T.U. Mehta, J.
1. This reference raises the question regarding exemption from estate duty under section 29 of the Estate Duty Act, 1953, which contemplates exemption from duty in cases where the estate duty has been paid on settled property on the death of one of the parties to a marriage.
2. Following are the relevant brief facts of this reference. The respondent is the accountable person and he is related to the deceased, Shri Kamlashanker Gopalshanker Bhachech, as one of his grandsons. Deceased, Kamlashanker, died on 25th October, 1964. He had a wife named Mahendraba Kamlashanker Bhachech. The deceased and his wife each possessed certain properties which were of their individual ownership. They were also jointly possessed of certain properties one of which is a bungalow known as 'Dilhar Dwar' situated in Ellisbridge are of Ahmedabad. The dispute in this reference is with regard to estate duty leviable on 1/2 share of the wife of the deceased, Kamlashanker Bhachech, in this bungalow and the land appertenant thereto.
3. It is found that on 24th December, 1950, the deceased, Kamlashanker, and his wife, Mahendraba, made a joint will in respect of the above referred bungalow. The bungalow is situated on plot No. 825 and appertenant to its main structure, there are two blocks bearing Nos. 48/2 to 48/6. Over and above these two blocks, there is a garage, a bath room and two latrines as well as some open compound land appertenant to this structure. By the joint will executed by the deceased, Kamlashanker, and his wife, Mahendraba all these properties were disposed of. The relevant portion of the will which contains the terms of this disposal is as under :
'During our lifetime we shall continue to be the joint owners of the land, bungalow and blocks with their common bath room and two privies including the garage bearing No. 48/1 and shall be jointly entitled to the rents and income of the said land and blocks and the user and rent of the bungalow. After the death of one of us, the survivor shall become the owner of the said land, bungalow and blocks including garage No. 48/1 and the bath room and privies. The provisions hereinafter contained shall become effective after the death of the survivor of us. After the death of the survivor of us, we hereby devise and bequeath the said furnished bungalow including all things, articles, furniture, utensils, fixtures, etc. together with the portion of land and compound walls delineated on the plan hereto annexed and coloured red and marked 'B' to our grandson, Dilharshanker Chintvanshanker Bhachech. We hereby devise and bequeath our blocks Nos. 48/2 to 48/6 including garage bearing No. 48/1 with the said bath room and privies together with the portion of the land and compound walls delineated on the plan hereto annexed and coloured blue and marked 'C' to our grandson, Snehitshanker Chintvanshanker Bhachech. We hereby devise and bequeath the portion of the open land and compound walls delineated on the plan hereto annexed and coloured green and marked 'A' to our grandson, Hasitshanker Drupadshanker Bhachech.'
4. For the present, the rest of the provisions of the will are not necessary to be stated.
5. After making this joint will, Mahendraba, the wife of the deceased, Kamlashanker, died on 3rd January, 1954. The case of the revenue is that on the death of Mahendraba, the deceased, Kamlashanker, became the sole owner of the property in question and also filed his wealth-tax returns accordingly. It is an admitted position that after the death of Mahendraba, estate duty on her share, which passed on her death to Kamlashanker, has been paid. The deceased, Kamlashanker, died on 25th October, 1964, and after his death the question arose whether the respondent-accountable person is liable to pay estate duty only on 1/2 share which the deceased possessed in the disputed property or on the whole of the disputed property including the share which Mahendraba, the wife of the deceased, had in this property.
6. The contention of the accountable person on this question is that this is a case in which the provisions of section 29 of the Estate Duty Act apply because the property is a 'settled property' in respect of which estate duty has already been paid on the death of one of the parties in Part III which contemplates 'exceptions from the charge of duty'. Section 29 says that if estate duty has already been paid in respect of any settled property since the date of settlement on the death of one of the parties to a marriage, the estate duty shall not be payable in respect thereof on the death of the other party to the marriage, unless the latter was, at the time of his death, competent to dispose of such property. Therefore, the case of the accountable person is that since the property in question was settled by the joint will dated 24th December, 1950, in favour of the grandsons and since the duty has been once paid on the death of Mahendraba, one of the joint executors of the will, the second duty on the death of the deceased is not payable by virtue of the provisions of section 29. In this connection, the accountable person has further contended that on a true construction of the will, the deceased was neither at the time of the his death nor at any time during the continuance of the settlement, the full owner of the share of Mahendraba, because he had only a life interest therein to receive rents and profits from that share and, therefore, the exemption contemplated by section 29 comes into full force and the revenue is not entitled to levy any estate duty with regard to the share of Mahendraba on the death of the deceased.
7. As against this, the contention of the revenue is that if the provisions of the will are properly construed it will be noticed that on the death of Mahendraba the deceased became the full owner of the property and the grandsons were to receive the remainder, if any, at the time of his death. According to the revenue, therefore, no settlement as contemplated by section 29 of the Act came into existence on the death of Mahendraba.
8. It was also contended on behalf of the revenue that section 29 of the Estate Duty Act has no application to the facts of the present case inasmuch as it contemplates the liability to pay the estate duty to follow the creation of the settlement. It was contended that if the contention of the accountable person that the settlement came into existence on the death of Mahendraba is to be accepted, it should follow that liability to pay estate duty and the settlement both came into existence simultaneously and if that be so, provisions of section 29 would not be attracted.
9. The accountable person having failed before the Assistant Controller of Estate Duty and, thereafter, before the Appellate Controller of Estate Duty in appeal, approached the Appellate Tribunal. The Appellate Tribunal construed the will and came to the conclusion that the deceased, Kamlashanker, did not become according to the true construction of the will he got only life interest in the said property. This is what the Tribunal has observed in this connection in its judgment :
'In the present case even though in the will it has been loosely said that after the death of one of the testators the survivor shall become the owner of the land, bungalow and blocks, the so-called ownership has been defined in the immediately following part of the sentence by stating that the survivor shall become entitled to the rents and income and user of the said land, bungalow and blocks including the garage. In the following sentence it is also stated that after the death of the survivor the property will pass on to the grand-children as mentioned therein. It would thus appear that in terms of the will the survivor does not have an absolute right of ownership in regard to the property which was held by the other testator. His rights were confined to the right to receive rents and income and user of the premises but the right of disposition was not there.'
