wills
combined in one. The properties were held by the testators as
tenants-in-common and the legatees mentioned in the will
would become entitled to the properties of the testator who
dies.
C1v1L
APPELLATE
JURISDICTION:
Civil Appeals
'
Nos. 5 and 6 of 1955.
Appeals from the judgment and decree dated
September 15, 1952, of the Madras .High Court in
Second Appeals Nos. 2256 of 194 7 and 2545 of 1948,
October z.
2
SUPREME COURT REPORTS [1959) Supp.
r95s
arising out of the judgment and decree dated Septem- ,.
G . -K . 41 her 19, 1946, of the Court of Subordinate Judge of
0
"'""";. ••m
Kozhikode in Appeal Suit Nos. 336 and 180 of 1946,
LaAshmi Amma against the judgment and decree dated October 9, 1945,
and June 29, 1946, respectively of the Court of District
trict Munsif, Chowghat, in O. S. Nos. 131 and 158 of
1945.
B. K. B. Naid.u, for the appellants.
V. Karunakara Menon and M. R. Krishna Pillai,
for the respondents.
1958.
October I. The Judgment of the Court
was delivered by
•
Vcnkalarama
VENKATARA!llA. AIYAR J.-The point for determina.
Aiy•• J.
tion in these two appeals is whether one Kesavan
Kaimal · who was one of three executants of a will
dated February 10, 1906, became entitled under that
will to the properties, which are the subject-matter of
these appeals.
The will is a short one, and is as follows :
"Will executed on 28th Makaram 1081 M. E.,
corresponding to 10th February, 1906, jointly by
Kunhan Kaimal, son of Karayamvattath Kathayakkal Kunhu Kutti Amma, Kesavan Kaimal, son of
Theyi Amma and Theyi Amma, daughter of Nani
Amma of Etathiruthi amsom and Etamuttan desom
in Ponnani Taluk. We have hereby settled and agreed
that all the movable and immovable properties
acquired jointly and separately by us till now, and
those which we may be so acquiring in future and
those which have devolved on us and those which we
may yet be obtaining shall be held by us in our possession and under our control and dealt with by us as we
please till our death and that subsequent to our death,
Kalliani Amma's children, Kali and Kunhu Kutty,
Thone. Amma's children, Parukutty, Kunhunni,Kochu
Govindan and Ramar, and the children of the deceased
Na.rayani Amma, namely, Kunhunniri, Kuttiparu and
Lakshmikutty and their children and the children
who may be born to them as also the children who
may be born of them, shall as our heirs and legal
representatives, hold the said properties in their
;
(1) S.C.R. SUPREME COURT REPORTS
3
possession and enjoy them hereditarily in equal shares
rgss
-(
amon2gsEt themselfives.
d
b
h
,_.
"d
Govindan Kaim111
.
xcept a ter our eat , t e aJ.oresa1
persons
v.
shall not lay claim to any of the properties belonging Lakshmi Amm11
to us.
3. It is settled that in the event of our effecting
Venkatar11ma
any transfers or alienations of the said properties,
Aiyar J.
either jointly or severally till our death, the aforesaid
persons shall have the right and freedom only in respect of the remaining items of properties to the exclusion of those items of properties included in the above
transactions.
4. It is hereby further settled and agreed that
subsequent to our death, save our legal representatives
aforesaid and such of those as may be born hereafter,
no other persons shall have the right to claim to or
right of entry upon the entire properties moveable and
immoveable found belonging to us.
And we have signed herein in the presence of the
undersigned witnesses-
(signed) Kunhan Ka.imal.
(
,, ) Kesa. van Kaimal.
(
,, ) Theyi Aroma."
Of the three testators, 'fheyi Amma. died first-the
exact date of her death does not appear and is not
very material-and Kunhan Kaima.l died thereafter
sometime in 1930. 'It is the case of Kesa.van Kaimal
that in the events which had happened, he had become
entitled by survivorship to all the properties disposed
of by the will, including those of Kunha.n Kaimal, Mld
on this footing he conveyed on October 14, 1938, seven
items of properties, of which three belonged to
Kunha.n Kaima.l, to one Sa.nkarankutti Kaimal and on
October 16, 1944, another three items of properties
which belonged to Kunha.n Ka.ima.l, to Kalya.ni and
Vijayan. These transfers led to the two litigations,
which have culminated in the present appeals.
