[ Narayani & Anr. v. Sreedharan, AIR 2012 Kerala 72]
The issue arose for consideration in the matter as to whether the document in question was a will or a settlement. The Court observed that if by execution of the document right is transferred in praesenti, it can only be treated as a settlement deed.
On the other hand, if no right is transferred in praesenti and by execution of deed, provision is made only for transfer of the right, after the death of either or both of the executants, it could only be treated as a will. Where two executants of the deed who were husband and wife and it was provided in the deed that it was jointly agreed by the executants that they shall jointly possess the properties and enjoy them jointly during their lifetime and that, on the death of any one of them the properties are still available, then the surviving executant shall possess the same absolutely with the right of alienation and that if on the death of the surviving executant, the properties are available, they shall go to their children, the deed was a will and not settlement deed. Though the deed provided that the properties shall ultimately go to the children, there was no transfer of right, in praesenti in their favour. So also though it was provided that on the death of one of the executants, properties shall go to the surviving executant, it is subject to the availability of the properties on the death of either of the executants. There was no transfer of the right of one of the executants, during his/her life time to the other.
Thus, there was no transfer of any right in praesenti on the other executants. The Court further observed that a joint will is a single testamentary instrument constituting or containing the will of two or more persons based on an agreement to make a conjoint will. Two or more persons can make a joint will, which, if properly executed by each so far as his property is concerned, is as much his will. That will comes into effect on his death. Joint wills are revocable at any time by either of the testators during the life of either or after the death of one of them by the survivor. If the joint will is executed in pursuance of an agreement or contract between the executants to dispose of their property to each other or to a third person in a particular mode or manner and reciprocal in their provisions, it is a joint and mutual will. In a mutual will there is an agreement that neither of the testator shall have power to revoke it.
The surviving testator receives benefits from the document under the mutual will and hence the survivor is not entitled to revoke the will after the death of the testator as the deceased had agreed in pursuance of the agreement and hope and trust that the will be adhered to by the survivor. As the will takes effect only on the death of the testator, both the testators during their lifetime together can revoke or modify the mutual will. But on the death of one of the testators, the surviving testator is not competent to revoke the mutual will.
Where recitals in the will showed that though it was executed jointly by the husband and wife, there was no mutual agreement between them to divest their individual right and to vest his or her right in the other and it only provides that during their lifetime the properties shall be jointly possessed and enjoyed together and that on the death of one of the executants, if the properties are available, they shall go to the surviving executant to be enjoyed absolutely with even the power of alienation, it would be a joint will and not joint and mutual will, because it was clear that there was no divesting of the rights of the other executant and vesting of that right on first executant. It was more so as the will did not provide that executants have no right of revocation.
