Andalammal vs K.N. Gopal Naidu and Another

M. Karpagavinayagam, J.—Andalammal the appellant herein, is the first defendant in O.S. No. 225/81 on the file of the District Munsiff. Ranipet, filed by the plaintiff, the first respondent herein, seeking for partition and separate possession.

The trial Court dismissed the suit. However, in the appeal filed by the plaintiff, the first respondent herein, in A.S. No. 85/86 on the file of the Additional Subordinate Judge, North Arcot, the relief sought for in the suit was granted and the suit was decreed. Hence, this Second Appeal by the first defendant, the appellant herein.

The case of the plaintiff is as follows:-

(a) Gopal Naidu the plaintiff, is the husband. Andalamal, the first defendant, is his wife. The marriage was taken place in the year 1951. After the marriage, both lived together and had three daughters and a son. On 3.5.1992, the father of the first defendant. Parvathi Munuswamy Naidu executed a Will, bequeathing suit properties to be enjoyed by die plaintiff and the first defendant in equal motives, after the life-time of Pammal, the mother of the first defendant. It is also in continued in the with that the plaintiff and the first defendant shall given one acre of Punja land and one acre of Punja land, out of the suit properties, to the second defendant, Ksihuribai Animal, the granddaughter of the Testator.

(b) In 1953, the Testator died. Thereafter, the Will come into effect and the same was acted upon. The plaintiff assumed the management of the proportion and was assisting his mother-in-law, Papainmal till her life-time. After her life-lime, two acres of lands were given to second defendant and her marriage was celebrated by the plaintiff. In celebrating the marriage and in improving the suit properties, the plaintiff incurred some debts. In order to discharge the same, the plaintiff wanted to mortgage or sell any of the items of the suit properties. Since the first defendant was not willing to encumber the property, the plaintiff filed a suit for partition and separate possession.

The defendants 1 and 2 contested the suit, inter alia contending that as per the Will, executed by the father of the first defendant, the first defendant alone became the absolute owner, subject to the claim-of the second defendant''s tow acres of lands and that the plaintiff had become addicted to drinks and led a wayward life by spending the income of the defendants, obtained from tends, for illegal and immoral purposes. The plaintiff never made any improvement in the land and that the plaintiff had no right to incur any such debts, so as to bind the defendant, and as such, the plaintiff would not be entitled to get any relief.

On the basis of the above pleadings, the trial Court framed the following issues:-

Whether the Will dated 3.4.1952 intended to benefit the first defendant only, as stated in the written statement?

Whether the plaintiff was managing the sure properties after the death of the father of the first defendant?

Whether the plaintiff has made improvements over the suit properties by spending Rs. 15,000/- as alleged in the plaint?

Whether the debts described in D'' Schedule of the plaint are true, valid and binding on the defendants?

Whether the defendants reliable to pay off the debts described in "D" Schedule of the plaint?

Whether the defendants have perfected their title to the suit properties by adverse possession?

Whether the plaintiff is entitled to half a share in C Schedule properties as stated in the plaint?

Whether cause of action pleaded is true?

To what relief the plaintiff is entitled?

During the course of trial, the plaintiff was examined as PW. I and Exs. A1 to A66 were marked on his side. On the side of the defendants, the first defendant, the wife of the plaintiff, was examined as DW. I and Exs.BI toB7 were marked.

The trial Court, on considering the materials placed before it, dismissed the suit seeking for the relief of partition and separate possession. The unsuccessful plaintiff filed as appeal before the Additional Subordinate Judge, North Arcot.

After hearing the counsel for the parties and on considering the material placed before it, the lower appellate Court decided the point for determination in favour of the plaintiff, the first respondent herein, by decreeing the suit, holding the suit properties as per the Will, executed by the father-in-law of the plaintiff.

Challenging this reversing judgment and decree, the first defendant has filed this appeal, mainly contending that the lower appellate Court has given a wrong finding that the intention of the Testator was to give equal share of the properties to the plaintiff and the first defendant, without taking into consideration the entire portions of the Will and also taking into consideration Ex. A67. which was allowed to be filed as an additional document during the pendency of the appeal, without proper reasons.

