SUPREME COURT OF INDIA
SAMIR CHANDRA DAS VS BIBHAS CHANDRA
DAS & ORS ON 7 MAY, 2010
DAS & ORS ON 7 MAY, 2010
Summarised
Judgement (Scroll for Complete Judgement)
Judgement (Scroll for Complete Judgement)
Introduction:
Challenge in this appeal is to the
Division Bench Judgment of the Calcutta High Court wherein the appeal filed by
respondent herein, namely, Bibhas Chandra Das was allowed holding that no
probate could be granted in favour of the present appellant, namely, Samir
Chandra Das.
Division Bench Judgment of the Calcutta High Court wherein the appeal filed by
respondent herein, namely, Bibhas Chandra Das was allowed holding that no
probate could be granted in favour of the present appellant, namely, Samir
Chandra Das.
Facts of the Case:
One Jogesh Chandra Das was the testator.
He expired on 13.01.1984 leaving his widow Parul Bala Das and four sons Samir
Chandra Das, Subhash Chandra Das, Bibhas Chandra Das and Anjan Das. He had
three daughters also, namely, Dipti, Jayanti and Sashwati.
He expired on 13.01.1984 leaving his widow Parul Bala Das and four sons Samir
Chandra Das, Subhash Chandra Das, Bibhas Chandra Das and Anjan Das. He had
three daughters also, namely, Dipti, Jayanti and Sashwati.
In his Will dated 14.08.1983, he
named his widow Parul Bala Das and Samir Chandra Das as the executors. By this
Will, however, Bibhas Chandra Das was not given any share. The house property
at Harish Mukherjee Road was to go to his wife Parul Bala Das with life
interest without any right to sell, mortgage etc., and after her death, to his
three sons, namely, Samir Chandra Das, Subhash Chandra Das and Anjan Das.
named his widow Parul Bala Das and Samir Chandra Das as the executors. By this
Will, however, Bibhas Chandra Das was not given any share. The house property
at Harish Mukherjee Road was to go to his wife Parul Bala Das with life
interest without any right to sell, mortgage etc., and after her death, to his
three sons, namely, Samir Chandra Das, Subhash Chandra Das and Anjan Das.
This property was given to the widow
for life and thereafter to the three sons of the testator excluding Bibhas
Chandra Das on the condition that the three sons would bear the maintenance and
marriage expenses of the two unmarried daughters for which the wife Parul Bala
Das had specific authority to sell the land even during her life time to meet
the expenses of maintenance and marriage of the two daughters, if the three
sons did not bear the same.
for life and thereafter to the three sons of the testator excluding Bibhas
Chandra Das on the condition that the three sons would bear the maintenance and
marriage expenses of the two unmarried daughters for which the wife Parul Bala
Das had specific authority to sell the land even during her life time to meet
the expenses of maintenance and marriage of the two daughters, if the three
sons did not bear the same.
As has been stated earlier, all the
legatees supported the probate application. The respondent herein opposed the
grant of probate by filing a written statement dated 05.04.1990. The evidence
was led and the Will was got proved.
legatees supported the probate application. The respondent herein opposed the
grant of probate by filing a written statement dated 05.04.1990. The evidence
was led and the Will was got proved.
In the written statement, respondent
Bibhas Chandra Das mainly opposed the probate application on the grounds that
the suit was not maintainable, Will was not genuine, Will was not legally
executed and attested, Jogesh Chandra Das did not execute the Will out of his
free will, it was brought about by undue influence and lastly that Bibhas
Chandra Das had good relations with his father Jogesh Chandra Das and,
therefore, it was unthinkable that he would be disinherited by Jogesh Chandra
Das in his Will.
Bibhas Chandra Das mainly opposed the probate application on the grounds that
the suit was not maintainable, Will was not genuine, Will was not legally
executed and attested, Jogesh Chandra Das did not execute the Will out of his
free will, it was brought about by undue influence and lastly that Bibhas
Chandra Das had good relations with his father Jogesh Chandra Das and,
therefore, it was unthinkable that he would be disinherited by Jogesh Chandra
Das in his Will.
After the evidence, the trial Court
came to the conclusion that the Will was genuine and the testator had the sound
disposing state of mind to execute the same since he was physically fit and
mentally sound and alert. It was also held that the Will in question was
validly executed and attested.
came to the conclusion that the Will was genuine and the testator had the sound
disposing state of mind to execute the same since he was physically fit and
mentally sound and alert. It was also held that the Will in question was
validly executed and attested.
It was found that the Will was free
from any undue influence much less from Samir Chandra Das. In that view, the
Court ordered grant of probate.
from any undue influence much less from Samir Chandra Das. In that view, the
Court ordered grant of probate.
Observation of Court:
An appeal was filed on various
grounds. We scanned the grounds in appeal very carefully which mainly pertained
to the grounds raised in the written statement. In the grounds raised in the
appeal, we do not find a single ground to the effect that the executor Samir
Chandra Das had, in any manner, acquired any disability or had, in any manner,
renunciated the executorship.
grounds. We scanned the grounds in appeal very carefully which mainly pertained
to the grounds raised in the written statement. In the grounds raised in the
appeal, we do not find a single ground to the effect that the executor Samir
Chandra Das had, in any manner, acquired any disability or had, in any manner,
renunciated the executorship.
