P.A.T. Subbaraya Pillai vs Vaheesan and Others

Ganapatia Pillai, J.—These three appeals are preferred by Sub-barayaa Pillai, the younger son of Thillainayagam, who died on 15-8-1947,

leaving a Will, Ex. A.1, dated 20-2-1945. Even in 1940, Thillainayagam had executed a partition deed, Ex. B.1, by which he purported to divide

some of the properties owned by him and his sons as joint family properties claiming the rest as his self-acquisitions. But in the Will, Thillainayagam

treated all the properties as his self acquisitions and claimed a power of disposition over the entire estate. He provided by his will, for his

daughters, his wife, his second son and his first son''s sons. Subramania, the son of Thillainayagam, by his first wife, who was thus cut out from any

share in the family properties by the Will filed O. S. No. 120 of 1947 on the file of the Subordinate Judge''s Court of Cuddalore for partition of his

share in the joint family properties. He contended that the partition deed of 1940 executed by his father, as also the Will executed by him were not

valid and operative in law, since the properties were all joint family properties. That litigation came up to this Court in Appeal, A. S. No. 721 of

1949, and it was held that the properties were joint family properties and consequently, the partition was not operative though it effected a division

in status between Thillainayagam and his two sons. As regards the Will, this Court held that it was operative over a third share of the estate which

belonged to Thillainayagam as a divided member. The decree of this Court in the prior litigation was made on 3-10-1953. Thereafter in 1956 and

1957, three suits were instituted against the appellant, one by Vaheesan, the only son of Subramaniam the son of Thillayanagam, another by

Pattammal, a daughter of Thillainayagam, and the third by Vridhambal, the senior widow of Thillainayagam, for recovery of legacies granted to

them under the Will of Thillainayagam. All these three suits were tried together and the plaintiffs in the litigation succeeded. Against the three

decrees in those suits, the present appeals are preferred by the second son of Thillainayagam.

When the three suits were beard together, common evidence was recorded and the suits were disposed of by a common judgment, as

substantially the same questions of fact and law arose in all the suits. App. No. 126 of 1958 is against the decree in O. S. No. 77 of 1956, the suit

instituted by minor Vaheesan by next friend, and, the other two appeals arise out of the decrees in the two suits instituted by the widow and

daughter respectively of Thillainayagam. The widow and daughter of Thillainayagam were given cash legacies of one thousand rupees each, while

Vaheesan was given lands to the extent of thirty five acres and forty eight cents under the Will. The properties given to minor Vaheesan by Ex.

A.1, the Will, were described in Schedule A to the Will. In the partition which was effected under the final decree in the prior suit O. S. No. 120

of 1947, properties were allotted to Thillainayagam''s share under Schedule C to that decree and properties allotted to Subbaraya were described

in Schedule B to that decree. Some of the properties were allotted to Subbarayaa by the partition decree are properties which were given to minor

Vaheesan by the will Ex. A. 1.

By the decree in the suit at the instance of minor Vaheesan, the appellant was directed to give possession of such of the A schedule properties in

the Will, Ex. A.1 which were allotted to him by the partition decree, and also the minor plaintiff was allotted properties from out of the plaint B

schedule properties to make up the value of the legacy granted under Ex. A.1 to the minor plaintiff. Thus, the appellant lost not only some of the

properties allotted to him under the partition decree which originally were granted under the Will to the minor plaintiff, but he was also asked to

make good from out of his other properties, an equivalent extent representing the deficiency which the minor plaintiff had suffered by reason of his

not being able to get all the properties bequeathed to him under the Will of his grandfather. In respect of the two legacies in favour of the ladies, the

learned Judge gave decrees for money against the appellant, with interest.

Two main questions arise for consideration in the appeal against the decree in the suit instituted by minor Vaheesan. The first is based upon the

doctrine of election and the second relates to the manner in which the legacies contained in the Will of Thillainayagam should be worked out in the

light of the finding of this Court in the prior litigation that the Will would be operative only in respect of Thillainayagam''s one third share in the

family properties.