10. On these observations, the Tribunal decided in favour of the accountable person and held that the share of Mahendraba was exempt from estate duty as the case squarely falls within the ambit of section 29 of the Act.
11. Being aggrieved by this decision of the Tribunal, the revenue has preferred this reference in which the following question is referred to us for our opinion :
'Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the respondent is entitled to the full benefit conferred by section 29 and that as such no estate duty in respect of the half share in the joint property which originally belonged to late Mahendraba, the wife of the deceased, is payable by the respondent ?'
12. We have already stated above the respective contentions of the parties with regard to this question. The first contention is purely of law and concerns the correct interpretation of section 29 of the Act. The question is whether the provisions of this section are applicable to the facts of the present case. It is the second question which is the most important one because that question relates to the true construction of the joint will made by the deceased and his wife, Mahendraba, in the year 1950. The point involved in this question is whether the deceased was, at the time of his death, competent to dispose of one-half share of his wife in the property disposed of by the joint will dated 24th December, 1950.
13. For the sake of convenience, we shall first dispose of the first question which relates to the construction of section 29 of the Estate Duty Act.
14. Here the contention of Shri Kaji, the learned advocate of the revenue, was that section 29 comes into operation only in cases wherein the estate duty has become payable 'since the date of settlement'. It was contended that the expression 'since the date of settlement' clearly indicates that the settlement in question should first come into existence and the duty should become payable subsequent to the coming into existence of the settlement. Shri Kaji pointed out that if in this case it is believed, as is contended by the accountable person, that the settlement in favour of the grandsons came into existence on the death of Mahendraba, then it is not possible to believe that liability to pay estate duty come into existence subsequent to this settlement because any liability to pay the estate duty would also come into existence exactly at the moment of the death of the deceased. Thus, it was pointed out by Shri Kaji, the 'settlement' and 'liability to pay estate duty' both have come into existence simultaneously on the death of Mahendraba, and if that is so, section 29 in this manner, Shri Kaji wants us to interpret the word 'paid' as 'payable'.
15. The interpretation which Shri Kaji wants us to place on the section is confined only to the first part thereof which says that 'if estate duty has already been 'paid' in respect of any settled property since the date of the settlement, on the death of one of the parties to the marriage, the estate duty shall not be payable in respect thereof on the death of the other party to the marriage'. The above-quoted clause of the section uses the word 'paid' but the contention of Shri Kaji was that this word 'paid' should be read and construed as 'payable' and if that is so, it cannot be said that estate duty became payable 'since the date of settlement' if once it is believed that the settlement came into existence on the death of Mahendraba.
16. Presuming for the sake of argument that the word 'paid' is used in the first part of the section in the section in the sense of 'payable', we don't find ourselves in agreement with Shri Kaji that the expression 'since the date of settlement' excludes the possibility of the 'settlement' and 'liability to pay' estate duty coming into existence simultaneously. The dictionary meaning of the word 'since' is 'throughout' and this meaning does not exclude the possibility of a simultaneous happening. At any rate, looking to the language and the spirit of the section, it is clear to us that the expression 'if the estate duty has already been paid...... since the date of the settlement' means 'if the estate duty has become payable or has been paid either simultaneously with the creation of settlement or at any time thereafter'. The reason why we propose to read the section in this manner is not merely the wide dictionary meaning of the word 'since' but the fact that the section comes into operation only on the death of the surviving spouse and the obvious intention of the legislature in framing this section is to avoid double duty. This intention is frustrated if the word 'since' is interpreted narrowly as desired by the revenue.
17. Moreover, even if the word 'paid' is used in a wider context and not in its literal sense, it cannot be interpreted as excluding its literal meaning, namely, the actual fact of payment having already been made. What the revenue wants us to do is to put a narrower meaning by restricting it only to the sense of creation of liability thereby excluding the actual fact of payment. Any such interpretation would be highly artificial and against the spirit of the section. Therefore, even if the word 'paid' is given a wider meaning, it cannot be construed as excluding the past act of payment. That being so, the facts of this case do reveal that 'since the date of settlement', which is said to have come into existence on the death of Mahendraba, estate duty has been paid on her share in the property.
18. On the question of the interpretation of the word 'paid' we may refer to analogous provisions of section 5 (2) of the English Statute, and the following observations of Upjohn L. J. in Coutts & Co. v. Inland Revenue Commissioners :
'I think that the true construction of the word 'paid' where it occurs in section 5 (2) may be a matter of difficulty and for my part I see much to be said against giving it a literal meaning. Finlay J., in an unreported case of A. G. v. National provincial Bank Ltd., refused to do so, but he dealt with the matter with extreme brevity. I do not propose to suggest what meaning may ultimately be given to the word 'paid' and it may be that it is not possible to do more than say that whether duty has already been 'paid' for the purpose of section 5 (2) is a question of fact to be determined on the particular circumstances of each case. I am not for my part, however, prepared to go so far as to say that 'paid' should be read as 'payable'.'
19. We approve of these observations and hold that the meaning of the word 'paid' should be adjusted in the light of the foregoing discussion and the peculiar facts and circumstances of each case. On the facts of this case, we find the duty has been 'paid' 'since the date of the settlement'.
20. This brings us to the second point which, as noted above, contains the real controversy between the parties.
21. However, before touching the merits of the respective contentions raised by the parties on this point, it would not be out of place to refer to some relevant provisions of the Estate Duty Act. Section 5 of the Act is the charging section and provides that in the case of every person dying after the commencement of the Act, there shall be levied and paid upon the principal value of all the property settled or unsettled which passes on the death of such person, a duty called 'estate duty'. Section 7 says that the property in which the deceased or any other person had interest ceasing on the death of the deceased shall be deemed to pass on the deceased's death to the extent to which a benefit accrues or arises by the cesser of such interest. It is not in dispute that even if it is believed that the deceased had only a life interest in the disputed property that interest ceased and passed on his death to the other legatees named in the will. Therefore, application of section 7 to the facts of the present case cannot, and is not, in fact, disputed. Coming then to section 29, which contemplates exemption from estate duty, it provides as under :
'29. Settled property in respect of which since the date of the settlement estate duty has been paid on the death of the deceased's spouse. - If estate duty has already been paid in respect of any settled property since the date of the settlement, on the death of one of the parties to a marriage, the estate duty shall not be payable in respect thereof on the death of the other party to the marriage, unless the latter was at the time of his death, or had been at any time during the continuance of the settlement, competent to dispose of such property, and, if on his death subsequent limitations under the settlement take effect in respect of such property, was sui juris at the time of his death, or had been sui juris at any time while so competent to dispose of the property.'