It went on to further allege that if
any such document signed by the executor as is proved before the probate Court
having been knowingly signed by the executor, the probate Court will presume
renunciation of the executorship and will refuse to grant probate to such
executor. The appeal was thus allowed and the suit was dismissed.
any such document signed by the executor as is proved before the probate Court
having been knowingly signed by the executor, the probate Court will presume
renunciation of the executorship and will refuse to grant probate to such
executor. The appeal was thus allowed and the suit was dismissed.
Judgement:
In the result, the appeal succeeds. The
order of the appellate Court is set aside and the matter is remanded back to
the appellate Court for decision on merits regarding the valid execution or
attestation of the Will. The appeal succeeds with the costs of Rs.25,000/-.
order of the appellate Court is set aside and the matter is remanded back to
the appellate Court for decision on merits regarding the valid execution or
attestation of the Will. The appeal succeeds with the costs of Rs.25,000/-.
——————————————————————-
Complete Judgement
SUPREME COURT OF INDIA
SAMIR CHANDRA DAS VS BIBHAS CHANDRA
DAS & ORS ON 7 MAY, 2010
DAS & ORS ON 7 MAY, 2010
Author: V Sirpurkar
Bench: V.S. Sirpurkar, Mukundakam Sharma
“REPORTABLE”
IN
THE SUPREME COURT OF INDIA
THE SUPREME COURT OF INDIA
CIVIL
APPELLATE JURISDICTION
APPELLATE JURISDICTION
CIVIL
APPEAL NO. 4345 OF 2010
APPEAL NO. 4345 OF 2010
(ARISING
OUT OF SLP (C) NO. 7080 OF 2009)
OUT OF SLP (C) NO. 7080 OF 2009)
Samir
Chandra Das… Appellant
Chandra Das… Appellant
Versus
Bibhas
Chandra Das & Ors… Respondents
Chandra Das & Ors… Respondents
JUDGMENT
V.S.
SIRPURKAR, J.
SIRPURKAR, J.
1. Leave granted.
2. Challenge in this
appeal is to the Division Bench Judgment of the Calcutta High Court wherein the
appeal filed by respondent herein, namely, Bibhas Chandra Das was allowed
holding that no probate could be granted in favour of the present appellant, namely,
Samir Chandra Das.
appeal is to the Division Bench Judgment of the Calcutta High Court wherein the
appeal filed by respondent herein, namely, Bibhas Chandra Das was allowed
holding that no probate could be granted in favour of the present appellant, namely,
Samir Chandra Das.
3. Following factual
panorama would clarify the controversy herein:
panorama would clarify the controversy herein:
One Jogesh Chandra Das
was the testator. He expired on 13.01.1984 leaving his widow Parul Bala Das and
four sons Samir Chandra Das, Subhash Chandra Das, Bibhas Chandra Das and Anjan
Das. He had three daughters also, namely, Dipti, Jayanti and Sashwati. In his
Will dated 14.08.1983, he named his widow Parul Bala Das and Samir Chandra Das
as the executors. By this Will, however, Bibhas Chandra Das was not given any share.
The house property at Harish Mukherjee Road was to go to his wife Parul Bala
Das with life interest without any right to sell, mortgage etc., and after her
death, to his three sons, namely, Samir Chandra Das, Subhash Chandra Das and
Anjan Das. He had also desired that the right of residence would be available
to his two unmarried daughters, namely, Jayanti and Sashwati. It was also
mentioned in the Will that the testator had purchased a piece of land in the
name of his wife and second daughter who was polio affected. This property was
given to the widow for life and thereafter to the three sons of the testator
excluding Bibhas Chandra Das on the condition that the three sons would bear
the maintenance and marriage expenses of the two unmarried daughters for which
the wife Parul Bala Das had specific authority to sell the land even during her
life time to meet the expenses of maintenance and marriage of the two
daughters, if the three sons did not bear the same.
was the testator. He expired on 13.01.1984 leaving his widow Parul Bala Das and
four sons Samir Chandra Das, Subhash Chandra Das, Bibhas Chandra Das and Anjan
Das. He had three daughters also, namely, Dipti, Jayanti and Sashwati. In his
Will dated 14.08.1983, he named his widow Parul Bala Das and Samir Chandra Das
as the executors. By this Will, however, Bibhas Chandra Das was not given any share.
The house property at Harish Mukherjee Road was to go to his wife Parul Bala
Das with life interest without any right to sell, mortgage etc., and after her
death, to his three sons, namely, Samir Chandra Das, Subhash Chandra Das and
Anjan Das. He had also desired that the right of residence would be available
to his two unmarried daughters, namely, Jayanti and Sashwati. It was also
mentioned in the Will that the testator had purchased a piece of land in the
name of his wife and second daughter who was polio affected. This property was
given to the widow for life and thereafter to the three sons of the testator
excluding Bibhas Chandra Das on the condition that the three sons would bear
the maintenance and marriage expenses of the two unmarried daughters for which
the wife Parul Bala Das had specific authority to sell the land even during her
life time to meet the expenses of maintenance and marriage of the two
daughters, if the three sons did not bear the same.
