Aiyasami Udayan and Others vs Appasami Udayan

Sadasiva Aiyar, J.—I agree with my learned brother in his conclusions and I shall state my reasons shortly. I feel myself unable to accept the

contention of the appellants'' learned vakil that the document Ex. IV was not a will but a deed of settlement. The document calls itself a will in more

than one place, it is not written on a stamp paper, the beneficiaries were to take only after the death of the executants and the latter do not use any

expression in the deed by which they restricted their own rights in the properties till their deaths to mere life interests.

As regards the next, contention of the appellants'' vakil, it seems to be, (so far as I was able to understand it) that even if Ex. IV was not a deed

of settlement, there was a proposal made in it by the executant to the 1st defendant and his wife (the 2nd daughter''s husband and the 2nd daughter

of the executant) to leave the properties by will if the 2nd daughter of the executants and her husband the 1st defendant protected the executants till

their death, that that proposal was accepted by the 1st defendant and his wife, that accordingly a sort of binding contract was entered into by the

executants to give a vested reversionary interest in the plaint properties by will to the 1st defendant and his wife and that the will therefore became

irrevocable so far as the grant of such an interest was provided for in that will. Having carefully considered the terms of the will, I am unable to

spell out therefrom any such proposal made by the testator or the testatrix to the beneficiaries. It only recites the motive for the making of the

bequest, such motive being based on the facts assisting them in the cultivation of the lands and was expected that the son-in-law had been living

with his parents-in-law and to protect them till their deaths, which events were expected to take place soon. That a will is to be understood as

speaking only from the death of the testator and that it has only the same effect as if it was executed at the time of the testator''s death cannot be

controverted (See Bodi v. Venkatasami Naidu (1913) M.W.N. 779 and Shib Sabitri Prasad v. The Collector of Meerut ILR 29 A. 82). As|the

1st defendant''s father-in-law had adopted a boy before his death, and as that boy survived the 1st defendant''s father-in-law, that is, the boy''s

adoptive father, the will became infructuous as regards the father-in-law''s ancestral properties he having become incapable of bequeathing the

properties so as to defeat the adopted son''s right of survivorship. That the mere raising of expectations in the mind of a person that a bounty in the

shape of a legacy would be left by will does not amount to a contract, and that even if some acts are performed by that person owing to the raising

of such expectations, such acts will be referable to the expectation and not to a contract have been decided by the House of Lords in Maddison v.

Alderson (1888) L.R. 8 A.C. 467 which was followed by Abdur Rahim J. in the case reported in Appa Row v. Venkayamma Row (1908) 19

M.L.J. 106 the judgment of Abdur Rahim J. having been confirmed in Letters Patent Appeal No. 105 of 1908. I would therefore dismiss the

second appeal with costs.

As regards the memorandum of objections I see no reason not to accept the finding of fact by the lower appellate Court that the properties to

which the memorandum relates belonged to the 1st defendant''s mother-in-law absolutely in her own right. In that view her will was valid and the

plaintiff cannot claim these properties as her adopted son''s heir. The memorandum of objections will also be dismissed with costs.

Napier, J.

The sole point argued in this appeal is whether the appellants claiming under their mother, a legatee of one Ramasami Udayan are entitled to

claim joint family property left to her under a will executed prior to the adoption by the testator of the person under whom the plaintiff (respondent)

claims. It was admitted that apart from the will the property would have passed to the adopted son by survivorship on the death of the testator.

It was first argued that the document was not a will; but on its terms we are clear that it is a will. The point that was strenuously urged was,

however, that as its terms indicate the expectation of the testator that the legatee would support him, (the testator) in his old age, and as it was

admitted that the legatee had lived with the testator and taken charge of him and his property, the legatee had acquired a right to have the terms of

the will carried out, in other words that the will was irrevocable. It was admitted that there was no authority for this proposition but it was sought to

be supported on the analogy of contracts made between two persons, the consideration on one side being a promise to provide for the other party

by will. During the course of the argument it was put to the learned vakil who appeared for the appellants whether he claimed on a contract outside

the will and he admitted that he could not do so. In my opinion on that admission the case became unarguable, for the simple reason that a will

speaks from the date of the death and is of its nature revocable by the testator at any moment. The cases are collected in Theobald''s Law of Wills

(6th edition) Chapter X and no case can be found where the language relied on is to be found in the will, The case relied upon by the appellants,

Synge v. Synge (1894) L.R. 1 Q.B. 466 is a case of contract and it only establishes the proposition that if there is a contract to make a

testamentary, gift of a particular property the contract can be specifically enforced against persons claiming under the testator as volunteers. This of

course does not help the appellants; the case of Maddison v. Alderson (1883) L.R. 8 A.C. 467 is strongly against the appellant. There, a woman

who had lived as housekeeper with the testator for many years alleged an oral agreement with him that she would serve him without wages and

give up other prospects of establishment in life, he undertaking to make a will leaving her a life estate in land. He actually had such a will drawn

from him but died without signing it. Admittedly the alleged contract could not be proved for want of writing under the Statute of Frauds, but it was

urged that there was part performance. The House of Lords held that there was no performance and that the fact that the master designed and

strove to give her the interest which it was alleged, he had promised could not be taken to establish the existence of such an agreement several

years before. Now it is obvious that if any equity could arise apart from a contract it would have been urged by the very eminent counsel who

appeared in that case. The fact that the will was made in this case cannot, as already pointed out, make any difference. To hold otherwise would

be to open the door to contentions which could be easily raised in a very large number of wills made by Hindus who are particularly prone to recite

existing facts and future arrangements as motives for making the testamentary disposition. In this view it is my opinion unnecessary to consider the

further question whether any such arrangement would have any effect as against the doctrine of survivorship even in respect of the testator''s

undivided share during his life time.

I concur that the memo of objections should be dismissed with costs.