22. This section speaks about 'settled property' and 'settlement'. Both these terms are defined by clause (19) of section 2 of the Act as under :
'2. (19) 'settled property' means property which stands limited to, or in trust for, any persons, natural or juridical, by way of succession, whether the settlement took effect before or after the commencement of this Act; and 'settlement' means any disposition, including a dedication or endowment, whereby property is settled.'
23. Looking to this definition, the property regarding which the deceased and his wife have made dispositions by their joint will in the year 1950 would be considered sas settled property, if it stands limited to, or in trust for the grandsons to whom it is ultimately directed. However, it would not be 'settled property' within the meaning of clause (19) of section 2 if it is found that the ownership rights of the deceased intervened between the death of his wife, Mahendraba, and the vesting in the grandsons to whom the property it directed. Ultimately, therefore, the question whether this property is 'settled property' within the meaning of section 2 (19) of the Act or not, is dependent upon the construction of the joint will executed by the deceased and his wife.
24. The real question which, therefore, arises to be considered is whether the deceased, who survived his wife a joint testator, was competent to dispose of her share which he inherited under the joint will. The contention of the learned Advocate-General was that the will in question is not merely a joint will but is a will which is joint as well as mutual containing reciprocal agreements between the parties making the will and, therefore, the deceased has no power to revoke any of the dispositions made in the will or to do anything inter vivos which would go against these dispositions. The argument was that there was an implicit agreement between the deceased and his wife that, on the consideration of each agreeing to bequeath his or her share in the property in favour of the survivors, each undertook not to do anything which would render the subsequent bequests in favour of grandsons ineffective, and if such was the agreement, the argument continued, it must follow that what the deceased received as a legatee was not the full ownership rights of disposal but only the limited life interest in the share of his wife, and this would be so, even if the status of the deceased as a survivor is described in the will as 'owner'. The contention was that, if this construction of the will is accepted, there comes into existence a resulting settlement in favour of the grandsons on the death of the wife and, hence, the property becomes a 'settled property' within the meaning of section 2 (19) of the Act. It was pointed out that, if once it is believed that this is a 'settled property', the accountable person earns exemption under section 29 of the Act, because, admittedly, the duty is once paid on it on the death of Mahendraba in the year 1954.
25. For the above construction of the will, the learned Advocate-General has put strong reliance on the English decision of Dufour v. Pereira and a Division Bench decision by the High Court of Madras in Kuppuswami Raja v. Perumal Raja.
26. As against this, the contention of the revenue is that the will is a joint will pure and simple, as there is no evidence of mutuality. It was contended that there is enough evidence in the language of the will itself to show that the survivor was to acquire full ownership rights over the property and was, therefore, competent at all times after the first death to revoke the will or to dispose of the property inter vivos. Shri Kaji, who appeared on behalf of the revenue, relied in this connection on those averments of the will which show that the bequests in favour of the grandsons were to take effect only on the death of the survivor. It was pointed out that, since as between those bequests in favour of the grand-children and the death of Mahendraba there was an intervening ownership right of the deceased, there was no resulting settlement in favour of the grandsons with the result that section 29 of the Act has no application to the facts of the case.
27. In our opinion, the correct approach in such cases is first to find out what was the dominant intention of the testators and what is the real nature of the bequest made by them. This can be found out, not from the decided case law, or from any doctrinaire approach, but from the peculiar facts and circumstances under which the dispositions have been made and the common-sense construction which can be placed on the language of the will having due regard to these facts and circumstances. The deductive process of first deciding the nature of different categories of wills, such as 'joint will' or 'mutual will' or 'joint and mutual will', and then proceeding to consider in which of the pigeon-holes of these categories, the will under consideration falls, is likely to lead us to a sterile scholasticism which would inherently be unreal. The discovery of the dominant intention of the testators cannot be made through the sophisticated niceties of law, but it can be easily made by construing the provisions of the will in the light of the peculiar circumstances of each case.
28. Therefore, before considering what is a joint and/or a mutual will, let us consider what was the real intention of the deceased and his wife in making the disputed will, and what is the exact nature of the dispositions contemplated by them.
29. It should be remembered that the contents of the will are clear enough to show that when it was executed the only direct heirs of the deceased and his wife were their grand-children to whom the property was ultimately directed. Their grand-children were the only persons who were entitled to their love and affection during the lifetime of either of these two spouses. Thus neither the deceased nor his wife had any reason to believe that if the survivor of them was made the absolute owner of the property, there was any danger of the property ultimately going to any person other than the grandsons. The deceased and his wife were far advanced in life when they executed this will, and unlike the western social conditions relating to which some of the English cases cited at the Bar were decided, the social concepts which nurtured the cultural existence of the deceased and his wife did not admit of any idea of remarriage of any of them after the death of the other. Under these circumstances, there was no scope for any doubt in the mind of either of these two spouses that, if the surviving spouse was made the absolute owner of the property, the interest of the grandsons to whom the property was ultimately to go would be put to any jeopardy. It is against this background that we should make an attempt to find out what was the real intention of the deceased and his wife in making this will.
30. In the foregoing portion of this judgment, we have already quoted the relevant portion of the will jointly executed by the deceased and his wife. A bare perusal of this portion of the will reveals the following facts, namely :
(1) Both the executants have described themselves as 'joint owners' of the property in question;
(2) They have further stipulated that after the death of either of them, the survivor 'shall become the owner' of the property in question;
(3) The next stipulation is that the detailed provisions as regards the dispositions made in favour of the grand-children 'shall become effective' after the death of the survivor; and
(4) After the death of the survivor, the different portions of the property are devised and bequeathed to different grandsons as shown in the will.
