TaxTMI 
TaxTMI 
1959 (3) TMI 64
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....rely prayed for the grant of a probate, but ultimately by an amendment an alternative prayer for the grant of letters of administration to the petitioners was made. Notices were issued and a caveat was filed by one Pandit Bhawani Prasad, who is the appellant here. Pandit Bhawani Prasad is the brother of Pandit Kuar Lal. Surendra Bala is the niece of Smt. Ram Pyari, and Suresh Chandra is Surendra Bala's son. 3. Shortly put the position taken up by Pandit Bhawani Prasad the appellant, was that the aforesaid will dated the 15th of November, 1941, stood revoked by a deed of gift dated the 14th of November, 1942 executed by the surviving Smt. Ram Pyari, after the death of her husband, in favour of Bhawani Prasad. The caveator inter alia pleaded that Smt. Ram Pyari was the owner of the house devised by the will, which was her stridhan property, and she was also the owner along with Kuar Lal of the deposits on which, the will also operates. 4. On these pleadings the parties went to issue. 5. The court below found that the will in question has been established as being the duly executed last will and testament of the executants Kuar Lal and Ram Pyari, and was brought into existence-....
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....of qasba Firozabad, district Agra, do declare as follows : I, the executant No. 2 am the owner in possession without the participation and interference on the part of anybody, of a pucca built house, bounded and specified as below, by virtue of purchase of a sale deed executed and registered on the 16th of August, 1899 at No. 181, on page 28, Volume No. 35 of register No. 1. Besides this some money belonging to us the executants, is deposited in the Co-operative Bank Jarauli and in the Jwala Bank. We the executants have no male or female issue and as we have become old, there is no hope of having any issue in future. Life is uncertain and this world is transitory and if is not known when the soul will depart from the body. Musammat Surendra Bala Devi is the daughter of the own brother of me, executant No. 2, whom we executants Nos. 1 and 2 have brought up and maintained from her childhood as our own daughter. Suresh Chandra is the natural son of Musammat Surendra Bala aforesaid. The aforesaid persons render services and try to please us in our old age with much regard and affection and we have every hope that they would continue to render services and will try to please us the exe....
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....er in our estate without the participation of and interference on the part of anybody and nobody shall have any right of interference or obstruction. If, perchance anybody brings a claim as against the said persons, his claim shall be considered null and void in the face of this document. (4) Nobody except us, the executants, shall have any right to amend or cancel this will." 10. We may now mention that the petitioners, the respondents, claimed under the will and that therefore they are necessarily bound by the recitals-in the will. It will be observed that the will states that the wife Ram Pyari is the owner in possession without the participation and interference on the part of anybody of the pakka built house which has been devised. In regard to the money held in deposit in the two named Banks, the statement is that the money belongs to "us the executants". Thereafter the will sets out that the executants have no male or female issue; and then the will says that Surendra Bala Devi the niece of Ram Pyari and Surendra Bala Devi's son Suresh Chandra were rendering services to both the executants and trying to please them, and that both the executants were very....
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....e other. There is undoubtedly a devise by each to the other, but there is no evidence that the devise was based on reciprocity, in other words, that the mutuality of the devise was as a result of a reciprocal arrangement. There is nothing to indicate that there was any sort of pre-arrangement that if the husband did what he is shown to have done, the wife would do likewise, and vice versa. On the contrary, Sub-clause (4) shows that the executants reserve the power to amend or cancel this will. 13. Some argument was raised in regard to this clause, and whereas on the part of the petitioners-respondents it was said that the meaning of this clause was that the amendment or cancellation of the will had to be a joint amendment or cancellation and that the power to cancel or amend was exhausted immediately one or other of the executants died; on the other hand it was contended that in the absence of clear words indicating that the reserved power could only be exercised jointly, while both the parties were alive and not thereafter, the reservation of the power of revocation must be taken to be by both, whether the one or the other was dead. We have considered the matter carefully and ha....