The legatees under the will dated February 10, 1906~
instituted 0. S. No. 131 of 1945 in the Court of the
District Munsif, Chowgha.t, then in the Province of
Madras, for recovery of possession of three items of ,
properties which had belonged to Kunhan Ka.ima.l,
4
SUPREME COURT REPORTS [1959] Supp.
r958
after redeeming a mortgage for Rs. 100 created over
. --
.
those properties on February 3, 1901. The plaintiffs
Govindan Kaimal claimed that on the death of Kunhan Kaimal in 1930
Laksh•:; Amma . they had become entitled to those properties as legatees under the will. Defendants l to 3 represented the
Venkatarama
mortgagees. Defendant 6 was Kesavan Kaimal, and
Aiyar J.
defendants 4 and 5 were brought on record as persons
claiming to be entitled to the suit properties under a
deed of transfer by defendant 6, dated October 16,
1944. Defendants 4 to 6 contested the suit, and pleaded
that on a proper construction of the will, the properties of Kunhan Kaimal survived to Kesa.van Kaimal
on the death of the former in 1930, and that the
plaintiffs got no title to them. This contention was
overruled by the District Munsif, and the suit was
decreed. There were two appeals agail).st this decree,
A. S. No. 179of1946 and A. S. No. 180 of 1946 in the
Court of the Subordinate Judge, Calicut, the former
by defendants 4 and 5 and the latter, by defendant 6.
The Subordinate Judge agreed with the construction
put on the will by the District Munsif, and dismissed
the appeals. Against that decree, defendant 6 preferred S. A. No. 2256 of 1947 in the High Court of
Madras.
Basing himself on the deed of transfer dated October 14, 1938, Sankarankutti Kaimal instituted 0. S.
No. 158 of 1945 in the Court of the District Munsif,
Chowghat, for recovery of possession of three items ·of
properties, of which one belonged to Kunha.n Ka.imal
absolutely and the other two, to him and others as
co-owners. :In the plaint, he alleged that there was
an oral lease of the properties to the first defendant
and to one Kali Amma, whose legal representatives
were defendants 2 and 3, that the defendants were in
arrears in the payment of rent, and were disputing his
title to the properties, and that he was therefore
entitled to eject them. Defendant 4 is Kesa van Ka.ima.l, the vendor of the plaintiff. The contesting
defendants who were the same as the plaintiffs in
O.S. No. 131 of 1945 pleaded that under the will they
became entitled to a.II the properties of Kunba.n
Ka.imal, that the oral lease was untrue, and that the
(1) S.C.R. SUPREME COURT REPORTS
5
suit was barre~ by limitation. The District Munsif
r958
(
found all the contentions in favour of defendants 1 to 3 G
. -K .
1
d d.
.
d h
"t
A . t th" d
th
ouo1dan
aima
an
1sm1sse t e sm .
gams
1s ecree,
ere was
v.
an appeal, A. S. No. 336 of .1946, in the Court of the Lakshmi Amma
Subordinate Judge of Ottapalam, and that was dismissed, the Subordinate Judge agreeing with the
Venkatarama
District Munsif on all the issues.
Against his decree,
Aiyar J.
the pJaintiff preferred S. A. No. 2545 of 1948 in the
High Court of Madras.
Both the second appeals
came up for hearing before Raghava Rao J. who held
that on its true construction the will operated to vest
in the three testators all the properties covered by it
in joint ownership, that, in consequence, on the death
successively of Theyi Amma and Kunhan Kaimal,
their interest survived to Kesa.van Kaimal, and that
the transfers made by him on October 14, 1938, and
October 16, 1944, were valid. In the result, both the
second appeals were allowed, the suit for redemption,
0. S. No. 131 of 1945, was dismissed, and the suit
in ejectment, 0. S. No. 158 of 1945, wn.s decreed.
Against this judgment, the present appeals have been
·brought on a certificate granted by this court under
Art. 136.
The sole point for determination in these appeals is
whether under the will all the three testators became
joint owners of all the properties on which it operated.
After hearing the question fully argued, we have come
to the conclusion that that is not the effect of the
will, and that the judgment of the High Court contra
cannot be supported. There were three executants
of the will.
Each of them possessed properties, which
were his or her self-acquisitions. They also owned
some properties which they had jointly acquired, but
their title to such properties was as tenants-in-common
and not as joint tenants. Each of them would have
been entitled to execute a will of his or her proper~ies,
and if that had been done, the legatees named therein
would undoubtedly have been entitled to those pro-
;
perties. In the present case, the legatees who were
intended to take were the same persons, and it was for
that reason that the three testators instead of each
executing a separate will jointly executed it. It is,
6
SUPREME COURT REPORTS [1959] Supp.
•958
nevertheless, a. will by which ea.ch tests.tor bequea.thed
G
... ,-K .
1 properties belonging to him or to her, a.nd therefore on
•OV>rn••nai""'h
hf
h
hl
.
d.
v
t e dea.t o ea.c tests.tor, t e egatees ment1one
111
Lak,hmi Amma the will would be entitled to the properties of the
testator, who dies.
