Mary Chacko v. Rinoy Martin and Roslin alias Lissy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **THURSDAY, THE 15TH DAY OF JUNE 2017/25TH JYAISHTA, 1939** **RSA.No. 1263 of 2016 () ------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 30-07-2016 IN AS 236/2014 of ADDITIONAL DISTRICT COURT -IV, THRISSUR** **AGAINST THE JUDGMENT AND DECREE DATED 19-08-2014 IN OS 42/2008 of ADDITIONAL SUB COURT, IRINJALAKUDA** **APPELLANT/1ST APPELLANT/1ST DEFENDANT:** **--------------------------------------** **MARY CHACKO, AGED 66 YEARS, W/O.LATE THEKKETHALA CHACKO, KORATTY VILLAGE, KORATTY DESOM, CHALAKUDY TALUK, PIN-680308** **BY ADVS.SRI.RAJU SEBASTIAN VADAKKEKKARA SRI.S.KRISHNA KUMAR (MANGALAM)** **RESPONDENTS/RESPONDENT & 2ND APPELLANT/PLAINTIFF & 2ND DEFENDANT:** **------------------------------------------------------** **1. RINOY MARTIN, AGED 14 1/2 YEARS, S/O.LATE THEKKETHALA MARTIN CHACKO, VADAKKUMBHAGAM VILLAGE, VADAKKUMBHAGAM DESOM, ALUVA TALUK, REPRESENTED BY GUARDIAN-CUM-UNCLE PAULY JOSEPH, AGED 52 YEARS, S/O.LATE JOSEPH, VAZHAPPILLY HOUSE, CHENKAL, KALADY, PIN-683574. 2. ROSLIN @ LISSY, AGED 49 YEARS, D/O.LATE THEKKETHALA CHACKO, KORATTY VILLAGE, KORATTY DESOM, CHALAKUDY TALUK, PIN-680308. R1 BY ADVS. SRI.DINESH R.SHENOY(CAVEATOR) SRI.EBIN MATHEW(CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **[CR]** ## **B. KEMAL PASHA, J.** ## ===================== R.S.A. No.1263 of 2016 ===================== _Dated this the 15[th] day of June, 2017_ ## **J U D G M E N T** ## **----------------------** When two independent bequests are created in a Will in respect of the very same property, and when the said two bequests are totally irreconcilable, which one will prevail? 2. Late Chacko had executed Exhibit-A6 registered Will in respect of his properties, in the year 2001. In the first portion of Exhibit-A6 Will, it seems that he had made a bequest in respect of the properties scheduled in the Will, in favour of his wife Marykutty Chacko, who is the 1[st] defendant. Along with that bequest, a condition was R.S.A. No.1263 of 2016 : 2 : incorporated that in case, any property is left behind after the death of the testator and the 1[st] defendant, the same shall devolve on their only son Martinmon. At the later part of the very same Exhibit-A6 Will, the testator again made an independent bequest to the effect that all his properties then in _presenti_ and in _futuro_ shall absolutely devolve on his son Martinmon on the death of the testator. The testator predeceased Martinmon. Thereafter, Martinmon also died on 20.03.2007, leaving the plaintiff as his only son. The plaintiff was then a minor. The mother of the plaintiff is mentally ill and incapable of taking care of herself and to look after and maintain the minor. The uncle of the minor was appointed by the District Court, Ernakulam as his guardian through Exhibit-A1 order dated 25.06.2010 in O.P. (Guardian) No.29 of 2009. After the death of his father, the minor, as plaintiff, represented by his uncle as his next friend, filed a suit for partition for getting the properties partitioned. R.S.A. No.1263 of 2016 : 3 : 3. In the partition suit, the paternal grandmother of the plaintiff, who is the 1[st] defendant herein, propounded a subsequent Will dated 22.11.2005, allegedly executed by the very same testator. When the minor and his next friend could realise that the grandmother of the minor, who is the 1[st] defendant herein, had made attempts to propound a Will, as the last Will of the testator, which was not in fact executed by the testator, in order to make illegal claims over the properties in question, the minor had no other go than to file O.S.No.42 of 2008 before the Additional Subordinate Judge's Court, Irinjalakkuda, for declaring the said Will propounded by the 1[st] defendant in the partition suit, as void and for declaration that the plaintiff has got title over the properties left behind by late Chacko, on the strength of Exhibit-A6 Will No.196 of 2001. 4. The suit was hotly contested before the trial court. The trial court ultimately found that Exhibit-B1 Will, propounded by the 1[st] defendant, is void. The trial court R.S.A. No.1263 of 2016 : 4 : declared the title of the plaintiff over the properties. 5. Aggrieved by the said judgment and decree, the grandmother of the plaintiff, who is the 1[st] defendant herein along with the 2[nd] defendant in the suit, preferred A.S.No.236 of 2014 before the District Court, Thrissur. The IV Additional District Court, Thrissur, dismissed the appeal, by confirming the judgment and decree passed by the trial court. Presently, the 1[st] defendant alone has come up in Second Appeal. 6. The Second Appeal has come up for admission. 7. Heard the learned counsel for the appellant/1[st] defendant and the learned counsel for the 1[st] respondent/plaintiff. 8. The learned counsel for the appellant has relied on the decision in **Madhuri Ghosh and another v. Debobroto Dutta and another** [2016(10) SCC 805]. The learned counsel for the 1[st] respondent has relied on the decisions in **(Kunwar) Rameshwar Bakhsh Singh and others v.** R.S.A. No.1263 of 2016 : 5 : **(Thakurain) Balraj Kuar and others** [AIR 1935 Privy Council 187], **Navneet Lal alias Rangi v. Gokul and others** [AIR 1976 SC 794], **Ambunhi v. Ganesh Bhandary** [1995 KHC 387]=[1995 (2) KLT 776] and **Balwant Kaur and another v. Chanan Singh and others** [AIR 2000 SC 1908]. 