India: Supreme Court Rules On Right Of Alienation In A Joint And Mutual Will


Recently, the Hon'ble Supreme Court of India (Supreme Court) in the case of Dr. K.S. Palanisami (Dead) vs Hindu community in general and citizens of Gobichettipalayam and others (Civil Appeal No. 5924 of 2005 decided on 9 March 2017) ruled upon the issue of whether a testatrix had an 'absolute' right to deal with the properties under a 'joint and mutual will'. In arriving at its judgment, the Supreme Court held that courts are not entitled to ignore clear words or add something of its own or dilute the meaning of any clear word used in the legal declaration of a testator with respect to his property which he desires to be carried into effect after his death (Will).

After referring several cases to distinguish a joint Will from a 'joint and mutual' Will, the Supreme Court took the view that the solemn duty of the court is to find out and give effect to the intention of testator and a Will should not be analysed by encasing it within a conceptual strait-jacket.


One, Mr Palaniappa Chettiar and his wife, Rangammal jointly executed a Will dated 27 September 1968 (First Will). The First Will stated that on the death of either of them, the survivor shall enjoy the entire property absolutely. Separately, the First Will enumerated various charities to be undertaken from the income derived from the properties listed in the First Will.

After the death of Palaniappa Chettiar, Rangammal alienated about 10 properties by separate sale deeds which were in her name as well as few properties which were in the name of her deceased husband.

It was argued before the Supreme Court that since the First Will was a joint and mutual Will, Rangammal had no right to alienate any property after the death of Palaniappa Chettiar. As such, it was argued that all alienations of the properties made by her after the death of Palaniappa Chettiar were null and void.


In relation to the conflict that whether the First Will was a joint Will or a joint and mutual Will, the Supreme Court initially expounded the principles to differentiate between a joint Will and a joint and mutual Will. The Supreme Court explained that a joint Will is a Will made by two or more testators contained in a single document, duly executed by each testator, disposing either their separate properties or their joint property. It is in effect two or more Wills, and operates on the death of each testator as his Will disposing of his own separate property. Further, a joint Will is usually carried out to ensure that the surviving party will not change his/her mind regarding what should happen to the property after the first party dies.

On the contrary, joint and mutual Wills are separate Wills of two or more persons which are reciprocal in their provisions and executed in pursuance of an agreement between two or more persons to dispose of their property to each other or to third persons in a particular mode or manner. Such an agreement is enforced after the death of the first testator by means of a constructive trust, which implies that the surviving party shall not revoke his/her Will after the death of the other party.

However, the Supreme Court after scrutinising the phrasing of the First Will, overruled the High Court's reasoning that the expression 'absolutely' should be read to mean that Rangammal only had life interest to enjoy the rent and income from the combined properties. The Supreme Court came to the conclusion that the First Will is a 'joint and mutual' Will, as pursuant to the First Will, both husband and wife agreed to devote their properties for carrying out charities and mutuality to this extent was apparent in the First Will.

The Supreme Court consequentially held that the First Will was clearly irrevocable after the death of the husband; however given that the First Will expressly granted 'absolute' right to the survivor to enjoy the properties, the alienation of the properties by Rangammal cannot be bad in law, unless the alienation by Rangammal is held to be in complete breach of object of trust and fraud on trust.

Khaitan Comment

It is clear from this ruling that the cardinal maxim to be observed by courts in construing a Will is to endeavour to ascertain the intentions of the testator which has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised.

In consideration of the foregoing and given that when an expression, as unequivocal as, 'absolutely' may lead to myriad interpretations, it is vital to ensure while executing a Will that: (i) the construction of the Will is entirely unambiguous; and (ii) the Will specifically manifests the testator's intention re the testamentary disposition of his/her property.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.