At the time of admission, the main substantial question of law that was formulated by this Court is as follows:-

What her the finding of the lower appellate Court that plaintiff and first defendant are entitled to equal shares of property under Ex. B4 is sustainable in law?

In elaboration of the above substantial question of law, Mr. V. Selvaraj, the Learned Counsel appearing for the appellant would submit that the lower appellate Court, while reversing the well-considered judgment and decree of the trial Court, passed in favour of the first defendant/appellant, gave a wrong and perverse finding that the intention of the Testator, though the Will, Ex. B4, is to give the equal share in the suit properties to the husband and wife, namely, the plaintiff and the first defendant, without gathering the real intention of the Testator, by considering the recitals of the Will in entirety.

The above submission is resisted by Mr. M.N. Muthukumaran, counsel for the first respondent/plaintiff that the lower appellate Court would give proper and valid reasonings for disturbing the judgment and decree of the trial Court, which has correctly interpreted the wordings in the Will and decreed the suit, in favour of the plaintiff, first respondent herein. He would also cite authorities to show how the intention of the Testator has to be gathered from the wordings contained in the Will.

This matter came up for hearing on 6.9.1999 and Mr. Selyaraj, counsel for the appellant and Mr. M.N. Muthukumaran, counsel appearing for the first respondent were heard. The matter was posted again on 7.9.1999 for further hearing. Even on that dale, they were heard. The case was posted for judgment on 8.9.1999. On 8.9.1999. when the matter was called. Mr. M.N. Padmanabhan, learned Senior Counsel would submit that he would represent the counsel Mr. M.N. Mulmikumarari. appearing for the Ist respondent and seek permission from this Court to argue further in this matter on behalf of first respondent. Mr. Mutluikumaran, Learned Counsel, who earlier argued on behalf of the plaintiff/first respondent was also present. When the mailer was partly heard and the case was posted for judgment, it may not be proper, that too for a Senior Counsel to appear in the mailer and seek permission for arguing further. Iain not able to understand why the Senior Counsel suddenly enter into the picture 10 argue further, when the matter was already heard. As a matter of fact. Mr. Muthukumaran. the counsel appearing for the plaintiff/first respondent, would effectively and lucidly put forth the case. When this Court put some questions to him. he wanted to give answers for the question on next day. That was how the mailer was posted on 8.9.1999 for hearing Mr. Muihukuniar in further and to pronounce the judgment. At this stage, Mr. M.N. Padmanabhan. the learned Senior Counsel, thought it fit to argue the matter on behalf of the first respondent, for whom Mr. Muthukumaran had already argued.

As stated earlier, Mr. Muthukumaran was asked to give some clarification on the dale of pronouncement of the judgment. At this stage, knowing fully well (sic) matter was already argued by the counsel, Mr. Muthukumaran, the learned Senior Counsel wanted to argue the matter further and sought permission for doing the same. Though, initially. I did not relish the conduct of the Senior Counsel in asking for a JKI mission to argue the case in the part-heard matter, as it would be against the ethics of profession, ultimately, I decided to give such permission to the learned Senior Counsel to argue the matter, as I felt I should not stand on technicalities, as some new good points may be pointed by the learned Senior Counsel, and they may be useful to decide the issue in the proper perspective. Accordingly, I permitted the learned Senior Counsel, who would also reiterate the submission made by the earlier counsel on behalf of the first respondent, and would point out various portions of the Will and contend that the Testator wanted to give the Will properties to both the husband and wife in equal right and equal right and equal shares. At the end, he would cite authorities, in which, it is held that the finding of fact arrived at by the lower appellate Court, should not be disturbed by this Court u/s 100, C.P.C.

I have carefully considered the submission made by Mr. Selvaraj. Learned Counsel appearing for the appellant and also the submissions made by Mr. Muthukumaran and also the submissions made by learned Senior Counsel. Mr. M.N. Padmanabhan, appearing for the first respondent,

At the outset. I shall mention that in the light of the substantial question of law formulated, as indicated above, this Court is called upon to decide whether the finding of the lower appellate Court, by interesting the Will, Ex. B4, that the plaintiff and the first defendant would be entitled to equal shares to property is sustainable in law OF not?