4. Two sale deeds were
executed by Parul Bala Das and Jayanti whereby 5 cottahs of land out of 7
cottahs purchased earlier by the testator in the `benami’ of Parul Bala Das and
Jayanti was sold on 10.10.1983. It is to be mentioned that these sale deeds
were countersigned by Jogesh Chandra Das as also Samir Chandra Das. The
remaining two cottahs of land was sold by Parul and Jayanti by sale deed dated
12.02.1988. The sale proceeds are alleged to have been used for running the
Indian Oil Corporation Gas Dealership for Jayanti and Sashwati. On 17.07.1984
an application came to be made for probate by Samir Chandra Das and Parul Bala
Das. However, during the pendency of the probate proceedings, Parul Bala Das
expired on 18.01.1990. This probate application was supported by all excepting
Bibhas Chandra Das, the respondent herein. Since the probate became
contentious, the application for probate was refiled on 22.01.1986 and the
proceedings were renumbered as Original Suit No. 6 of 1986.
executed by Parul Bala Das and Jayanti whereby 5 cottahs of land out of 7
cottahs purchased earlier by the testator in the `benami’ of Parul Bala Das and
Jayanti was sold on 10.10.1983. It is to be mentioned that these sale deeds
were countersigned by Jogesh Chandra Das as also Samir Chandra Das. The
remaining two cottahs of land was sold by Parul and Jayanti by sale deed dated
12.02.1988. The sale proceeds are alleged to have been used for running the
Indian Oil Corporation Gas Dealership for Jayanti and Sashwati. On 17.07.1984
an application came to be made for probate by Samir Chandra Das and Parul Bala
Das. However, during the pendency of the probate proceedings, Parul Bala Das
expired on 18.01.1990. This probate application was supported by all excepting
Bibhas Chandra Das, the respondent herein. Since the probate became
contentious, the application for probate was refiled on 22.01.1986 and the
proceedings were renumbered as Original Suit No. 6 of 1986.
5. As has been stated
earlier, all the legatees supported the probate application. However, Bibhas
Chandra Das opposed the same. During the pendency, as has already been stated,
on 12.02.1988, Parul Bala Das along with her second daughter Jayanti had sold
the remaining two cottahs approximately of the earlier mentioned land. On this,
the appellant Samir Chandra Das had signed as a witness. Smt. Parul Bala Das
died on 18.01.1990. The respondent herein opposed the grant of probate by
filing a written statement dated 05.04.1990. The evidence was led and the Will
was got proved.
earlier, all the legatees supported the probate application. However, Bibhas
Chandra Das opposed the same. During the pendency, as has already been stated,
on 12.02.1988, Parul Bala Das along with her second daughter Jayanti had sold
the remaining two cottahs approximately of the earlier mentioned land. On this,
the appellant Samir Chandra Das had signed as a witness. Smt. Parul Bala Das
died on 18.01.1990. The respondent herein opposed the grant of probate by
filing a written statement dated 05.04.1990. The evidence was led and the Will
was got proved.
6. In the written
statement, respondent Bibhas Chandra Das mainly opposed the probate application
on the grounds that the suit was not maintainable, Will was not genuine, Will
was not legally executed and attested, Jogesh Chandra Das did not execute the Will
out of his free will, it was brought about by undue influence and lastly that
Bibhas Chandra Das had good relations with his father Jogesh Chandra Das and,
therefore, it was unthinkable that he would be disinherited by Jogesh Chandra
Das in his Will. It was also alleged that since the executer Samir Chandra Das
was on inimical terms with Bibhas Chandra Das, he had exercised undue influence
on his father. By amendment it was further alleged that the Will was not out of
the free will of Jogesh Chandra Das who was very affectionate with defendant
Bibhas Chandra Das and he was not the prodigal son. In short, the defendant
never raised the plea regarding any acquired disability by renunciation as
executor on the part of Samir Chandra Das to apply for probate. After the
evidence was led, the trial Court framed the following six issues:
statement, respondent Bibhas Chandra Das mainly opposed the probate application
on the grounds that the suit was not maintainable, Will was not genuine, Will
was not legally executed and attested, Jogesh Chandra Das did not execute the Will
out of his free will, it was brought about by undue influence and lastly that
Bibhas Chandra Das had good relations with his father Jogesh Chandra Das and,
therefore, it was unthinkable that he would be disinherited by Jogesh Chandra
Das in his Will. It was also alleged that since the executer Samir Chandra Das
was on inimical terms with Bibhas Chandra Das, he had exercised undue influence
on his father. By amendment it was further alleged that the Will was not out of
the free will of Jogesh Chandra Das who was very affectionate with defendant
Bibhas Chandra Das and he was not the prodigal son. In short, the defendant
never raised the plea regarding any acquired disability by renunciation as
executor on the part of Samir Chandra Das to apply for probate. After the
evidence was led, the trial Court framed the following six issues:
1. Is the application
for probate maintainable in law and proper form?
for probate maintainable in law and proper form?
2. Had the testator
sound disposing state of mind to execute the Will i.e. whether the testator was
physically fit and mentally sound and alert to execute the will.
sound disposing state of mind to execute the Will i.e. whether the testator was
physically fit and mentally sound and alert to execute the will.
3. Whether the will in
question was validly executed and attested in accordance with law?
question was validly executed and attested in accordance with law?
4. Whether the
petitioner Samir Kumar Das obtained the alleged Will by exercising undue
influence over the testator?
petitioner Samir Kumar Das obtained the alleged Will by exercising undue
influence over the testator?
5. Whether the
petitioner/plaintiff is entitled to an order of probate over the Will in
question?
petitioner/plaintiff is entitled to an order of probate over the Will in
question?
6. What other reliefs,
if any is the petitioner entitled to?”
if any is the petitioner entitled to?”