The first contention is based upon the written statement filed on behalf of the present first respondent in App. No. 126 of 1958, in his capacity

as a party defendant in O. S. No. 120 of 1947 the suit for partition filed by his father Subramania. It will be seen that the judgment of this Court as

regards the validity of the Will by Thillainayagam was rendered in the appeal against the decision in that case. In that written statement, the guardian

ad litem of the present first respondent, had asserted that all the properties were joint family properties in which Vaheesan and his father

Subramania acquired right by birth, and consequently, both the partition of 1940 and the Will of Thillainayagam were inoperative and void. The

argument is that, having made such an assertion and repudiated the Will it would not be open to Vaheesan (first respondent) to claim the legacy

given to him under the Will of his paternal grandfather.

The doctrine of election with reference to Wills is a well-known rule of English law which finds place in Section 180 of the Indian Succession

Act. The gist of the rule is that if a person disposes of by his Will, property not belonging to him but belonging to another, that another shall elect

either to confirm such disposition or to dissent from it. In case he dissents from it, he is bound to give up any benefit which may have been

provided for him by the Will. The basis of the rule is the doctrine of inability of a party to approbate and reprobate the same document. If

Vaheesan is to claim the properties bequeathed to him under the Will of his grandfather, viz., the properties mentioned in Schedule A to the Will,

he could not take any share in the other properties dealt with by the Will, because that would amount to repudiating the Will. That was the

argument of counsel for the appellant.

This proceeds on a misconception as to what was disposed of effectively by the Will. Counsel conveniently forgets, on this part of the argument,

that though Thillainayagam purported to dispose of the entire estate on the assumption that it was his self acquisition, the finding of this Court in the

previous litigation, was that Thillainayagam was only entitled to a third share in the estate as a divided member of his joint family consisting of

himself and his two sons. Thus in applying the doctrine of election with reference to the dispositions made by Thiliainayagam in his Will, we must

look to the dispositions made by the Will in the light of the finding of this Court in the prior litigation as regards its operative character. We cannot

ignore this finding and proceed to apply the doctrine of election as though the Will was valid in its entirety.

Even assuming that this basis of construction of the Will is not correct and we should construe the Will for the purpose of applying the doctrine

of election on the basis of the dispositions as understood by the testator, viz., on the assumption that his intention was to dispose of the entire

estate, the doctrine of election can only apply on the footing that, out of the properties disposed of by Thillainayagam, some at least of a portion at

least belonged to him. In such a case, what applies to a disposition made in a Will of properties which never belonged to the testator at all would

not apply. This distinction between a case, where a disposition is made of property which never belonged to the testator and a case where out of

the properties disposed of, a part at least belonged to the testator has been recognised even in English law. Another, principle well recognised in

English law is that in applying the doctrine of election, the intention of the testator has nothing to do with the construction of the Will. The doctrine

should be applied on the true construction of the testator''s Will, which means that in this case the Will should be construed in the light of the finding

of this Court in the prior litigation, viz., that it was a Will operative only upon Thillainayagam''s (sic) : In Re Mengal''s Will Trusts, 1962 2 All ER

The passage occurs at page 495.

It will be seen that, according to the finding of this Court. Thillainayagam must be deemed to have intended to dispose of only his one-third

undivided share in the family properties to which alone he was entitled. So construed there would be no room for the argument that Thillainayagam

did intend to dispose of a larger extent than what he was entitled to and on that basis, the rule of election should be worked out. In this view then

can be no field for the application of the doctrine of election here, because it is admitted that taking all the specific legacies of Thillainayagam into

account, they would not exhaust, in value, the one-third share which belonged to him.

Dowager Rani Lalitha Kumari Devi and Others Vs. The Raja of Vizianagaram and Others, and narayanaswami Mudaliar and Others Vs.

Ratnasabapatby Mudali and Another, are two decisions relied on by counsel for the appellant in support of his contention. These cases, no doubt,

reiterate the rule of election whereby, if a person takes a benefit under a deed, he would be prevented from repudiating the burden laid on him by

that deed. In our opinion, no detailed discussion of the facts or the rationale of the two decisions is called for, because there is no room in this case

for the application of that principle.