31. These are the main four feature of the excerpts of the will which we have quoted above. The question is whether, on a plain reading of these excerpts, it can be said that the executants of the will intended to make the survivor the full owner of the property or merely a limited owner thereof. It should be noted here that the will in question is drafted not by a layman but by a solicitor, and, therefore, it should be presumed that the vocabulary which is used by the executants in the will has been so used with complete understanding of the legal implications of the different words found in the bequest. It is in the context of this aspect of the matter that we have to consider in exactly what sense the word 'owner' has been used in these excerpts. Can it be said, as is done by the Tribunal in its judgment, that the word 'owner' was loosely used in the language of this will The principle of construction of such documents is that where absolute estate is granted in terms which are clear and explicit, and where the intention of the testator to grant the absolute estate is expressed in plain and unequivocal terms, then that intention should prevail, and the meaning of the terms used would not be cut down or abridged unless other terms used in the document lead to a construction which would abridge the said meaning. Therefore, the question is whether there is anything else either in the excerpts quoted above or in any other part of the document which would cut down or abridge the full implications of the meaning of the word 'owner' which is used with reference to the rights of the survivor. We are of the opinion that there is none. The Tribunal has put emphasis on the fact that just after referring to the ownership rights of the survivor, the will in the very next sentence refers to the right of the survivor to receive rents and income from the properties in question. The Tribunal has, therefore, concluded that the so-called ownership right of the survivor was confined only to the receipt of rent and income from the properties in question. In other words, according to the Tribunal, it was not the full ownership rights which was intended to be conferred on the survivor. In our opinion, this approach is wholly incorrect and this would be evident if again a reference is made to the excerpts quoted by us above. It should be noted here that in the opening portion of these excerpts the executants speak about their own ownership rights over the demised property, and while doing so, they have used the same language as regards the entitlement to rents and income as is found with regard to the ownership rights of the survivor. This shows that the executants have preferred to adopt a particular method of expressing and illustrating the ownership rights. In other words, mere reference to the entitlement to rents and income would not cut down the natural meaning and connotation of the word 'ownership'.
32. The learned Advocate-General, however, emphasised the fact that both the executants of the will have at different place unequivocally and emphatically stated that by making this will they were devising and bequeathing different portions of the property to their different grandsons. The argument was that these words show that the bequest in question is given effect to from the date of the will subject, of course, to the other provisions of the will; therefore, there is no scope for the contention that the executants had any intention to postpone the settlement of the said bequest or to cut down the same by creating intervening ownership right in favour of the survivor. We are not in any manner impressed with this contention because we fail to understand how the bequest could have been expressed in any other language since it is evident that it was purely a joint bequest. In fact, the document specifically states that the bequest contained in it 'shall become effective after the death of the survivor'. This direction of the will makes it clear beyond any doubt that the bequest in favour of the grand-children were not to come into existence till the survivor died. In other words, the settlement in favour of the grand-children in the form of the bequest would come into existence not on the date of the first death but on the date of the death of the survivor. Till then, no right was created in favour of the grand-children. The learned Advocate-General contended that the statement in the will that the provisions of the bequest shall become effective after the death of the survivor merely indicates the time factor and has no connection with the existence of the bequest at all. We are unable to accept this line of reasoning, because, every testamentary bequest comes into existence only on the date on which it becomes effective. Therefore, when the executants have specifically provided in the will that the bequest in favour in the will that the bequest in favour of the grandsons would become effective only after the death of the survivor of them, what they have unequivocally indicated is that during the lifetime of the survivor, there would be no settlement of any bequest in favour of the grandsons.
33. In this connection, the learned Advocate-General further drew our attention to clause (3) of the will which creates certain per-emptive rights with regard to the bequeathed property as amongest their grandsons and their heirs. The contention was that this clause indicates that the intention of the executants of this will was to see that so far as possible the property should not go out of the hands of their direct heirs. It was, therefore, contended that the directions contained in clause (3) of the will further illustrate the intention of the executants not to enable the survivor of them to do anything which would defeat the ultimate bequest in favour of their grandsons. We are unable to read any such intention from clause (3) of the will, because the fact remains that even if the survivor was to take the property as the sole owner the executants of the will did intend that the residue of this property should ultimately go to their grandsons, who, as pointed out above, were the o only recipients of their natural love and affection. In view of the fact that this property or its residue was to go to their grandsons it was natural that the executants thought it proper to provide for the rights of pre-emption as found in clause (3). It is obvious that even if the survivor was made the sole owner of the property, the possibility of the property going to the grandsons on the death of the survivor could not have been ruled out by the executant of the will. Therefore, when they stipulated rights of pre-emption in clause (3) of the will, what they really did was to make some provisions for a future possibility envisaged by the will. By providing for such a future possibility, the executants of the will were not, in any manner, cutting down the ownership rights of the survivor.
34. The learned Advocate-General also drew our attention to clause (4) of the will which stipulates that, in the event of the death of any of the grandsons during the lifetime of the executants or their survivor, the bequest contemplated by the will should go to the heirs of the grandson so dying. It was contended that even this clause of the will goes to show that the executants intended to keep the property only in their family, and thereby to put a feter on the full ownership rights of the survivor. As already stated above, there was complete understanding between the two executants who were related as husband and wife, and they had not the slightest reason to doubt that, if the survivor of them was made the absolute owner of the property, he or she would give away the property to anybody except their grandsons and their children. Therefore, even this clause is found to be a mere safeguard against a future possibility. Under the circumstances, even from this clause, we do not find anything which would detract from the proposition that the executants of the will intended to confer full ownership rights on the survivor.
35. We find that clause (5) of the will is capable of supplying a strong indication as to how the mind of the executants of this will was working at the relevant time. This clause is in the following terms :
'(5) Certain moneys are lying in some banks both in current account and savings account in our joint names. We bequeath all such amounts lying to our credits at the time of the death of the survivor of us to our grandson Dilharshanker Chitvanshanker Bhachech and in the event of his death before the survivor of us to his heir according to law.'
36. This clause of the will speaks about the bank deposits of the executants of the will. What bequeathed from these bank deposits is only the amount lying to the credit of the survivor at the time of his death. This indicates that what the executants were contemplating was to make the bequest only of that property which was available at the time of the death of the survivor. It would not be improper to take this clause of the will as giving proper indication of the mind of the executants. We find that the executants have treated their immovable property in the same manner in which they have treated the cash deposits lying to their credit in the banks, and it is for this reason that they have advisedly stated that the survivor of them shall become the owner of the land, bungalow and blocks of the immovable property referred to in the will.