7. After the evidence,
the trial Court came to the conclusion that the Will was genuine and the
testator had the sound disposing state of mind to execute the same since he was
physically fit and mentally sound and alert. It was also held that the Will in
question was validly executed and attested. It was found that the Will was free
from any undue influence much less from Samir Chandra Das. In that view, the
Court ordered grant of probate.
the trial Court came to the conclusion that the Will was genuine and the
testator had the sound disposing state of mind to execute the same since he was
physically fit and mentally sound and alert. It was also held that the Will in
question was validly executed and attested. It was found that the Will was free
from any undue influence much less from Samir Chandra Das. In that view, the
Court ordered grant of probate.
8. An appeal was filed
on various grounds. We scanned the grounds in appeal very carefully which
mainly pertained to the grounds raised in the written statement. In the grounds
raised in the appeal, we do not find a single ground to the effect that the
executor Samir Chandra Das had, in any manner, acquired any disability or had,
in any manner, renunciated the executorship.
on various grounds. We scanned the grounds in appeal very carefully which
mainly pertained to the grounds raised in the written statement. In the grounds
raised in the appeal, we do not find a single ground to the effect that the
executor Samir Chandra Das had, in any manner, acquired any disability or had,
in any manner, renunciated the executorship.
9. The appellate Court,
however, did not consider the matter on merits as is clear in the penultimate
paragraph of the judgment. The Court, however, wrote a finding that the
appellant herein having put his signatures as a witness along with his mother
on the sale deed dated 12.2.1988 in effect renunciated his position as an
executor. The appellate Court also wrote a finding that both the executors
having espoused an interest over the subject matter of the Will which was
adverse to the interest of the testator, no probate could be granted in their
favour since by their conduct they had renounced the executorship.
however, did not consider the matter on merits as is clear in the penultimate
paragraph of the judgment. The Court, however, wrote a finding that the
appellant herein having put his signatures as a witness along with his mother
on the sale deed dated 12.2.1988 in effect renunciated his position as an
executor. The appellate Court also wrote a finding that both the executors
having espoused an interest over the subject matter of the Will which was
adverse to the interest of the testator, no probate could be granted in their
favour since by their conduct they had renounced the executorship.
The
appellate Court also made a reference to Sections 222, 223 and 230 of the
Indian Succession Act and came to the conclusion that though Samir Chandra Das
had not expressly renounced the executorship, yet he had asserted title which
is hostile to that of the testator and/or acted contrary to the directions
contained in the Will and/or had supported such claim or act or has even orally
asserted before the Court any right adverse to that of the testator and
supported such claim and such conduct of the executor amounted to “implied
renunciation” of the executorship. It went on to further allege that if
any such document signed by the executor as is proved before the probate Court
having been knowingly signed by the executor, the probate Court will presume
renunciation of the executorship and will refuse to grant probate to such
executor. The appeal was thus allowed and the suit was dismissed.
appellate Court also made a reference to Sections 222, 223 and 230 of the
Indian Succession Act and came to the conclusion that though Samir Chandra Das
had not expressly renounced the executorship, yet he had asserted title which
is hostile to that of the testator and/or acted contrary to the directions
contained in the Will and/or had supported such claim or act or has even orally
asserted before the Court any right adverse to that of the testator and
supported such claim and such conduct of the executor amounted to “implied
renunciation” of the executorship. It went on to further allege that if
any such document signed by the executor as is proved before the probate Court
having been knowingly signed by the executor, the probate Court will presume
renunciation of the executorship and will refuse to grant probate to such
executor. The appeal was thus allowed and the suit was dismissed.
10. It is this judgment
which has fallen for our consideration in this appeal. Shri Jaydeep Gupta,
Learned Senior Advocate questions the correctness of this judgment on various
grounds. He firstly pointed out that this was not at all a case of
renunciation. Learned Counsel pointed out that the renunciation can be only
under Section 230 of the Act and such renunciation if made orally in the
presence of a Judge, it may amount to a renunciation. As such the Learned Counsel
pointed out that such renunciation has to be in writing duly signed by the
person renouncing. Under these two conditions, the person renouncing is
precluded from applying for probate of the Will in which he is appointed as an
executor. He argued that the concept of “implied renunciation” is not
known to the law or is not to be found anywhere in the Indian Succession Act.
Learned counsel, therefore, argued that when the statute mandates through a
specific provision the manner and the conditions for the renunciation, the
Court could not have found out a different way of renunciation. Learned counsel
argued that when the statute provides for the manner and the conditions for
renunciation then the renunciation could be ordered only on the fulfillment of the
conditions and not in any other manner. Learned counsel further argued that
even on the facts the Court erred in holding that in putting the signatures as
a witness to the sale deed of the property covered by the Will it can be said
that the executor had acted hostile to the testator or had acted contrary to
the directions contained in the Will.
which has fallen for our consideration in this appeal. Shri Jaydeep Gupta,
Learned Senior Advocate questions the correctness of this judgment on various
grounds. He firstly pointed out that this was not at all a case of
renunciation. Learned Counsel pointed out that the renunciation can be only
under Section 230 of the Act and such renunciation if made orally in the
presence of a Judge, it may amount to a renunciation. As such the Learned Counsel
pointed out that such renunciation has to be in writing duly signed by the
person renouncing. Under these two conditions, the person renouncing is
precluded from applying for probate of the Will in which he is appointed as an
executor. He argued that the concept of “implied renunciation” is not
known to the law or is not to be found anywhere in the Indian Succession Act.