In another view also, we must hold that the doctrine of election would not apply to this case. Repudiation of a document must necessarily mean

successful repudiation. It is true that, by the written statement filed on behalf of the present first respondent by his guardian-ad-litem in the prior

litigation, the capacity of Thillainayagam to execute a Will was denied. That was based upon the supposition that Thillainayagam was undivided

from his two sons on the date of his death. The effect of a repudiation contained in a pleading in a suit must conform to the result of the litigation. If

this plea had been accepted by the Courts on the prior occasion and a decree had been passed on the basis that Thillainayagam was incompetent

to make a will, it could be said, with some force, that the present first respondent, Vaheesan, had successfully repudiated the Will. But his assertion

that Thillainayagam was incompetent to make a Will was not upheld by this Court and consequently, the repudiation had no effect.

There is also a further question as to how far the pleading filed on behalf of a minor by a guardian-ad-litem containing a repudiation of a

document under which the minor takes a benefit would bind him after he attains majority Vaheesan has now become a major and by the filing of

this suit he has indicated that he repudiates the stand taken by his guardian ad litem in the prior litigation. Under the circumstances, it could not be

Said that, before filing the present litigation for recovery of the legacy given to him under his grandfather''s Will, he had ratified the stand taken up

by his guardian-ad-litem as regards the Will. On the other hand he accepted the decree of the High Court in the prior litigation and claimed the

legacy given by the Will. If an election be deemed to have been made on behalf of Vaheesan, in the prior litigation, the person who makes the

election must certainly be a competent authority. The law as to election to be made on behalf of minors is contained in Section 190 of the Indian

Succession Act, which reads thus:

In case of disability the election shall be postponed until the disability ceases, or until the election is made by some competent authority.

Applying the principle contained in this section we have to see whether the election made by the mother of Vaheesan on his behalf in the prior

litigation can be said to be an election made for him by competent authority. The mother of Vaheesan was not appointed as his guardian under the

Guardians and Wards Act. Nor could she be the dejure guardian of Vaheesan while his father was alive. It was his father who filed the suit in

which the pleading in question was filed by his guardian-ad-litem. It is true, a guardian-ad-litem has certain powers under law for representing the

minor in the litigation. But we have not been referred to any authority or principle which goes to the extent of saying that, in conducting that

litigation, the guardian-ad-litem has authority to make an election on behalf of the minor which would bind him.

Till recently, there was no provision in our law for elections in the case of minors being decided by Courts for the benefit of minors. In English

law, such a practice has been in vogue for many years. An election made by a guardian-ad-litem on behalf of a minor can bind the minor only if the

guardian had legal authority to make the election. The guardian-ad-litem does not in our opinion stand on a par with the legal guardian in this

regard. We, therefore hold that the written statement filed on behalf of minor Vaheesan in the prior litigation would not be a lawful election made

on his behalf by any competent authority. We confirm the finding of the learned Judge in the Court below that the doctrine of election would not

apply to this case, and, even if it applies, no binding election had been made to the detriment of Vaheesan by his mother. Vaheesan, is therefore,

not bound to give up his legacy as a result of his claiming a third share in the joint family estate as pertaining to the branch of his father Subramania.

The next question relates to the working out of the provisions of the Will of Thillainayagam in accordance with the finding of this Court in the

prior litigation. A number of principles come into conflict in this field. If the legacies given by Thillainayagam are specific legacies one result would

follow. Similarly, if the legacy in favour of Subbaraya, the appellant, is not a residuary legacy but a general legacy or a specific legacy, a different

conclusion would follow.

The first question we have to consider is whether the specific legacy in favour of Vaheesan and the two ladies who are respondents in the other

two appeals abated by reason of the finding as regards the validity of the Will by this Court. It was not disputed by counsel for the appellant that

the legacies in favour of Vaheesan and the two ladies were specific legacies. On that basis, these legacies could only abate or be adeemed, if there

were not sufficient assets of the testator to meet these legacies. That is not the case here. Therefore, no question of abatement of the legacies in

favour of Vaheesan and the two ladies would arise.

Next it was contended that the legacy in favour of Subbaraya, the appellant, was also a specific legacy and was not a residuary legacy. Section

102 of the Indian Succession Act contains the definition of a residuary legatee in these terms:

A residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated shall take the

surplus or residue of his property.

