MANI MANI AND ORS. versus MANI JOSHUA

Citation: [1970] 1 S.C.R. 71 · Decided: 21-03-1969 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
• 
B 
c 
D 
E 
., 
G 
H 
MANI MANI AND ORS. 
v. 
MANI JOSHUA 
March 21, 1969 
[J. c. SHAH AND A. N, GROVER, JJ.] 
fndian Succession Act (39 of 1925), s. 180--E/ection-Scope of. 
By a settlement deed of 1935, the owner of certain properties settled 
three itemll df property on his wife and two sons, the first appellant and 
respondent one item for each. 
Mutations were effected of the properties 
so settled in favour of the donees. 
Thereafter, he had executed three 
wills. 
In his last will and testament, there are two recitals that he had 
cancelled the previous settlement deed and wills and that the last will was 
to be the only document which should govern the disposition of his pro-
perties. 
The testator, by that will, also purported to give to the respon-
dent five items of property. ThOSe five items did not include the item 
settled on the respondent in 1935, but included certain properties which 
had been 'l"ttled in 1935 on the wifr and the first appellant. 
The testator 
further stated that the entire residue was bequeathed to the first appellant, 
but did not state specifically that he was giving away to the first appellant 
the property which he had settled on the respondent in 1935. After the 
death of the testator the respondent filed a suit claiming the item settled 
on him in 1935, on the basis that he had a right under the will to get 
the five items bequeathed to him thereby, in addition to the item settled 
on b.im in 19"35, because, by reason of the 
settlement 
in his favour it 
could not form the subject matter of the bequest in favour of the first 
appellant. 
On the question whether by accepting the benefit under the will by 
talcin_g the five items bequeathed· to him thereby, the respondent exercised 
his nght of election and precluded himselt •from asserting any right to the 
item settled on him in 1935. 
HELD : Under s. 180 of the Indian Succession Act, if a legatee has 
been given any benefit under a 
will and his OlVn property has a/sc been 
disposed of by that very will, the legatee must elect either to confirm such 
disposition or to dissent from it, and in the latter case, he must relinG.uish / 
al1 his claims under the will if he choose to retain 
his own property. 
The presumption being that a testator intends to dispose of only his own 
property, general words will not usually be construed so as to include a 
particular property over which he had no disposing power, unless, such 
an intention appears on the face of the will either by express wcrds or by 
necessary implication. [78 B-C] 
In the prese.nt case, th~ terms of the will indicate, 
that the testator 
thought he could revoke the settlement deed and treat it as r.on..existent, 
and that he meant to dispose of the entire estate including the properties 
which had been the subject matter of the settlement of 193'i. The respon-
dent, therefore, was put to election and could not claim the property settl· 
ed on him in- 1935, H he wished to take the benefit under the will. (76 
C-D: 77 A-C, 79 GI 
Miller v. Thurgood, 10 L.T.R. 255, Whitley v. Whitiey, 54 E.R. 1104: 
Re. Allen's Estate, Prescott v. Allen & Beaumont, (1945] 2 All. E.R. 264; 
and Re : Booker, Booker v. Booker, 54 L.T.R. 239, 242, referred to. 
72 
SUPREME COUllT llEPORTS 
[I 970] I S.C.R. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 683 of 
1966. 
Appeal by special leave from the judgment and order dated 
January 3, I 965 of the Kerala High Court in Appeal Suit No. 86 
1960. 
S. V. Gupte and A. S. Nambiar, for the appellants. 
Sarjoo Prasad, P. Kesava Pillai, M. R. K. Pillai and Lily 
Thomas, for the respondent. 
The Judgment of the Court was delive~ by 
Grover, J. This is an appeal by special leave from a judgment 
of the Kerala High Court by which the suit instituted by the res-
pondent for recovery of properties described in Schedule A of the 
plaint and for mesne profits etc. was decreed in reversal of the 
decree of the trial court, dismissing the suit. 
Uthupu Mani who died in the year I 943 had three sons. The 
eldest son Uduppu died sometime between I 929 and 1935. The 
second son Joshua is the respondent herein, the appellants being 
the third son Mani Mani and Mariamma their mother and the 
widow of Uthupu. Uthupu left some daughters also and appellant 
No. 3 Mani Achamma is one of the daughters. The controversy 
in the suit out of which the appeal has arisen was confined to a 
residential house in an area of I 0 cents in Kottayam town. This 
propert

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