Learned counsel, therefore, argued that when the statute mandates through a
specific provision the manner and the conditions for the renunciation, the
Court could not have found out a different way of renunciation. Learned counsel
argued that when the statute provides for the manner and the conditions for
renunciation then the renunciation could be ordered only on the fulfillment of the
conditions and not in any other manner. Learned counsel further argued that
even on the facts the Court erred in holding that in putting the signatures as
a witness to the sale deed of the property covered by the Will it can be said
that the executor had acted hostile to the testator or had acted contrary to
the directions contained in the Will.
According to him, ultimately that
property which was sold was to go under the Will to the daughters and the wife
of the legatee Parul Bala, with rights to sell the property for the welfare of
the two unmarried daughters. It was pointed out by learned counsel that in the
two sale deeds dated 10.10.1983 even the testator had put his signatures along
with the present executor Samir Chandra Das, though the Will had already come
into existence on that date. According to the learned counsel, those two sale
deeds, therefore, were absolutely innocuous. In so far as the third sale is
concerned, the property was to go to Parul Bala and her daughters and further,
Parul Bala had the authority under the Will to dispose of the property for the
welfare and maintenance of the two daughters. Learned counsel was at pains to
point out that the gas dealership of the IOC was arranged from the
consideration in the name of the two unmarried daughters. He pointed out that,
therefore, there was no question of the executor having acted hostile to the
interests of the testator or even for that matter the other legatees who had no
concern with such property. Learned counsel, therefore, argued that even on
merits there was no question of such a finding.
property which was sold was to go under the Will to the daughters and the wife
of the legatee Parul Bala, with rights to sell the property for the welfare of
the two unmarried daughters. It was pointed out by learned counsel that in the
two sale deeds dated 10.10.1983 even the testator had put his signatures along
with the present executor Samir Chandra Das, though the Will had already come
into existence on that date. According to the learned counsel, those two sale
deeds, therefore, were absolutely innocuous. In so far as the third sale is
concerned, the property was to go to Parul Bala and her daughters and further,
Parul Bala had the authority under the Will to dispose of the property for the
welfare and maintenance of the two daughters. Learned counsel was at pains to
point out that the gas dealership of the IOC was arranged from the
consideration in the name of the two unmarried daughters. He pointed out that,
therefore, there was no question of the executor having acted hostile to the
interests of the testator or even for that matter the other legatees who had no
concern with such property. Learned counsel, therefore, argued that even on
merits there was no question of such a finding.
11. As against this,
Shri Pradip Kumar Ghosh, learned Senior Advocate and Shri Rauf Rahim, learned
advocate argued that the judgment was correct. Three decisions were relied upon
by Shri Ghosh, being Crystal Developers Vs. Asha Lata Ghosh (Smt.) (Dead)
through L.Rs. & Ors. [2005 (9) SCC 375], Krishna Kumar Birla Vs.
Rajendra Singh Lodha & Ors. [2008 (4) SCC 300] and Anil Kak Vs. Kumari
Sharada Raje & Ors. [2008 (7) SCC 695]. Shri Ghosh also argued that we
must give purposive interpretation to Section 230 of the Indian Succession Act.
He also argued that though Section 223 specifically provides for the
disqualification of the persons to whom the probate could be granted, we must
read that Section along with Section 230 to hold that there could be a deemed
renunciation and the Court could under the circumstances deny the probate to
such an executor who had in fact impliedly renounced his character as an
executor.
Shri Pradip Kumar Ghosh, learned Senior Advocate and Shri Rauf Rahim, learned
advocate argued that the judgment was correct. Three decisions were relied upon
by Shri Ghosh, being Crystal Developers Vs. Asha Lata Ghosh (Smt.) (Dead)
through L.Rs. & Ors. [2005 (9) SCC 375], Krishna Kumar Birla Vs.
Rajendra Singh Lodha & Ors. [2008 (4) SCC 300] and Anil Kak Vs. Kumari
Sharada Raje & Ors. [2008 (7) SCC 695]. Shri Ghosh also argued that we
must give purposive interpretation to Section 230 of the Indian Succession Act.
He also argued that though Section 223 specifically provides for the
disqualification of the persons to whom the probate could be granted, we must
read that Section along with Section 230 to hold that there could be a deemed
renunciation and the Court could under the circumstances deny the probate to
such an executor who had in fact impliedly renounced his character as an
executor.
12. On these rival
contentions, it has to be seen whether the judgment is correct.
contentions, it has to be seen whether the judgment is correct.
13. In the first place,
we must observe that the appellate Court should not have allowed this question
to be argued as there was no plea raised in the written statement in support of
the theory of renunciation by widow Parul Bala and the present executor Samir
Chandra Das. This question was not argued before the Trial Court nor was it
raised by way of a written statement nor was it raised even in the memo of
appeal before the High Court. In our opinion, therefore, the High Court should
not have entertained such a question.
we must observe that the appellate Court should not have allowed this question
to be argued as there was no plea raised in the written statement in support of
the theory of renunciation by widow Parul Bala and the present executor Samir
Chandra Das. This question was not argued before the Trial Court nor was it
raised by way of a written statement nor was it raised even in the memo of
appeal before the High Court. In our opinion, therefore, the High Court should
not have entertained such a question.