37. Our reading of the intention of the executants to create ownership rights in favour of the survivor is fortified by the circumstance that the deceased, Kamlashanker, must have naturally been anxious to see, at the time of executing this will, that his wife, Mahendraba, was not left at the mercy of the grand-children. This object could be best achieved only by providing that after his death, if his wife survived, she would be the full owner of the property, so that the grand-children, to whom the property was ultimately to go, would attend upon her properly.
38. These are, therefore, the special facts and circumstances of the case which lead us to believe that the executants of the will wanted to confer the full ownership rights on the survivor. It is, of course, true that, if the survivor was made the full owner of the property, he or she was at liberty to transfer the property by transactions inter vivos or to dispose it of by a testamentary disposition, in which case, the interest of the grandsons in the property was bound to suffer. But as already discussed above by us, looking to the special type of relationship between the parties, none of the executants had any reason to entertain any such doubt with regard to the other. The argument that if such a construction of the will is adopted, the intention of the executants to bequeath the property ultimately to their grandsons would be frustrated, is very effectively answered by this court in a recent Full Bench decision in Shantilal Babubhai v. Bai Chhani, wherein it is held that, where the intention of the testator to grant absolute estate is plain and unequivocal, the gift over being repugnant to the absolute estate granted to the first donee would, in such a case, fail.
39. Having thus construed the will, we shall now take up for our consideration the different arguments advanced before us as regards the mutuality of the will under consideration. The contention which was raised by the learned Advocate-General on behalf of the accountable person was that, if once it is believed that the will executed by the deceased and his wife is a mutual will, then it should not be so construed as to enable the survivor to revoke any of its provisions or to do anything which would render its provisions fruitless. It was, therefore, greatly emphasised that we should first construe this will as a mutual will. We have already noted above that the contention of the revenue is that there is no element of mutuality in this will and, therefore, it is nothing more than a joint will. In view of these contentions, we shall presently consider the concepts of mutual will and a joint will and the will which is both joint and mutual. Halsbury defines the concepts of joint as well as mutual will as underat pages 846 and 847 of volume 39 of the third edition :
'Joint wills. - A joint will is a will made by two, or more, testators contained in a single document, duly executed by each testator and disposing either if their separate properties or of their joint property. It is not, however, recognised in English law as a single will. It is in effect two or more wills; it operates on the death of each testator as his will disposing of his own separate property; on the death of the first to die it is admitted to probate as his own will and on the death of the survivor, if no fresh will has been made, it is admitted to probate as the disposition of the property of the survivor.'
40. Mutual will is described as under :
'Wills are mutual when the testators confer upon each other reciprocal benefits, and these may be absolute benefits in each other's property, or they may be life interests, with the same ultimate disposition of each estate on the death of the survivor. In practice the several wills which constitute a joint will are mutual but the reciprocal benefits can be given by separate wills, and these are known as mutual wills. Where there is an agreement not to revoke mutual wills and one party dies having stood by the agreement, a survivor is bound by it.'
41. These observations show that a joint will is a document wherein two persons having separate rights in one property or different properties unite persons having separate rights in one property of different properties unite together for the purpose if making a will. They probably unite because their purpose is the same. But a joint will is nothing but different wills made by different testators jointly. This is not so in the case of a mutual will because a mutual will is the result of reciprocal promises, and the promise given by one testator operates as consideration for the promise exchanged by the other. In other words, in the case of mutual wills, there is an element of agreement. It follows from this analysis that a joint will does not automatically become a mutual will unless it is found that the testators had agreed either expressly or by necessary implication to make reciprocal promises with a view to carry out the common purpose. We, therefore, find that an agreement to exchange reciprocal promises is the sine qua non of a mutual will, and the mere fact that by virtue of the operation of the provisions of a will, mutual benefits are given by the testators would not be sufficient to indicate such an agreement. In this connection, we find the following observations at page 853 of the same volume of Halsbury :
'Mutual wills may be made, either by a joint will or separate wills in pursuance of an agreement that they shall not be revoked; such an agreement may appear from the wills or may be proved outside the wills, but it is not established by the mere fact that mutual benefits are given. If no such agreement is shown, each party remains free to revoke his will, if there are separate wills, or to revoke the joint will, so far as it disposes of his property, and the fact that one party has died without revoking the disposition of his property does not prevent the survivor from revoking the disposition which he has made notwithstanding that he has received benefits out of the estate of the deceased party.'
42. From these observations it is clear that before holding that a particular will is a mutual will, the court is always required to find out whether the mutuality in question is the result of any agreement between the testators. The learned Advocate-General contended on this point that if from the provisions of the will it is found that the surviving testator gets the benefit of the property which he did not possess, as a result of the testamentary disposition made by the dying testator, and if the surviving testator is found to have taken the benefit of that disposition, then the agreement which is contemplated in the mutual will should be presumed to exist. It was pointed out that the English decision of Dufour v. Pereira rested on the facts of this type and the only evidence about mutuality which was available in that case, was available from the will itself. The decision given in Dufour's case has been referred to in many English decisions and is also referred to in a few Indian decisions which are reported on this point. However, full facts of that case are available only from the subsequent decisions which make a reference to it. In that case a husband and wife, who had a power to bequeath some personal property secured to her separate use, made mutual will of November 21, 1945. The residuary estate of each was pooled into one common fund and bequeathed to the survivor for life with limitations over. The wife survived, and having enjoyed the property for her life, died leaving a will which disregarded the trusts of this mutual will. The beneficiaries under the mutual will filed a bill. The judgment of the case was delivered by Lord Camden. It seems to have been based on the fact that the two executors had agreed to pool their estates and, in consideration of the agreed benefits which the survivor was to take, to give effect to the agreement which Lord Camden apparently held they made with regard to the disposition of the capital. During the course of his judgment Lord Camden is found to have made the following observations regarding the instrument itself providing evidence of mutuality. He observed :
'The instrument itself is the evidence of agreement - (i.e., the agreement creating the trust he enforced) - and he, that dies first, does by his death carry the agreement on his part into execution. If the other then refuses, he is guilty of a fraud, can never unbind himself, and becomes a trustee of course. For no man shall deceive another to his prejudice. By engaging to do something that is in his power, he is made a trustee for the performance, and transmits that trust to those that claim under him.''