According to PW. 1, the plaintiff, on the strength of Exs. A1 to A66. he would be entitled to half share in the suit properties as per the Will executed by his father-in-law and on a perusal of the Will dated 3.4.1952, the intention of the Testator is clear and it shows that the suit properties must be enjoyed by both the plaintiff and his wife, first defendant, absolutely, in equal moieties, and as such, he would be entitled to half share as per the Will.

On the other hand, the case of the first defendant is, the entire reading of the Will would clearly show that the Will was executed by her father only in the interest and for the welfare of the first defendant and that the plaintiff had no right of alienation, as she alone would be the absolute owner of all the suit properties.

The trial Court, while referring about the intention of the Testator, would specifically hold that on a careful scrutiny of the Will, the absolute right was given only to the first defendant and as such, the plaintiff. Gopal Naidu, had no right to do anything with the properties, without the consent of the first defendant, On the basis of this finding, the relief of the plaintiff was rejected. However, the lower appellate Court, while setting aside the said finding, would hold that the Will had been executed by the Testator, bequeathing the properties to both the husband and wife, namely, the plaintiff and the first defendant to enjoy the properties with equal rights and consequently, they are having equal shares.

In this context, it is to be noted that the lower Court did not give any much importance to the various exhibits marked in this case, showing the expenditure incurred for the marriage and the first receipts in the name of the plaintiff, as they would not be relevant to answer the point for determination that arises in this case. Similarly, the lower appellate Court also did not give due weight to those documents, but it would lay importance only to the Will. Ex. A3, marked on the side of the plaintiff and Ex. B4. marked on the side of the defendants.

It is also referred to in both the judgments that earlier, some properties have been sold by Andalammal, the first defendant herein, to third party, attested by the plaintiff.

On the strength of these documents, it was argued by the counsel for the defendants that the selling right was only vested with the first defendant, as she alone was the absolute owner of the suit properties. Similarly, on the basis of Ex. A67. marked during the pendency of the appeal, which would show that some of the properties were mortgaged to third parties, by both the plaintiff and the first defendant, it is contended by the counsel for plaintiff that the said document was executed by both of them, since they were having equal rights and that therefore, the husband has got equal share.

On a careful consideration of the submissions from either side and scrutiny of the materials available on record, I am of the opinion that the arguments made on either side would not be relevant to decide the question that may arise in the present case. As found by the trial Court as well as the lower appellate Court and as agreed by the counsel for both panics, the issue that arise for consideration shall be decided only by looking into the recital of the Will and by gathering the intention of the Testator, by reading the Will in entirety.

Let us see some of the decisions relating to the above aspect, cited by the counsel for the parties.

The Allahabad High Court, in Chiranji Lal Vs. Sri Thakur Bare Madan Mohan Lalji and Others, would hold as follows:-

In order to gather the intentions of the donor, we have to (sic) to the terms of the entire Will and then come to a conclusion. The intentions of the donor cannot be gathered by taking into consideration only an isolated passage in the Will and by ignoring the other passages or expressions which are to be found in it.

In (1973) I Mad LJ 34 (Rnmaseenivasa Iyengar v. Padmasani Annual), this Court had held thus:-

The construction of a Will is a dietetic and onerous task. In constructing a Will, a Court had to ascertain the real intention of the testator as revealed by t lie plain language of the entire instrument.

On a fair construction of the terms of properties, in the instant case, and taking the document as a whole, it is clear that the testator intended by the earlier clause that his tow daughters including the respondent''s mother should lake only a life estate if they had no issue and that on the death of the lady without issues the property should be taken absolutely by the surviving daughter with issues. The obvious dominant intention was to preserve die estate in his family and that it should descent ultimately to his grand-children.

In (1979) 2 Mad U 26 (Laksmi Animal v. Special Tahsildar), this Court has made the following observation:-

It is axiomatic that in construing the will, it must be read as a whole and every clause must be given effect to.