V•M•l•••m•
The contention of the respondents which has found
AiY•• J.
favour with the High Court is that the will must be
construed as a transfer by the several test.ators of 1111
their individual properties to themselves jointly aR
joint tenants. That would really be a transfer inter
vivoB and not a will. The word " will" is widely
known and used, and it ha.s a well-understood significance as meaning a disposition which is to take effect
on the death of a person. The executants of the will
could not have therefore intended that it should
operate inter vivoB.
Moreover, if the document was
intended to take effect as a present disposition, it
should have to be stamped under the provisions of the
Stamp Act, but the will is an unstamped document.
Coming to the recitals in the will, there are no
words by which the executants thereof divest themselves of their individual ownership and vest it in
themselves jointly. It is said that that could be
implied from the words" all the movable and immovable properties acquired jointly and separately by us
till now, and those which we may be so acquiring in
future and those which have devolved on us and those
which we may yet be obtaining shall be held by us in
our possession and under our control ". 'IV e are unable
to read any such implication in those words. It is
difficult to imagine how properties which were to be
acquired in future could form the subject-matter of a
disposition in praesenti. On the other hand, the true
purpose of this clause would seem to be to emphasise
that the execution of the will does not affect the rights
of the testators over their properties, and that is an
indication that it is to operate as a will. The matter
appears to us to be concluded beyond all doubt by the
terms of clause 3, which provides that the -testators
could alienate the properties jointly or severally. If
the properties were intended to be impressed with the
character of joint property, an alienation by any
\
.,
.. >
(1) S.C.R. SUPREME COURT REPORTS
7
one of them sfogly would be incompetent. In coming
1958
.( to the conclusion to which he did, the learned Judge
. -K .
1
.
l
. fl
d b
h
Govindan
aima
m the Court below was very large y m uence
y t e
v.
'
fact that the will dealt with, not only the separate Lakshmi Amma
properties of the testators but also of their joint properties, and that there was one disposition as regards
Venkata•ama
all of them. But this reasoning is based on a misconAiya• J.
ception of the recitals in the will. The will does not
refer to any joint properties of the testators but· to
properties jointly acquired by them-which is very
different. They would hold these properties as tenantsin-common, and their share therein would devolve as
their separate properties.
It was further argued for the respondents that it
could not have been the intention of Theyi Amma, one
of the testators, to benefit the legatees under the will
in preference to her own son, Kesa van Kaima], and
that, therefore, it must be held that she intended that
her son who was the youngest of the testators should
take all the properties. But if Kesa van Kaimal could
himself agree to bequeath his properties to those
legatees, we see nothing unnatural in his mother also
agreeing to bequeath her properties to them-they
being the heirs of the testators under the Marumakkattayam Law. Learned counsel for the respondents
sought to rely on the subsequent conduct of the
parties as showing that they understood the will as
conferring a joint estate on the testators. It was said
that it was in that belief that Kesa van Kaimal was
dealing with the properties of the other testators as his
own, after their death. It was also said that the
conduct of the other members of the tarwad, including
the plaintiffs, showed that they shared that belief. And
this was sought to be made out by reference to the
proceedings in E. A. No. 320 of 1938 in S. C. No. 480
of 1933. The facts were that one Kunhnnni Kaimal
obtained a decree against Kesavan Kaimal in S. C.
No. 480 of 1933, and in execution of that decree, he
brought "some of the tarwad properties to sale, purchas·
ed them himself and got into possession. The members
of the tarwad then filed an application, E. A. No. 320
of 1938, under 0. 21, r. 100, for redelivery of the
8
SUPREME COURT REPORTS [1959] Supp.
r958
properties to them on the ground that the decree and
Govind-;;l(aimal the sa!e p~oceedings were not ~in~in~ on them, a?d that . \.
v.
was d1sm1ssed. In the order d1sm1ssmg the application,
Lak>hmi Amma the District Munsif observed that under the will dated
February 10, 1906, Kesa.van Kaimal had the power to
v enhatarama
transfer the properties. This order was relied on in
Aiyar f.
these proceedings as operating as reB judicata in favour
of the respondents; but that contention was negatived by the Courts below, and has not been repeated
before us.
But these proceedings are now sought to
be relied on as showing that the members of the
tarwad did not dispute the title of Kesa van Kaimal to
the properties which were dealt with by the will.
As against this, the appellant referred us to a partition deed dated May 16, 1915, and a mortgage deed
dated March 4, 1926, to both of which Kesa.van
Kaimal was a party, in which he and other members
of the family had understood the will in question as
meaning that the testators held the properties covered
by the will in separate and exclusive ownership.
Whatever value one might attach to the above considerations if th£1re was any doubt m· uncertainty as
to tho meaning of the will, when once it is held that
the language thereof is clear and
unambiguous,
evidence of the subsequent conduct of t.he parties
cannot be admitted for the purpose of limiting or
controlling its meaning. In our view, the terms of the
will are clear, and the subsequent conduct of the
parties sought to be relied on must be disregarded as
wholly inadmissible.