43. From these observations, it is clear that Lord Camden read the instrument itself as the evidence of agreement, which is, as observed above, an essential ingredient of a mutual will. The question whether the instrument itself can be read as evidence of agreement, has been the subject-matter of consideration in subsequent decisions in England. Before referring to these decisions, it would be proper to note that the line of reasoning adopted in Dufour's case has also been followed by Sir Gorell Barnes in Stone v. Hoskins. In that case also, it is observed that where two persons have made an arrangement as to the disposal of their property and executed mutual wills in pursuance of that arrangement, the one who pre-deceases the other, dies with the implied promise of the survivor that the arrangement shall hold good; and if the survivor, after taking a benefit under the arrangement, alters his will, his personal representative takes the property upon trust to perform the con tract, for the will of the one who has died first has, by the death, become irrevocable. The question which now arises to be considered is how far these principles are applicable to the facts of the present case, and how far the ratio of the decision in Dufour's case, that instrument of the will itself is evidence of the agreement, has been accepted by the subsequent English decisions.
44. We find that in three subsequent decisions, the above-said ratio of Dufour's case has been considered by the English courts. The first is Lord Walpole v. Lord Oxford, the second is In re Oldham and the third is a privy Council decision in Gray v. Perpetual Trustee Co. Ltd. We shall presently refer shortly to the facts of these cases and show how the Dufour's case was considered by these decisions.
45. Dufour's case was decided by Lord Camden in 1769. Lord Loughborough was a counsel in that case. But, subsequently, he had an occasion to record his impressions about Dufour's case, when he decided in the year 1797 the very same questions as Lord Chancellor in Lord Walpole v. Lord Oxford, where the wills were only partially mutual and the implied trust was wholly uncertain. Lord Loughborough agreed with the principles laid down by Lord Camden in Dufour's case, but emphasised the importance of an agreement as regards the mutuality in the following words :
'These plaintiffs now insist upon the agreement, which they state. As to the extent of it, it does not exist anywhere so that I can see, what they agreed to; but the fact of some agreement is to be implied from the contemporary execution of the two instruments and the other circumstances. From the co-existence of the instruments and the execution at the same time I do infer, that they had agreed to make, the one a codicil, the other a will. I conclude with the bill, that both considered it an honourable engagement.'
46. Proceeding further he has observed as under :
'Choosing to do it by will, it is a wide conclusion for me to draw, that if the parties had been to express their agreement, it would have been in terms to make it finally binding upon each and irrevocable. But, for this court to execute an agreement it is always necessary, that the terms should be clear. Here it is uncertain, whether they meant it to amount to a legal obligation. There is no evidence, nothing upon which I can obtain a clear and defined solution of that; and I lay it down as a general proposition, to which I know no limitation, that all agreements in order to be executed in this court must be certain and defined.'
47. These observations of Lord Loughborough make it clear that before the principle accepted in Dufour's case can be worked upon, the court should insist upon a clear and unambiguous agreement not to revoke the previous will - the agreement which can be executed by a court.
48. In In re Oldham, a husband and a wife made mutual wills in the same form in pursuance of an agreement so to make them, but there was no evidence of any further agreement in the matter. Each gave his or her property to the other absolutely with the same alternative provisions in case of lapse. The wife having survived and accepted her husband's property under his mutual will subsequently married again, and made a fresh will ignoring the alternative provisions of her own mutual will. The plaintiff in that case supported the provisions of the joint will and contended that, from the agreement to make mutual wills in the form in which they were made, the survivor who accepted the benefit under the mutual agreement became there by subject to alternative trusts mentioned in the mutual wills. Reliance was placed by her on Dufour's case. Astbury J., while delivering the judgment, made the following observations on the point under consideration :
'The first point to determine is whether from the evidence in this case, which substantially consists only of the facts of the making of these mutual wills in the terms I have stated, I am bound or able to come to Lord Camden's conclusion in Dufour v. Pereira, that there was in fact an agreement or arrangement between the husband and wife that the survivor, here the wife, who was to take the other's property not for life but absolutely should if she accepted the benefit be bound not to alter the disposition in the second part of her 1907 will.
49. The plaintiff contends that no such arrangement need be proved outside the fact of the form of the mutual wills.
50. I regret that I am unable in the circumstances of this case to give effect to that contention, and all the more so because I have no doubt at all that if the husband in 1907 had foreseen that his wife after seven years of survivorship would marry a young man and her own relatives he would have made a very different testamentary disposition.
51. In order to enforce the trust for which the plaintiff contends I must be satisfied that its terms are certain and unequivocal and such as in the circumstances I am bound to give effect to. What is the evidence of that? Of course it is a strong thing that these two parties came together, agreed to make their wills in identical terms and in fact so made them. But that does not go nearly far enough. If the spouses intended to do what the plaintiff suggests, it is difficult to see why the mutual wills gave the survivor an absolute interest in the whole of the property of the one who died first.'
52. The same reasoning which is adopted by Astbury J. in the above observations applies to the facts of the case under our consideration. Here on the construction of the plain words of the will, we find that the executants specifically provided that the survivor of them should become the sole owner of the property bequeathed on the demise of one of them.
53. It is such a provision which distinguished Oldham's case from Dufour's case and which also distinguishes the present case from that case. Speaking about this distinguishing feature, Astbury J. has observed as under in In re Oldham :
'Finally, I think a very great difference between Dufour v. Pereira and the present case is that in Dufour v. Pereira the capital of the trust property was secured in fact by the life interest only being given to the survivor, whereas in the present case the survivor is given the whole estate absolutely, and could, if so minded, dispose of the whole property inter vivos.'