14. On merits, it was
the case of respondent herein that in the three sale deeds, two of which were
executed before the death of the testator and one after his demise during the pendency
of the probate proceedings the properties were claimed to be the self acquired
properties of the widow and the second daughter. It was argued that, therefore,
the widow who was an executor was claiming that this property never belonged to
the testator. The further case was that since the surviving executor Samir
Chandra Das had put his signatures as a witness to the sale deeds, he also must
be deemed to have accepted the recitals in the sale deeds to the effect that it
was a self acquired property of the widow and the second daughter thereby
disputing the title of the testator.
the case of respondent herein that in the three sale deeds, two of which were
executed before the death of the testator and one after his demise during the pendency
of the probate proceedings the properties were claimed to be the self acquired
properties of the widow and the second daughter. It was argued that, therefore,
the widow who was an executor was claiming that this property never belonged to
the testator. The further case was that since the surviving executor Samir
Chandra Das had put his signatures as a witness to the sale deeds, he also must
be deemed to have accepted the recitals in the sale deeds to the effect that it
was a self acquired property of the widow and the second daughter thereby
disputing the title of the testator.
15. The argument is
absolutely incorrect, firstly, for the simple reason that at the time of first
two sale deeds, even the testator had put his signatures as a witness and as he
was alive on that day, the Will was irrelevant. Therefore, those two sale deeds
will naturally go out of consideration. Probably realizing this, the High Court
made a stray remark in the judgment to the effect that “one of it was
executed during the pendency of the probate application”. Now, if the
earlier two sale deeds which were dated 10.10.1983 and were executed during the
lifetime of the testator and he himself had acted as a witness, there was no
question of any rival or hostile title being set up by Parul Bala and further
by the present appellant who put his signatures as a witness along with his
father, the testator on the sale deeds dated 10.10.1983. It cannot be presumed
that there was any idea of setting up a hostile title. The remaining property
which was sold on 12.02.1988 i.e. during the pendency of the probate
application was admittedly a part of the aforementioned property, part of which
was sold on 10.10.1983 by two sale deeds. Basically, on 10.10.1983, the Will
had never become effective as the testator was alive. Therefore, the deduction
of the High Court that Parul Bala Das and Samir Chandra Das had taken a stance
against the testator is clearly faulty. On that day, this position was
absolutely not available. This is apart from the fact that on that day, on
those two sale deeds dated 10.10.1983, even the testator had signed as a
witness. Insofar as the subsequent sale deed dated 12.02.1988 is concerned,
also there will be no question of taking any hostile stance against the
testator because the property which was sold was clearly given away in the Will
in favour of Parul Bala Das and her daughters, and Parul Bala Das also was
given the right to sell the property for the maintenance and marriage expenses
of her two unmarried daughters. Therefore, at least on that day, when the sale
deed was executed, Parul Bala Das and her two daughters had inherited the
property under the Will, which they sold and they were undoubtedly the owners
of the properties. We must, therefore, hold that the High Court erred in taking
the stand that the executor had taken a hostile stance against the testator.
Once this position on facts is obtained, there is no question of further
considering the correctness of the probate holding that there was an
“implied renunciation” by the appellant herein.
absolutely incorrect, firstly, for the simple reason that at the time of first
two sale deeds, even the testator had put his signatures as a witness and as he
was alive on that day, the Will was irrelevant. Therefore, those two sale deeds
will naturally go out of consideration. Probably realizing this, the High Court
made a stray remark in the judgment to the effect that “one of it was
executed during the pendency of the probate application”. Now, if the
earlier two sale deeds which were dated 10.10.1983 and were executed during the
lifetime of the testator and he himself had acted as a witness, there was no
question of any rival or hostile title being set up by Parul Bala and further
by the present appellant who put his signatures as a witness along with his
father, the testator on the sale deeds dated 10.10.1983. It cannot be presumed
that there was any idea of setting up a hostile title. The remaining property
which was sold on 12.02.1988 i.e. during the pendency of the probate
application was admittedly a part of the aforementioned property, part of which
was sold on 10.10.1983 by two sale deeds. Basically, on 10.10.1983, the Will
had never become effective as the testator was alive. Therefore, the deduction
of the High Court that Parul Bala Das and Samir Chandra Das had taken a stance
against the testator is clearly faulty. On that day, this position was
absolutely not available. This is apart from the fact that on that day, on
those two sale deeds dated 10.10.1983, even the testator had signed as a
witness. Insofar as the subsequent sale deed dated 12.02.1988 is concerned,
also there will be no question of taking any hostile stance against the
testator because the property which was sold was clearly given away in the Will
in favour of Parul Bala Das and her daughters, and Parul Bala Das also was
given the right to sell the property for the maintenance and marriage expenses
of her two unmarried daughters. Therefore, at least on that day, when the sale
deed was executed, Parul Bala Das and her two daughters had inherited the
property under the Will, which they sold and they were undoubtedly the owners
of the properties. We must, therefore, hold that the High Court erred in taking
the stand that the executor had taken a hostile stance against the testator.
Once this position on facts is obtained, there is no question of further
considering the correctness of the probate holding that there was an
“implied renunciation” by the appellant herein.
16. However, since
there is no authoritative pronouncement, we are proceeding to test the
judgment.
there is no authoritative pronouncement, we are proceeding to test the
judgment.
17. Our attention was
invited by Shri Jaideep Gupta, Learned Senior Counsel appearing on behalf of
the appellant, firstly to a decision of the Madras High Court in (Thoppai)
Venkataramier Vs. A Govindarayalier [AIR 1926 Mad. 605].
invited by Shri Jaideep Gupta, Learned Senior Counsel appearing on behalf of
the appellant, firstly to a decision of the Madras High Court in (Thoppai)
Venkataramier Vs. A Govindarayalier [AIR 1926 Mad. 605].