In (1977) Mad LJ 207 (Hamsaveni Animal v. Rajagopal Chettiar), this Court has held thus;-

In all these cases, as pointed out by the Supreme Court in Ramachandra Shenoy and Another Vs. Mrs. Hilda Brite and Others, it is one of the cardinal principles of construction of Wills that to the extent that legally possible effect should be given to even disposition contained in the Will unless the law prevents effect being given to it; and if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction Will proceed to the further extent to avoid repugnancy, so the effect would be given as far as possible to every testamentary intention contained in the will.

From a reading of the above judgments, it is clear that the ratio decided by this Court as well as the Apex Court is that the Court should ascertain the real intention of the testator appearing from the plain language of the entire instrument. One clause of the Will is as important as the other and the dominant intention of the testator can only be gathered from the cumulative effect of all the clauses. The Court should not be astute in discovering repugnant provisions in a Will merely because of a slight inconsistency between portions in the testamentary instruction. As far as possible, a harmonious construction of all the provisions in the Will should be arrived at, as otherwise, the brushing aside of a particular clause on the ground of its repugnancy to another may, result in creating a Will which was never contemplated by the testator. Though various authorities or precedents are available, with reference, to the gathering of the intention of the testator from the Will, they may not be of much help, in the matter of the construction of the Will, as each will has to be construed in its own terms and in the setting in which the clauses occur. Each document has to be construed with reference to the language used in it and not with reference to the language employed in the documents. The cardinal maxim to be observed by Courts in constructing a Will is to endeavour and to ascertain the intention of the testator. This intention 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. Thus, the intention of the testator and the effect of the dispositions contained in the Will must be decided by construing the Will as a whole and giving the relevant clause in the Will their plain grammatical meaning considered together. In construing the language of the Will, the Courts are entitled and bound to bear in mind and shall consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense and many other things which are often summed up in the somewhat picturesque figure. Thus, the Court is entitled to put itself into the testator''s arm-chair. But, all this is solely as an aid to arrive at a right construction of the Will and to ascertain the meaning of the language when used by particular testator in that document. So as soon as the construction is settled, the duty of the Court is to carry out the intention as expressed. In construing a Will it is generally not profitable or useful to refer to the construction of other Wills because the construction of each Will must necessarily depend upon the terms used by the will considered as whole. In earlier words, the document must be construed as a whole, giving attention to every provision therein. The intention of the person making the Will must be gathered from the language employed by (lie testator by giving the plain and natural meaning to the words used.

In the light of the above principles, let us now look to the recitals of the Will.

As indicated above, the intention of the testator cannot be gathered by taking into consideration only isolated passages in the Will and by excluding the other passages or expressions which are to be found in it. In my opinion, when the entire Will is read as a whole, it becomes quite clear that the Testator made the Will, bequeathing the properties do both husband and wife, to enjoy the properties, and did not give any right of alienation of the suit properties to the husband, without the consent of the first defendant, the wife. The recitals in the Will are as follows:-

(Vernacular matter omitted)

A perusal of the Will would make it clear that this Will was executed only with the predominant interest on Andalammal. He would assertively state that he had no other interest except the interest on Andalammal. (Vermicular matter omitted).

A further reading of the Will would make it clear that the husband and wife, after the death of Pappammal, shall give tow acres to Kasturibai Animal, the second defendant and both of them had got absolute right in the other properties. It is also further mentioned that the properties have to be maintained by both of them, by adjusting with each other, with cordially. (Vernacular matter omitted).

The last portion of the Will would clearly indicate that the husband cannot have any right to transact, in respect of the properties, without the consent of Andalammal. (Vernacular matter omitted).

The entire reading of the Will clearly shows the intention of the Testator that though the properties have to be enjoyed by both of them with absolute rights, the husband''s action in respect of the suit properties, without the consent of the first defendant, on whom alone the Testator was having the prime interest, would not be valid.