54. These observations can be profitably utilised in the instant case.
55. The third decision in Gray v. Perpetual Trustee Co. Ltd. is a Privy Council case which originated in Australia. In this case it was held that the fact that a husband and wife have simultaneously made mutual wills, giving each to the other a 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 there was no implied trust precluding the wife from making a fresh will inconsistent with her former will, even though her husband had died and she had taken the benefits conferred by his will. It is further held in this case that although by the mutual wills the wife expressly had refrained from exercising a power of appointment, which her husband had, only in default of her exercising it, the wife can both take the benefit of her husband's will and exercise her power of appointment, unless the language of his will either pout her to her election, or placed her in the position of seeking at the same time to approbate and reprobate its provisions. This case has considered the implications of Dufour's and other cases on the point. Speaking of Dufour's case, Viscount Haldane has observed as under :
'In Dufour v. Pereira, the conclusion reached was that if there was in point of fact an agreement come to that the wills should not be revoked after the death of one of the parties without mutual consent, they were binding. That they were mutual will to the same effect was at least treated as a relevant circumstance, to be taken into account in determining whether there was such an agreement. But the mere simultaneity of the wills and the similarity of their terms do not appear, taken by themselves, to have been looked on as more than some evidence of an agreement not to revoke. The agreement, which does not restrain the legal right to revoke. The agreement, which does not restrain the legal right to revoke, was the foundation of the right in equity which might emerge, although it was a fact which has in itself to be established by evidence and in such cases the whole of the evidence must be looked at.'
56. This Privy Council decision has agreed with the view taken by Astbury J. in In re Oldham in the following words :
'Their lordship agree with the view taken by Astbury J. The case before them is one in which the evidence of an agreement, apart from that of making the wills in question, is so laking that they are unable to come to the conclusion that an agreement to constitute equitable interest has been shown to have been made as they have already said, the meer fact of making wills mutually is not, at least by the law of England, evidence of such an agreement having been come to. And without such a definite agreement there can no more be a trust in equity than a right to damages at law.'
57. Thus, even this decision emphasises the necessity of proving a clear and unambiguous agreement not to revoke the will. These subsequent English decisions thus make it clear that the observations in Dufour's case that the testamentary instrument itself is an evidence of agreement, not to revoke, cannot be accepted as a valid statement for all cases to follow. Such an agreement, like all others of this type, should be proved by positive evidence.
58. Necessity of such a positive evidence is also recognised by the two Indian decisions which are reported on the subject, and to which we shall presently refer. It should be noted that the learned Advocate-General has put great reliance on one of these two decisions which is the decision given by a Division Bench of the Madras High Court in Kuppuswami Raja v. Perumal Raja. We, however, find that even this decision recognises the importance of the proof of such an agreement. After referring to the English decision on this point, the Madras High court has summarised the legal position in the English law as under :
'From the above discussion of the relevant cases, it will be clear that under the English law in order to render mutual wills irrevocable, both the conditions must be concurrently satisfied : (a) the surviving testator must have received benefits from the deceased under the mutual will, and (b) the mutual wills should have been executed in pursuance of an agreement not to revoke the wills may either appear from the wills them selves or may be proved outside the wills.'
59. In fact the said High court was at pains to point out to the facts from which the agreement as regards irrevocability could be spelt out in that case. Reference to paras. 33 and 34 of the reported judgment makes this quite clear. The details of the will, which the High Court considered in that case, are given in para. 5 of the judgment. These details show that two brothers belonging to a Hindu family, having attained the advanced age, and having no issue male or female of their own, pooled their self-acquired and joint properties together each relinquishing his own separate rights therein, with an idea that they should enjoy them together during their lifetime. They made bequests of these properties. One of the brothers thereafter died and the survivor made another will. On these facts the High Court held that was sufficient material to find that there was an implied agreement between the two brothers that the arrangement made by them in their joint will shall not be revoked. In fact the discussion contained in paras. 40 to 43 clearly shows that the High court was of the view that the joint will which they considered was in substance a family arrangement. This is clear from the following observations which are found in para. 43 :
'We are of the opinion that the ends of justice clearly require that the document, exhibit A-1, should be upheld and given effect to as a bona fide family arrangement.'
60. We find that, on the peculiar facts of that case, such a view was possible. But we find it difficult to accept the following observation of Ramamurti. J in that case as applying to all cases of joint and mutual wills irrespective of the peculiar facts and circumstances of each case. These are the observations in para. 32 of the reported judgment :
'We confess that the matter is not free from difficulty. But after a careful consideration of all the aspects of the matter, we are inclined to take the view that a joint mutual will becomes irrevocable on the death of one of the testators if the survivor had received benefits under the mutual will, and that there need not be a specific contract prohibiting revocation when the arrangement takes the form of not two simultaneous mutual wills but one single document. In fact in some of the cases referred to above this aspect that if the two testators had executed one single document as one single mutual will the position may be different is actually adverted to. In our opinion, if one single document is executed by both the brothers using the expressions 'our property', 'our present wishes', 'our will' and such similar expressions, it is strong cogent evidence of the intention that there is no power to revoke except by mutual consent.'
61. Much emphasis was laid on these observations by the learned Advocate-General because in the case under our consideration, there is but one single document by which the parties have expressed their will, for the reasons which follow, we find ourselves unable to subscribe to the view that the mutual wills expressed in a single document would make any difference.
62. It two separate documents evidencing the element of mutuality are, by themselves, not sufficient to spell out an agreement not to revoke, it is difficult to comprehend what difference would a single document make in that position. If the singularity of the document is itself sufficient evidence of an agreement prohibiting a power to revoke, then we are afraid every will executed jointly by more than one person would necessarily be a mutual will. Moreover, even the expressions such as 'our wills', 'our property', 'our present wishes' would also make no difference because when two or more persons join in making a will, such expressions are inevitable, in our opinion, joint will becomes 'joint and mutual' only when two types of agreements are evidenced, namely, (1) the agreement to join together to make the dispositions in question, and (2) the agreement that the dispositions made jointly shall not be revoked any of the executants without the consent of the rest. Evidence of the first type of agreement is, in the very fact, that the will is jointly made, but the evidence of the second type of agreement is required to be obtained from internal sources and it would not be proper to say that this evidence should be presumed to exist from the mere fact that dispositions are made by the single document.
63. Reliance was also placed by the learned Advocate-General on the Supreme Court decision in Kochu Govindan Kaimal v. Lakshmi Amma. In that case while repelling the argument that the joint will, which as considered by the court, was also a mutual will, the Supreme Court observed that a will is mutual when two testators confer upon each other reciprocal benefits, as by either of them constituting the other his legatee, that is to say, when the executants fill the roles of both testator and legatee towards each other. But where the legatees are distinct from the testators, there can be no question of a mutual will. The High Court of Madras, in the above referred case, has interpreted these observations as under in para. 30 of the reported judgments :
'If the statement of the law in the judgment of the Supreme Court is to be regarded as complete it would appear that the supreme court did not think it necessary that in order to make the mutual will irrevocable both the conditions (a) benefit, and (b) agreement not to revoke except with mutual consent, should be concurrently satisfied in every case. In other words, that it is enough for a mutual will to be irrevocable if the surviving testator receives the benefit of the property of the deceased under the mutual will.'