In that case, the District Judge had refused
to grant the probate to the appellant. The appellant was one of the two
executors. The Will was found to be genuine and it was found that prior to the
probate proceedings, the appellant had indulged in wild statements that the
Will was a forgery and he was never appointed as executor and that testator had
never signed the Will. The appellant had also stated that his (appellant’s)
attestation on the Will itself was obtained by fraud. Relying on a decision in
In the goods of Manick Lal Seal [(1908) 35 Cal. 156], the Madras High Court
observed that it was open to the executor to openly assert outside the Court
that he was renouncing his executorship, but it was by his statement in the
Court that he will stand or fall. It was further observed that the appellant’s
statement in the Court that he did not admit the execution and validation of
the Will or that it was a spurious document or that he never put his signatures
to the Will and his attestation thereto was obtained by fraud, would be of no
consequence in view of his end statement that if the Court considered the Will
genuine and was prepared to grant probate, he was willing to act as the
executor. The Court did not consider whether such a statement would amount to
renunciation. The Court further observed that it was quite open to the executor
to take a position taken by the appellant. Further relying on a reported
decision in Sarojini Dasi Vs. Rajalakshmi Dasi [AIR 1920 Cal. 874], the
statements of the appellant were held not to be the renunciation. The other
decision relied upon by the Learned Senior Counsel was Smt. Sailabala Dasi Vs.
Baidya Nath Rakshit [1932 CWN 729], where the Calcutta High Court specifically
held that:-
to grant the probate to the appellant. The appellant was one of the two
executors. The Will was found to be genuine and it was found that prior to the
probate proceedings, the appellant had indulged in wild statements that the
Will was a forgery and he was never appointed as executor and that testator had
never signed the Will. The appellant had also stated that his (appellant’s)
attestation on the Will itself was obtained by fraud. Relying on a decision in
In the goods of Manick Lal Seal [(1908) 35 Cal. 156], the Madras High Court
observed that it was open to the executor to openly assert outside the Court
that he was renouncing his executorship, but it was by his statement in the
Court that he will stand or fall. It was further observed that the appellant’s
statement in the Court that he did not admit the execution and validation of
the Will or that it was a spurious document or that he never put his signatures
to the Will and his attestation thereto was obtained by fraud, would be of no
consequence in view of his end statement that if the Court considered the Will
genuine and was prepared to grant probate, he was willing to act as the
executor. The Court did not consider whether such a statement would amount to
renunciation. The Court further observed that it was quite open to the executor
to take a position taken by the appellant. Further relying on a reported
decision in Sarojini Dasi Vs. Rajalakshmi Dasi [AIR 1920 Cal. 874], the
statements of the appellant were held not to be the renunciation. The other
decision relied upon by the Learned Senior Counsel was Smt. Sailabala Dasi Vs.
Baidya Nath Rakshit [1932 CWN 729], where the Calcutta High Court specifically
held that:-
“disputing the
Will by an executor is no ground for which the Court is authorized to refuse
grant of probate to such executor when, later, he asks for it.”
Will by an executor is no ground for which the Court is authorized to refuse
grant of probate to such executor when, later, he asks for it.”
In this decision also,
the appellant was joined as the opposite party as she, though was a named
executor, did not apply for probate. She also filed a petition, but she did not
admit the Will or the proper execution and attestation thereof. However, she
had stated that if the Will was proved to have been properly executed and
attested, she was willing and claimed to get the probate as executrix. The
question regarding due execution of the Will was fought out. Even in her
evidence, the appellant had disputed the genuineness of the Will. However, the
Will was held to be a valid, duly executed and attested Will. On this ground,
she was refused the probate. Even the appellate Court had taken a view that she
had renounced her executorship. It was held by the appellate Court that after
repudiating the Will, the person could not turn around and say that he was
entitled to probate. Referring to Section 230 of the Indian Succession Act, it
was held that even under these circumstances, Section 230 was not applicable
and the said Section was bound to be read alongwith Section 229 and reading the
two together, unless the executor has renounced his executorship, the probate
cannot be refused to him/her. It was clarified that Section 230 refers to the
manner of renunciation in such a case. It was held that even under the
circumstances of the case, the appellant was entitled for probate. When we
consider the position obtained in the present case, one thing is clear that the
situation here was nowhere comparable to the one obtained in the above two decisions.
In fact, there was not even a trace of renunciation on the part of the
appellant herein, not even remotely.
the appellant was joined as the opposite party as she, though was a named
executor, did not apply for probate. She also filed a petition, but she did not
admit the Will or the proper execution and attestation thereof. However, she
had stated that if the Will was proved to have been properly executed and
attested, she was willing and claimed to get the probate as executrix. The
question regarding due execution of the Will was fought out. Even in her
evidence, the appellant had disputed the genuineness of the Will. However, the
Will was held to be a valid, duly executed and attested Will. On this ground,
she was refused the probate. Even the appellate Court had taken a view that she
had renounced her executorship. It was held by the appellate Court that after
repudiating the Will, the person could not turn around and say that he was
entitled to probate. Referring to Section 230 of the Indian Succession Act, it
was held that even under these circumstances, Section 230 was not applicable
and the said Section was bound to be read alongwith Section 229 and reading the
two together, unless the executor has renounced his executorship, the probate
cannot be refused to him/her. It was clarified that Section 230 refers to the
manner of renunciation in such a case. It was held that even under the
circumstances of the case, the appellant was entitled for probate. When we
consider the position obtained in the present case, one thing is clear that the
situation here was nowhere comparable to the one obtained in the above two decisions.