In the light of these recitals, it would be appropriate to deal with the facts of this case. Admittedly, both the husband and the wife are not living together. According to the first defendant, the plaintiff is leading a wayward life and spending money for immoral purposes. Ex. B5, copy of judgment in C.C. No. 1621/78 dated 9.6.78, on the file of Judicial II Class Magistrate''s Court, Wallajah marked on the side of the defendants, would reveal that the plaintiff and first defendant are not cordial to each other.

Ex. Al is the notice issued by the plaintiff, though lawyer, to the first defendant and the same is dated 22.4.78 Ex. A-2 is another notice issued, by the plaintiff''s counsel to the defendants, dated 12.8.78. A reply was sent to the counsel for the defendants. That was marked as Ex. B7, dated 14.3.1979. The suit was filed on 23.4.1979. This also would show that both the husband and wife are not living together with cordiality from the beginning of the year 1978. In such circumstances, the action taken by the husband, by resorting to filing a civil suit, seeking for half share of the suit properties, making the wife as first defendant, would not be considered to be valid in the light of the intention that could be gathered from the wordings of the Will, as indicated above.

No doubt, it is true that both the husband and wife were given right to enjoy the properties. But, there is a specific condition put in (sic) Will that the husband should not act in any manner, in respect of the suit properties, against the interest of the wife or without the consent of wife, whose welfare alone was more important for Testator.

Mr. M.N. Padmanublinn, the learned Senior counsel, appearing for his first respondent, would cite (1964) 1 Mad LJ 258 (Alangara Udayar v. Sanlhiagu Udayar). In order to substantiate his plea that the intention of the Testator was to give the properties to benefit both the husband and wire. In this decision, a similar question had been raised. It is held, on the basis of the facts of that case, that the properties were bequeathed to both on husband and wife and husband also has the share on that. But. this finding was given in the light of the peculiar facts of that case. As per the Will. Ex. Al, the Testator bequeathed the entire properties to his wife, giving a life estate and (sic) her death, to the plaintiff and his wife. In that case also, the plaintiff is the husband. But. the wordings in the Will would show that, after the death of the Testator and his wife, the husband and wife should take all the properties, with absolute rights and enjoyed by them and their heirs from generation to generation. In the said case, the Will came into force after the death of the Testator, on being probated. Thereafter, the wife of the plaintiff died. The plaintiff married again. Some years after, the widow of the Testator also died. In the mean time, the three daughters and the widow of the Testator sold the property to the defendant. This was questioned by the plaintiff, by filing a suit. In that context, on the basis of the wordings and interpretation of the Will, as stated earlier, this Court, while confirming the concurrent judgment, held that the intention of the Testator was to benefit both the plaintiff and his wife and after their life, it must be enjoyed by their heirs from generation to generation. That is not the case here.

As noted above, the Testator did put a specific condition that the husband and wife shall live with cordial terms and any move or any transaction made by the Husband, in respect of the properties, which would be against the interest or without the consent of the wife, shall not be considered to be valid one.

Under those circumstances, the lower appellate Court, having completely overlooked the intention of the Testator to be gathered from the entire Will, has given a finding, which suffers from perversity, that the husband would be entitled to half share in the suit properties.

At this stage, the learned Senior Counsel for first respondent would cite (1999)2 MLW 588 (Arumugiiam v. Sundarambal) and (1999 02 Mad LW 614 (Kondiba Dagadu Kadain v. Savitribai Sopan Gujjar) to point out that (lie finding of the fact, rendered by the First Appellate Court cannot be disturbed by this Court in the Second Appeal.

The principles found in the above judgment are well-considered. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. But, it shall be pointed out that it is also settled law that when this Court finds that there was a perversity of approach by the lower appellate Court in not gathering the real intention of the Testator in the Will, it would certainly be within the right to interfere with the finding of the lower appellate Court.

In the background of the facts, stated earlier, the judgment rendered by the Supreme Court, which are given be", w, would reveal that there is no justification to construe Section 100 in a very narrow and restricted sense and the recent trend has been in favour of keeping an open eye as against the glaring misreading, misquoting or failure to consider crucial evidence. The relevant portions of the judgment in Rajiah Nadar Vs. Manonmani Ammal, are as follows:-

In Madan Lal Vs. Mst. Gopi and Another, it was held by the Supreme Court that though whether a person was in fit state of mind to execute the adoption was a question of fact, yet where both the Courts below had ignored the weight of preponderating circumstances and allowed their judgments to be influenced by inconsequential matters, the High Court was justified in reappreciating the evidence and in coming to its own independent conclusions.

