Recently, the Hon'ble Supreme Court of India (Supreme Court) in the case of Dr. K.S. Palanisami (Dead) vs Hindu community in general and citizens of Gobichettipalayam and others (Civil Appeal No. 5924 of 2005 decided on 9 March 2017) ruled upon the issue of whether a testatrix had an ‘absolute’ right to deal with the properties under a ‘joint and mutual will’. In arriving at its judgment, the Supreme Court held that courts are not entitled to ignore clear words or add something of its own or dilute the meaning of any clear word used in the legal declaration of a testator with respect to his property which he desires to be carried into effect after his death (Will).
After referring several cases to distinguish a joint Will from a ‘joint and mutual’ Will, the Supreme Court took the view that the solemn duty of the court is to find out and give effect to the intention of testator and a Will should not be analysed by encasing it within a conceptual strait-jacket.
One, Mr Palaniappa Chettiar and his wife, Rangammal jointly executed a Will dated 27 September 1968 (First Will). The First Will stated that on the death of either of them, the survivor shall enjoy the entire property absolutely. Separately, the First Will enumerated various charities to be undertaken from the income derived from the properties listed in the First Will.
After the death of Palaniappa Chettiar, Rangammal alienated about 10 properties by separate sale deeds which were in her name as well as few properties which were in the name of her deceased husband.
It was argued before the Supreme Court that since the First Will was a joint and mutual Will, Rangammal had no right to alienate any property after the death of Palaniappa Chettiar. As such, it was argued that all alienations of the properties made by her after the death of Palaniappa Chettiar were null and void.
In relation to the conflict that whether the First Will was a joint Will or a joint and mutual Will, the Supreme Court initially expounded the principles to differentiate between a joint Will and a joint and mutual Will. The Supreme Court explained that a joint Will is a Will made by two or more testators contained in a single document, duly executed by each testator, disposing either their separate properties or their joint property. It is in effect two or more Wills, and operates on the death of each testator as his Will disposing of his own separate property. Further, a joint Will is usually carried out to ensure that the surviving party will not change his/her mind regarding what should happen to the property after the first party dies.
On the contrary, joint and mutual Wills are separate Wills of two or more persons which are reciprocal in their provisions and executed in pursuance of an agreement between two or more persons to dispose of their property to each other or to third persons in a particular mode or manner. Such an agreement is enforced after the death of the first testator by means of a constructive trust, which implies that the surviving party shall not revoke his/her Will after the death of the other party.
However, the Supreme Court after scrutinising the phrasing of the First Will, overruled the High Court’s reasoning that the expression ‘absolutely’ should be read to mean that Rangammal only had life interest to enjoy the rent and income from the combined properties. The Supreme Court came to the conclusion that the First Will is a ‘joint and mutual’ Will, as pursuant to the First Will, both husband and wife agreed to devote their properties for carrying out charities and mutuality to this extent was apparent in the First Will.
The Supreme Court consequentially held that the First Will was clearly irrevocable after the death of the husband; however given that the First Will expressly granted ‘absolute’ right to the survivor to enjoy the properties, the alienation of the properties by Rangammal cannot be bad in law, unless the alienation by Rangammal is held to be in complete breach of object of trust and fraud on trust.
It is clear from this ruling that the cardinal maxim to be observed by courts in construing a Will is to endeavour to ascertain the intentions of the testator which has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised.
In consideration of the foregoing and given that when an expression, as unequivocal as, ‘absolutely’ may lead to myriad interpretations, it is vital to ensure while executing a Will that: (i) the construction of the Will is entirely unambiguous; and (ii) the Will specifically manifests the testator’s intention re the testamentary disposition of his/her property.