9. What has to be considered is the legality and validity of the two independent bequests made by the testator in Exhibit-A6. At the first portion of Exhibit-A6 Will, he has made a bequest of the properties scheduled in the Will in favour of the 1[st] defendant, thereby enabling her to alienate the property and to possess it absolutely for her life. A further Clause has been incorporated with the said bequest, thereby stipulating that in case of any residue of the property, on the death of the testator and the 1[st] defendant, the same shall devolve on their only son Martinmon. It is strange to note that as the last clause of bequest in the Will, the testator has made the following bequest: _‘All the properties I have in presenti and that may_ R.S.A. No.1263 of 2016 : 6 : _be acquired by me in futuro, both movables and immovables, shall, on my death, devolve exclusively on my son Martinmon, absolutely with full rights to alienate and to enjoy.’_ Legible signature is seen affixed in Exhibit-A6 by the testator in English. According to the plaintiff, when such different bequests were there in a Will, which are totally irreconcilable each other, the latter bequest will prevail, as per Section 88 of the Indian Succession Act. 10. May be, by realising the invalidity of the bequest created through Exhibit-A6 in favour, it seems that the 1[st] defendant has propounded Exhibit-B1 Will dated 22.11.2005. Even though in Exhibit-A6 Will, the testator had affixed his legible signature in English, in Exhibit-B1 Will, what was affixed as his signatures are marks of the ‘Cross'. Both the courts below have rightly disbelieved Exhibit-B1, propounded by the 1[st] defendant. On going through the reasoning given by both the courts below, this Court is satisfied that there is absolutely nothing to interfere with the R.S.A. No.1263 of 2016 : 7 : facts found by both the courts below concurrently, regarding Exhibit-B1. Both the courts below have rightly disbelieved Exhibit-B1 and the said findings are not liable to be interfered with. What remains is regarding the validity of the bequest in Exhibit-A6. 11. Section 88 of the Indian Succession Act says: _“_ _**88. The last of two inconsistent clauses prevails** .--Where two clauses of gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail._ ## _Illustrations_ _(i) The testator by the first clause of his Will leaves his estate of Ramnagar “to A”, and by the last clause of his Will leaves to “to B and not to A”. B will have it._ _(ii) If a man, at the commencement of his Will gives his house to A, and at the close of it directs that his house shall be sold and the proceeds invested for_ R.S.A. No.1263 of 2016 : 8 : _the benefit of B, the latter disposition will prevail.”_ The Section as well as its illustrations are clear. Where two clauses of bequests made in a Will are irreconcilable each other, and when they cannot possibly stand together, the last bequest shall prevail. The aforesaid illustrations make the above very clear. The illustrations clearly show its applicability to the facts and circumstances of the present case. The learned counsel for the appellant has invited the attention of this Court to the decision in **Madhuri Ghosh’s case** ( _Supra_ ) and argued that where an absolute bequest has been made in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same Will to other persons will be of no effect. It seems that there is no discussion in the judgment in **Madhuri Ghosh’s case** ( _Supra_ ) rendered by a Two judges' Bench, regarding the true interpretation of Section 88 of the Indian Succession Act. R.S.A. No.1263 of 2016 : 9 : 12. The learned counsel for the 1[st] respondent has relied on the decision in **Rameshwar Bakhsh Singh’s case** ( _Supra_ ), rendered by a Three Judges' Bench of the Privy Council, wherein it was held: _“These two documents constitute the testamentary instrument, and in interpreting them it is the duty of the Court to find out the intention of the testator. It is clear that that intention is to be gathered from the language used by the testator, because it is the words used in the instrument by which he has conveyed the expression of his wishes. The meaning to be attached to the words may however be affected by surrounding circumstances; and, when this is the case, those circumstances should be taken into consideration. As laid down by S.82, Succession Act, the meaning of any clause in a ‘will’ is ti be collected from the entire instrument; and all the parts_ R.S.A. No.1263 of 2016 : 10 : _of a will are to be construed with reference to each other and so as, if possible, to form one consistent whole. Where it is not possible to reconcile all the parts, the latter must prevail. (emphasis supplied).”_ Therefore, it was held that when two clauses of the very same Will cannot be reconciled and if the same cannot go together, the latter one must prevail. 13. In **Navneet Lal alias Rangi’s case** ( _Supra_ ), it was held: _“It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take_ R.S.A. No.1263 of 2016 : 11 : _effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will.”