The Will in this case gave specific legacies to particular relations and the rest of the properties of the testator including the ricemill, cash, and all

moveables were given to Subbaraya, the appellant. We are unable to find how Subbaraya would not become a residuary legatee under the Will

merely because some specific properties have been mentioned as comprised in the legacy given to him. The mention of specific properties as part

of the residue of an estate of a testator does not make that legacy a specific legacy. This is deducible from the following passage at page 1017 of

the 8th Edn. of Jarman on Wills, Volume 2 :

A case which sometimes presents difficulty is where the testator enumerates some of the things in the residuary bequest. Apart from other

indications of the testator''s intention, the following rules appear correct: (1) A gift of residue, including certain property (as the residue of any

estate, including a certain fund), does not make the gift of that property specific. (2) The mere fact that the testator enumerates some specific things

in the gift of residue (as ''all my furniture, cattle, sheep and all my other personal estate'') does not make the gift of those things specific.

Applying these rules, there is no doubt, in this case, that the legacy in favour of Subbaraya was a residuary legacy and, therefore, must suffer

diminution consequent upon satisfaction of the specific legacies in favour of Vaheesan.

Learned counsel for the appellant relied upon the decision in (Julia Mary) Margaret Fernandez Vs. Severina Sobina Coelho, , as indicating the

correct rule to be followed in this case. That was a case where the bequest to the defendant as well as to the plaintiff were held to be specific

legacies. Under the Will, the testatrix in that case bequeathed a garden and bungalow to the defendant along with other properties and directed that

half the net income from the garden and bungalow should be paid to the plaintiff for life and, after her death, to her children. The testatrix further

provided that, if the bungalow should be sold, one half of the sale amount should be paid to the plaintiff and the children that may be born to her. It

was clear that the testatrix was under the belief that the garden and bungalow wholly belonged to her. But, in a litigation which was pending at the

time when the Will was executed, it was subsequently held, after the death of the testatrix, that she was entitled only to half of that property, the

other half having validly passed to the plaintiff''s father under a settlement executed by the testatrix.

The question then arose whether the half that belonged to the testatrix should satisfy the bequest of half of the income in favour of the plaintiff,

leaving nothing for the defendant. In negativing this contention, the learned Judges who constituted the Bench held that both the legacies were

specific legacies and consequently, both must rateably abate, in the altered circumstances of the testatrix being found entitled to only a half share in

the bungalow. This finding that both the legacies were specific legacies justifies, with all respect, the view taken by the Bench in that case. Here, we

are unable to find that the legacy in favour of the appellant, Subbaraya, was a specific legacy while it is undoubted that the legacy in favour of

Vaheesan is a specific legacy. The rule in the decision, cited above, will not, therefore apply to this ease.

The last argument was that the specific legacy in favour of Vaheesan and, particularly, those items of properties included in the specific legacy

which did not fall to the share of Thillainayagam in the final decree for partition made in the prior litigation should be adeemed by reason of the

testator not being entitled to those properties.

Section 152 of the Indian Succession Act provides for ademption of legacies. It reads thus:

If anything which has been specifically bequeathed does not belong to the testator at the time of his death, or has been converted into property of

a different kind, the legacy is adeemed; that is, it cannot take effect, by reason of the subject-matter having been withdrawn from the operation of

the Will.

That principle can have no application here since it could not be said that the testator did not have any interest in the properties described in

Schedule A to the Will. Of course, he was only a divided member of a coparcenary entitled to a third share in those properties. But the point that

he had some interest in the properties which constituted that specific legacy in favour of Vaheesan would make the rule contained in Section 152

inapplicable to this case. App. No. 126 of 1958, therefore, fails and is dismissed with costs. In regard to the other two appeals against the decrees

in favour of the ladies, the only contention urged by counsel for the appellant was that interest should have been awarded on the sums due to them,

only from the date of the judgment of this Court in the prior litigation. As already observed, interest in one case, has been awarded by the learned

Judge from a date one year after the expiry of the date of the death of the testator. This is based upon Section 351 of the Indian Succession Act.

The award of interest by the learned Judge is, therefore, correct though in one case, interest was claimed only from the date of the judgment of the

High Court. The decree of the lower Court in both these cases are correct. App. Nos. 324 and 325 of 1958 are also dismissed with costs.