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.... What she says is as follows: "Sometime ago I the executant at the instigation of others executed a will dated 4th July and registered on 8-7-1941 Ex. No. 11 at page 18 of Book No. III volume 7 in favour of Musammat Surendra Bala and Suresh Chandra with respect to the house aforesaid unknown to my husband and other members of my family, but according to legal advisers certain defects had remained in the will aforesaid for removal of which I, the executant, as directed by Musammat Surendra Bala, Suresh Chandra and Subodh Chandra conveyed their wishes and disclosed everything done at that time to my husband. He was very much displeased on coming to know of it and did not at all agree with me. But when I insisted and the above named persons exercised pressure my husband aforesaid without the knowledge of his own brother Pandit Bhawani Prasad mentioned above executed another will cancelling the will aforesaid, with respect to the house mentioned above and the cash deposited in the Co-operative Bank, Janauli and the Jwala Bank, Firozabad dated 15th November and registered on 17th November, 1941 Exhibit No. 17 at pages 26 and 27 of Book No. III, volume 7 in favour of Musammat Sure....
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....itioners-respondents also invited our attention to the deposition, of Ram Chandra Paliwal. In his examination-in-chief Ram Chandra Paliwal said as follows: "They (meaning the husband and wife) both said that Suresh, etc. had served them well, so they were going to leave their house and other property to Suresh ............. I think they called me that day simply to inform me about the arrangements so that there should not be any dispute later. They did not mention when the will was executed. ..... At first Kuar Lal told me about the arrangements, then his wife told me the same thing." It is not evident from what has been quoted above whether it was Ram Chandra Paliwal's inference that an arrangement had been made; or whether the executants said that they had come to a mutual reciprocal arrangement which was embodied in the will. It should be noted that, according to Ram Chandra Paliwal, both husband and wife said that Suresh, etc. had served them well, so that apparently both were individually satisfied with these persons and therefore it was not a case where the one person was wishing to make a devise in favour of Suresh Chandra and others, because the other person....
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....ing to its tenor so far as it is the will of the husband and so far as it disposes of the half share in the two banking accounts. 19. We may now refer to some of the authorities that have been cited before us. The first case to which our attention was- invited was the case of K. Govindan Kaimal v. T. T. Lakshmi Amma AIR 1959 SC 71. We need not set out the will which arose for interpretation in that case. It has been quoted in the judgment of their Lordships of the Supreme Court. The point for determination in that case was whether one of three executants of the will in question dated February 10, 1906, became entitled under the will to the properties which were the subject matter of dispute in that case. Their Lordships of the Supreme Court interpreted the will and held according to the head note: That under the will all the three testators did not become joint owners of all the properties on which it operated. There were three executants of the will. Each of them possessed properties, which were his or her self-acquisitions. They also owned some properties which they had jointly acquired, but their title to such properties was as tenants-in-common and not as joint tenants. Each ....
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....rty independently makes a bequest to the other, and the other party independently makes a similar bequest to the first party. The bequests of one to the other have to be interdependent. In other words, the one bequest must have been caused by an agreement that the other bequest will be made. We have no doubt that the word "reciprocal" used by their Lordships of the Supreme Court in the case cited above has been used in the sense that the word "reciprocal" is used in the Contract Act and in the Law of Contract as implying the moving of consideration from both sides. 22. In Gray v. Perpetual Trustee Co. 1928 AC 391, it was held that the fact that a husband and wife have simultaneously made mutual wills giving each to the other with life interest with similar provisions in remainder is not in itself evidence of an agreement not to revoke the wills. In the absence of a definite agreement to that effect as was observed there is no implied trust precluding the wife from creating a trust, even though her husband has died and she has taken the benefits conferred by his will. In our view it makes little difference whether the will of the husband and wife are by two sep....
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.... the evidence it was found that it had not been made out that there was any sufficient evidence of any further agreement. The House of Lords affirmed the view taken by Astbury J., in Re Oldham 1925 Ch 75. 26. It is not necessary in view of the fact that (1769) 21 ER 332 supra, has been subjected to judicial examination and explanation to examine that case over again. 27. Suffice it to say that on an examination of the authorities hereinbefore mentioned it is established that without a reciprocal arrangement, it is open to a person to revoke his own will, even though he obtains the benefits in the identical terms in which he has bestowed them on another party who has made a will in his own favour. 28. We are therefore of the view that the will dated the 15th of November, 1941, stood revoked in so far as the dispositions made by Smt. Ram Pyari were concerned, but that it remained effective so far as the dispositions made by Pandit Kuar Lal in respect of his share in the deposits standing in his and in his wife's names in the Cooperative Bank, Jarauli, and in the Jwala Bank are concerned. 29. The will in relation to the personal property of Smt. Ram Pyari having been revoked b....