64. So far as the last sentence of the above excerpt is concerned, we, with respect to the learned judges, find it difficult to read the above referred observations of the supreme court in the manner in which they are read by them. Reference to the facts of the Supreme court case shows that there was a will which was jointly executed by three persons. After the death of two of them, the third one made an entirely different disposition of property. It was contended before the supreme court that the earlier will in question was a joint and mutual will and, therefore, the third surviving testator had no authority to execute the new will. The Supreme Court interpreted the will as only a joint will and not a mutual will. It is in the context of the question whether the will was a joint will simpliciter or a joint and mutual will that the Supreme court has made the above referred observations. But it is obvious that these observations are not made with a view to define or ex plain all the implications of a mutual will. In fact, the Supreme Court wanted to point out one distinguishing feature between a joint will and a mutual will and while doing so, it seems to have picked up only one distinguishing feature which was sufficient for its purpose. There is no doubt that the receipt of reciprocal benefits by the joint executants of a will is one of the considerations which would distinguish a mutual will from a joint will. But that is not all, because the foregoing discussion shows that another important distinguishing feature is that in a mutual will, where should be some internal or external or external evidence of an agreement not to revoke the provisions of the will. This aspect is not considered by the Supreme court as, in fact, it was not necessary to be considered for the disposal of that case. Under the circumstances, we find that the observations made by the supreme court in that case cannot be construed as laying down a proposition that if the surviving testators receive benefit of the property of the deceased under a mutual will, that fact, by itself, would be sufficient to make the will irrevocable by the surviving testator.
65. We find that a case which was very much similar to the instant case is the Allahabad decision in Bhawani Prasad v. Smt. Surendra Bala. The facts of that case show that by a single will, a husband and his wife divised the property of which each was owner. The property in the first instance was devised to whoever survived and thereafter to the petitioners. The property was referred to by the executants of the will were to remain in absolute possession and enjoyment of the executants of the will as the one 'belonging to us'. The properties devised by the will were to remain in absolute possession and enjoyment of the executants during their lifetime and thereafter they were to be disposed of in the manner indicated in the will. There was a clause in the will which further indicated that the executants would have the right to amend or cancel the will and that nobody else would have that right. The High court held that, on the language of the will, although there was no d out that there was a devise by the husband to the wife and by the wife to the husband of her interest, the devise being limited to a life interest, there was nothing to show either in the language of the will or other evidence that the devise of one was made in consequence of an agreement between them, and that the consideration for one devise was the making of the other. The High court found that though there was undoubtedly a devise by each of the other, there was no evidence that the devise was based on reciprocity, or in other words, that the mutuality of the devise was as a result of a reciprocal arrangement. On the contrary, the High Court found that sub-clause (4) indicated that the executants reserved the power to amend or cancel this will. Referring to the Supreme court decision referred to above, the High court interpreted the same as under :
'It will be observed that it is the mutuality, based upon a reciprocity of benefits, which makes a will mutual. Reciprocity of benefit means that there has been a bargain to give and take. Therefore, in our view, it is essential, for a will being considered mutual, that there should be reciprocal benefits. It does not suffice to make a will mutual if one party 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 inter-dependent. In other words, the one bequest must have been caused by an agreement that the other bequest will made.
66. 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 contracts as implying the moving of a consideration from both sides.'
67. It is, therefore, clear that the Allahabad High Court shares the view that in order to prohibit the testators of a joint will from revoking the provisions of that will, there should be an agreement to that effect between the parties.
68. Now, coming to the facts of the present case, can we say that such an agreement is proved If once we hold that the mere fact that each of the executants was to take the property of the other as a legatee, is not by itself sufficient to prove an agreement not to revoke, we must insist on some other evidence, either internal or external, to prove the agreement of this type. So far as the external evidence is concerned, there is none in this case. So far as the internal evidence is concerned, it is apparent that each of the executants of the will under consideration might have thought it quite safe to trust the other, and to believe that having regard to their ages and their affection for their grand-children, nothing was likely to occur in future which would substantially diminish the property taken by the survivor who could be trusted to give effect to the wished expressed in the will. We thus find that, if there was an agreement, the same was confined only to the making of the will and jointly bequeathing the property to the same set of persons. From such an agreement we cannot jump to the conclusion that there was also an agreement that the survivor shall not revoke the will or do anything which would diminish the quantum of property going to the hands of the subsequent legatees. Thus, if there is no agreement of irrevocability, it must follow that the deceased, as the survivor, took an absolute interest in this property, section 29 of the Estate Duty Act would have no application to the facts of the case.
69. The deductive process of logic sought to be applied by the accountable person to the facts of the present case is as under : Says he : as the executants have made that bequest to the survivor of them, presume that the will is mutual. If the will is mutual, presume that the said mutuality is the result of reciprocal promises that the will shall not be revoked by the survivor. If such promises are presumed, it should follow that the deceased had a limited interest, and not ownership rights in the property. If that is so presume also that when the executants specifically state in the will that the survivor of them shall be the owner of the estate, what they really intended was that he shall not be the owner.
70. In our opinion, this would be a reverse process of reasoning adopted to find out the real intention of the testators. Such a chain of presumptions would lead us to an 'attribution' of a particular intention and not to the 'discovery' thereof. As already stated by us above, the intention of the testator should be found out mainly from the language of the will and the surrounding circumstances under which it was made and finding out the intention of the testators in this manner, we have no doubt that the executants of the will intended that the survivor of them shall be the full owner of the property with full powers of disposition.
71. In view of what is stated above, we answer the question which is referred to us in the negative and in favour of the revenue. The reference is accordingly disposed of. The respondent-accountable person shall bear the costs of the Controller of Estate Duty in this reference.
72. On an oral application of the learned Advocate-General, we certify this to be a fit case for appeal to the Supreme court because, in our opinion, the questions involved in this reference are of general legal importance and also because there are conflicting decisions of different High Court in India on the implications of mutual wills.
73. Question answered in the negative.