R SOURI RAJALU NAIDU Vs. KOTHANDARAMA NAIDU
HIGH COURT OF KERALA
R.SOURI RAJALU NAIDU
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(1.) These two appeals arise from L. A. O. P. 930/1958 and 929/1958 respectively. The question for consideration in these two appeals is the same, namely, whether respondent No. 2 or 3 in the Trial Court is entitled to the tenant's share of the compensation for the acquisition in respect of the properties comprised in these two cases. Rajagopal Naidu, the father of respondents 2 and 3 had a leasehold interest in a property and portions of that property were acquired in these cases. Rajagopal Naidu had executed a will on 5th December 1947. That was an unregistered will and under that will he has devised his leasehold interest in the property to the 2nd respondent. Ext. B 36 is that will. The 3rd respondent claimed the same property under a registered will executed by his father on 15th October 1951 and that is marked as Ext. B 37 and his case was that his father did not execute Ext. B 36, that Ext. B 36 was a concocted document and that in any event it was revoked by Ext. B 37.
(2.) The courts below have found that Ext. B36 was genuine and that it was not revoked by Ext. B 37. They therefore held that the 2nd respondent was entitled to get the tenant's share of the compensation. The 3rd respondent has therefore filed this appeal.
(3.) The decrees were challenged on the ground that the finding of the court below on the question of the revocation of Ext. B 36 by Ext. B 37 is wrong. It was argued for the appellant that the language employed by the testator in Ext. B 37 can lead only to one conclusion, namely that by Ext. B 37 the testator made a complete disposition of all his properties including his interest in the property devised under Ext. B 36. In order to decide the question whether Ext. B 37 revoked Ext. B 36 one has to look into the nature of the disposition in Ext. B 37. Ext. B 37 does not contain any revocatory clause. There is therefore no express revocation of Ext. B 36. Then the only question is whether there was an implied revocation of Ext. B 36. Para.1 of Ext. B 37 states that the testator has 5 sons of whom the eldest son got himself separated from the joint family after taking his share in the joint family properties and that himself and the remaining 4 sons had executed a partition deed regarding the rest of the joint family properties. Para.2 states that besides the share of the testator in the joint family properties under the partition deed he owns a house, a cattle shed in the family 'Valappa' and one Thodikaparamba in Attakkulangara and another Thodikaparamba with 'Chamayam'. No mention is made in this para about his interest in the property devised under Ext. B 36. In para 4 it is stated that all the properties belonging to the testator are bequeathed to the 3rd respondent. The language used in para 4 would indicate that the testator was disposing of all his properties both movable and immovable. If para 4 stood by itself I have no doubt that Ext. B37 would have revoked Ext. B36. In Halsbury's Laws of England, 3rd Edn., Vol. XXXIX, page 892 it is stated:
"A later will or codicil may revoke all earlier wills even though it contains no clause of revocation. It is a question of intention in each case. Where a later unambiguous will deals with the testator's entire property, it revokes all earlier wills, and, if the later will practically covers the same ground as an earlier one, it must be taken as being in substitution for it".
In 'Jarman on Wills', 8th Edn., Vol. I page 193, it is observed:
"And a will may revoke an earlier testamentary document, disposing of the whole of the testator's property, even although the later will does not contain an express clause of revocation, and does not dispose of all the testator's property. It is a question of construction on the terms of the two documents".;
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