In Surain Singh (Dead) by Lrs. and Others Vs. Mehenga (Dead) by Lrs., the Supreme Court held that when both the Courts below had recorded diverse findings and where the material evidence and the relevant circumstances had not been adverted to by the appellate Court, the High Court was justified in interfering with the finding of fact.

In Kochukakkada Aboobacker v. Attali Kasjiri; (1996) & SCC 389. the Supreme Court held that where the trial Court and the first appellate Court did not consider the relevant documents in a proper perspective, the High Court was entitled to reconsider the evidence. In D.S. Thimmappa Vs. Siddaramakka, it was held that where the first appellate Court failed to draw the proper inference from proved facts and to apply law in proper perspective, the High Court in Second Appeal was justified in drawing proper inference from such proved facts and that such interference by the High court was proper.

In the judgment in Sitaramacharya (dead) through L.Rs. Vs. Gururajacharya (dead) through L.Rs., the Supreme Court held that in a case where the trial Court decided on certain admission made by the respondent in certain earlier proceedings, but the appellate Court had taken the view that the admissions were made under compelling circumstances, it was held that the High Court ought to have interfered with the findings of the appellate Court that the High Court erred in dismissing the Second Appeal holding that the findings of the appellate Court were finding of fact.

In Major Singh Vs. Rattan Singh (Dead) by LRs. and others, the Supreme Court dealing with a case as to whether a Will was validly executed and the trial Court and the first appellate Court had concurrently found that the Will was not validly executed and the High Court on evidence held that the rejection of the evidence of the attestor was not correct, the Supreme Court held that the High Court was justified on interfering with the concurrent findings.

In die judgment reported in Mehumnisa v. Wiliam Kumari, AIR 1998 SC 427. the Supreme Court dealt with an issue of bona fide requirement of the landlady starting a clothing business and held that the lower appellate Court while reversing the judgment of the trial Court failed to give due importance to certain facts, it was held that the interference by the High Court was justified.

In the judgment of this Court reported in Muthu Goundar Vs. Poosari @ Palaniappan and 4 others, . the Honorable Mr. Justice P. Sathasivaih held but in he finding of the lower appellate Court was based on surmises, the same can be interfered with,

In the judgment reported in Rahamathulla Shuthari (a) Peer Hazarath v. The Muslim Jamaiut of Eachampatti etc. (2998) I Mad LW 413, the Honorable Mr. Justice S.S. Subramani help that failure of the lower Courts to consider the materials of evidence on record, would entitle the High Court u/s 103 to consider the evidence and to come to a different conclusion.

In the judgment reported in Rajammal v. Ramasami, (1998) 1 Mad 451. the Honorable Mr. Justice K. Sampath held that in a case of the genuineness of a Will where the appellate Court had ignored the weight of circumstances and allowed its judgment to be incidence by inconsequential matters, it was held that the High Court was entitled to interfere with u/s 100, C.P.C.

In the judgment reported in (1999) I CTC 245 (cited supra), the Honorable Mr. Justice K.P, Sivasubramaniam held that in the interest of justice, improper appreciation 857042 of evidence and glaring misreading of evidence and misquoting or failure to consider crucial evidence would warrant interference with not only findings rendered by first appellate Court but also with concurrent findings of fact.

Therefore, on a consideration of the settled proposition of law as regards the scope of interference of the findings of fact recorded by appellate Court and having regard to the error committed by the lower appellate Court in failing to gather the real intention of the Testator from the recitals of Ex. B4, the Will, the finding of the lower appellate Court cannot be sustained. Consequently, the judgment and decreed rendered by the lower appellate Court are to be set aside and the judgment and decree rendered by the trial Court are to be restored, and accordingly the same are restored.

In the result, the appeal is allowed. No costs. Consequently, CMP. No. 773 of 1988 is closed.