_ 14. In construing a Will, when repugnant clauses are there, all efforts should be given to reconcile the clauses so that the courts shall give effect to the intention of the testator to make a testamentary disposition. At the same time, it was held that if the first interest created is valid, the subsequent interest cannot take effect. In view of Section 88 of the Indian Succession Act, the bequest created in favour of the 1[st] defendant has become invalid and inoperative, in the light of the latter bequest created in favour of Martinmon. Therefore, it has to be held that the first interest created is not valid in the eye of law. Only when the first bequest is valid, it has to be preferred in view of the decision in **Navneet Lal alias Rangi’s case** ( _Supra_ ). R.S.A. No.1263 of 2016 : 12 : 15. In **Ambunhi’s case** ( _Supra_ ), the manner in which a Will has to construed, has been discussed. It was held therein that the rules governing the interpretation of a ‘Will’ are different from the rules which govern the interpretation of other documents; say for example, a Sale Deed or a Gift Deed or a Mortgage Deed or any other instrument, by which interest in immovable property is created. In those documents, other than a Will, when there is inconsistency in between the earlier part and the subsequent part or earlier clause and the subsequent clause, the earlier part or the Clause as the case may be, will prevail. In the case of a Will, when inconsistent clauses are there, the last intention of the testator has to be given effect to and therefore, the latter clause is held to prevail. In paragraphs 3 and 4 of the **Ambunhi’s case** ( _Supra_ ), it was held: _“The rules of interpretation of the “Will” are different from the rules which govern the interpretation of_ R.S.A. No.1263 of 2016 : 13 : _other documents say, for example, a Sale Deed or a Gift Deed or a Mortgage Deed or, for that matter, any other instrument by which interest in immovable property is created. While in these documents if there is any inconsistency between the earlier or the subsequent part or specific clause inter-se contained therein the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of “Will”, the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails._ _A Will may contain several clauses and the latter clause may be_ R.S.A. No.1263 of 2016 : 14 : _inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well known maxim “cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est” which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier (See:Hammond v. Treharme 1938 (3) All England Reports 303).”_ 16. The words of caution are also given in **Ambunhi’s case** ( _Supra_ ) relying on **Rameshwar Bakhsh Singh’s case** ( _Supra_ ) that the said rule under Section 88 of the Indian Succession Act can be invoked, only if, different clauses cannot be reconciled. Here, at any stretch of imagination, the earlier bequest made in favour of the 1[st] defendant and the latter bequest made in favour of Martinmon in Exhibit-A6 cannot stand together and therefore, it cannot be R.S.A. No.1263 of 2016 : 15 : reconciled. When these bequests are irreconcilable, the only option is to give validity to the latter bequest made in favour of Martinmon. 17. In **Balwant Kaur’s case** ( _Supra_ ), it was held in paragraph 9, after discussing Section 88 of the Indian Succession Act, as follows: _“This is obviously on the principle that the last clause represents the latest intention of the testator. It is true that in the earlier part of the will, the testator has stated that his daughter-Balwant Kaur shall be the heir, owner and title-holder of his entire remaining movable and immovable property but in the later part of the same will he has clearly stated that on the death of Balwant Kaur, the brothers of the testator shall be the heirs of the property. This clearly shows that the recitals in the later part of the will would operate and make appellant_ R.S.A. No.1263 of 2016 : 16 : ## _No.1 only a limited estate holder in the property bequeathed to her.”_ 18. In the case of a Will, the same cannot take effect till the death of the testator. It shall come into force only on the death of the testator and till then the testator is empowered to make other Wills or other dispositions in respect of the property covered by the Will. Therefore, the latest intention of the testator has to be given effect to. This is the reason why, Section 88 of the Indian Succession Act says that the later bequest or clause should prevail, when the clauses regarding the bequest are irreconcilable and they cannot stand together. 19. Here, the last intention of the testator, as is clearly discernible from Exhibit-A6, is that all his properties, which was then in _presenti_ and in _futuro,_ both movables and immovables, shall pass on to his only son Martinmon. Therefore, the said clause of bequest has to be given effect to and the same shall prevail. Matters being so, there is R.S.A. No.1263 of 2016 : 17 : absolutely nothing to interfere with the concurrent judgments passed by the courts below. This Regular Second Appeal does not involve any substantial questions of law, when such questions have already been settled by the Apex Court as well as the Privy Council. This Regular Second Appeal, therefore, fails and is only to be dismissed, and I do so. In the result, this Regular Second Appeal is dismissed. In the nature of this Appeal, parties shall bear their respective costs. All the pending interlocutory applications in this Regular Second Appeal are closed. Sd/- **B.KEMAL PASHA,** DSV/17/6/17 // True Copy // P.A. To Judge