We are accordingly of opinion
that the will dated :February 10, 1906, is what it
purports to be-a will, and nothing else. It does not
confer any rights inter se on the test>1tors ; it only vests
the title to the properties disposed of by it in the
legatees on the death of the testators. In this view,
the will must be held to be a testamentary disposition
by the three testators of their properties operating on
the death of each testator on his properties, and is, in
effect, th!'ee wills combined in one.
A joint will, though unusual, is not unknown to law.
In Halsbury's Laws of England, Hailsham's Edition,
Vol. 34, p. 17, para. 12, the law is thus stated:
)
....
(
)
(1) S.C.R. SUPREME COURT REPORTS
9
" A joint will is a will made by two or more testators contained in a single document, duly executed
by each testator, disposing either of their separate
properties, or of their joint property. It is not, however, recognised in English ln.w as a single will. It
operates on the death of each testator as his will disposing of his own separate property, and is in effeet
two or more wills". There is a similar Htatcment of the
law in Jarman on Wills, 8th Ed., p. 41. The following
observations of Farewell J. in Duddell in re. Roundway
v. Roundway (1) are apposite:
" ... .in my judgment it is plain on the authorities
that there may be a joint will in the sense that if two
people make a bargain to make a joint will, effect may
be given to that document. On the death of the first
of those two persons the will is admitted to probate as
a disposition of the property that he possesses. On the
death of the second person, assuming that no fresh
will has been made, the will is admitted to probate as
the disposition of the seconci. person's property ...... ".
It was also argued for the respondents that the will
might be construed as a mutual will, but that, in our
opinion, is an impossible contention to urge on the
recitals of the document.
A will is mutual when two
testators confer upon each other reciprocal benefits,
as· by either of them constituting the other his legatee;
that is to say, when the executants fill the roles of
both testator and legatee towards each other. But
where the legatees are distinct from the testators,
there can be no question of a mutual will. It cannot
be argued that there is, in the present case, a bequest
by the testators to themselves. There is nothing in
the will to support such a contention, which lvould be
inconsistent with the position taken by the respondents that there was a settlement of the properties
inter vivos converting separate properties into joint properties. In this view, on the death of Kunhan Kaimal
his properties vested in the legatees under the will
dated February 10, 1906, and therefore neither Kesavan Kaimal nor his transferees under the deeds could
lay any claim to th001.
(I) [1932] I Ch. 585, 592.
~
Go1,i11dau
1~· a-inrnl
v.
Laksh1ui Annna
Ven/,"taranla
!liyar .J.
10
SUPREME COURT REPORTS [1959] Supp.
1 95.8
In the result, the appeals are allowed, the decrees
c . d
J( .
1 passed by the High Court are set aside, and those of
~
'
0
"'" •:'.
aima the Courts below are rest-0red, with costs throughout.
Lakshnii A mn1a
V etikatarama
Aiyar j.
October I.
Appeals nllowed.
MAHARAJ KUMAR KAMAL SINGH
11.
THE COMMISSIONER OF INCOME-'.i'AX, BIHAR
& ORISSA
(VENKATARAMA AIYAR, GAJENDRAGADKAR and
A. K. SARKAR JJ.)
Income Tax-Re-assessment -
Escaped income -Assessment
order based on statement of law subsequently found to be erroneous--
W hcther assessment can be reopened-" Information",
"Escaped
income", meaning of-Indian Income-tax Act, r922 (XI nf r922),
as amended by Act 48 of r948, s. 34(r)(b).
In respect of the assessment of the appellant to income-tax
the Income-tax Officer excluded the amount of interest on
arrears of rent received by him, in view of the decision of the
Patna High Court in Kamakshya Narain Singh v. Commissioner
of Income-tax, [1946] 14 I. T. R. 673, that this amount was not
liable to be taxed, though an appeal against the said decision
to the Privy Council at the instance of the Income-tax Department was then pending. Subsequently on July 6, 1948, the
Privy Council allowed the appeal and held that interest on
arrears of rent payable in respect of agricultural land was i~ot
agricultural income as it was neither rent nor revenue derived
from land.
As a result of this decision the Income-tax Officer
took proceedings under s. 34 of the Indian Income-tax Act, 1922,
as an1ended, and revised the assessment order by adding the
aforesaid amount, on the footing that the subsequent decision of
the Privy Council was information within the meaning of
s. J4(1)(b) of the Act and that the Income-tax Officer had reason
to believe that a part of the assessee's income had escaped
assessment. It was contended for the appellant that s. 34(1)(b)
was not applicable to the case because (1) the information
referred to in the section means information as to facts and cannot include the ilecision of the Privy Council on a point of law,