In fact, there was not even a trace of renunciation on the part of the
appellant herein, not even remotely.
18. We have already
explained the factual situation and in our opinion, the High Court completely
misguided itself in stretching the theory of renunciation to its illogical end.
The provision of Section 230 lays down specifically as to how the executor
renounces his character as an executor. That is certainly not to be found here
and when the law requires a thing to be done in a particular manner, it cannot
be done in any other manner. The concept of deemed renunciation, as found by
the High Court, does not appeal to us, much less on the factual background of
the present case. There cannot be a deemed renunciation. However, we must
hasten to add that we do not even for a moment say that the concerned Court has
no power to deny the probate for good and valid reasons. However, in this case,
we cannot subscribe to the opinion expressed by the High Court that there was a
renunciation on the part of the appellant. In a proper case, the Court
considering the probate application may, for good reasons, find it not possible
to grant the probate to executor, but in this case that has not happened.
Instead, the High Court wrote a finding that the executor had renounced himself
and he is deemed to have renounced on account of the so-called hostile stand
taken by him. We do not agree that there was any hostile stand. We do not
further agree that there was any such renunciation or deemed renunciation. We
further do not agree that there can be any concept of deemed renunciation.
explained the factual situation and in our opinion, the High Court completely
misguided itself in stretching the theory of renunciation to its illogical end.
The provision of Section 230 lays down specifically as to how the executor
renounces his character as an executor. That is certainly not to be found here
and when the law requires a thing to be done in a particular manner, it cannot
be done in any other manner. The concept of deemed renunciation, as found by
the High Court, does not appeal to us, much less on the factual background of
the present case. There cannot be a deemed renunciation. However, we must
hasten to add that we do not even for a moment say that the concerned Court has
no power to deny the probate for good and valid reasons. However, in this case,
we cannot subscribe to the opinion expressed by the High Court that there was a
renunciation on the part of the appellant. In a proper case, the Court
considering the probate application may, for good reasons, find it not possible
to grant the probate to executor, but in this case that has not happened.
Instead, the High Court wrote a finding that the executor had renounced himself
and he is deemed to have renounced on account of the so-called hostile stand
taken by him. We do not agree that there was any hostile stand. We do not
further agree that there was any such renunciation or deemed renunciation. We
further do not agree that there can be any concept of deemed renunciation.
19. Shri Pradip Kumar
Ghosh, learned Senior Advocate and Shri Rauf Rahim, learned advocate urged that
we must give a purposive interpretation to Section 230, so as to find that
there can be a deemed renunciation in terms of that Section. We do not agree. The
language of the Section is too clear to be tinkered with. There has to be a
scrupulous adherence to the Section before an executor is refused the probate
under Section 230. The Learned Advocates then tried to rely on a decision in
Crystal Developers Vs. Asha Lata Ghosh (Smt.) (Dead) through L.Rs. &
Ors. [2005 (9) SCC 375]. This case was entirely different on facts. It pertains
to the subject of revocation of probate. The second decision in Krishna Kumar
Birla Vs. Rajendra Singh Lodha & Ors. [2008 (4) SCC 300] is also of no
consequence. It is basically regarding the subject of caveatable interest and
mainly turns on the fact as to why the appellant could not be said to have a
caveatable interest. It does not help the appellant in the present controversy
in any manner. The third decision relied on by the learned Advocates was Anil
Kak Vs. Kumari Sharada Raje & Ors. [2008 (7) SCC 695] to which one of
us (Hon’ble Sirpurkar, J.) was a party. That was again the decision rejecting
the two applications for grant of probate and letter of administration. We do
not think that the controversy involved in the present appeal is even distantly
touched by this case.
Ghosh, learned Senior Advocate and Shri Rauf Rahim, learned advocate urged that
we must give a purposive interpretation to Section 230, so as to find that
there can be a deemed renunciation in terms of that Section. We do not agree. The
language of the Section is too clear to be tinkered with. There has to be a
scrupulous adherence to the Section before an executor is refused the probate
under Section 230. The Learned Advocates then tried to rely on a decision in
Crystal Developers Vs. Asha Lata Ghosh (Smt.) (Dead) through L.Rs. &
Ors. [2005 (9) SCC 375]. This case was entirely different on facts. It pertains
to the subject of revocation of probate. The second decision in Krishna Kumar
Birla Vs. Rajendra Singh Lodha & Ors. [2008 (4) SCC 300] is also of no
consequence. It is basically regarding the subject of caveatable interest and
mainly turns on the fact as to why the appellant could not be said to have a
caveatable interest. It does not help the appellant in the present controversy
in any manner. The third decision relied on by the learned Advocates was Anil
Kak Vs. Kumari Sharada Raje & Ors. [2008 (7) SCC 695] to which one of
us (Hon’ble Sirpurkar, J.) was a party. That was again the decision rejecting
the two applications for grant of probate and letter of administration. We do
not think that the controversy involved in the present appeal is even distantly
touched by this case.
20. In the result, the
appeal succeeds. The order of the appellate Court is set aside and the matter
is remanded back to the appellate Court for decision on merits regarding the
valid execution or attestation of the Will. The appeal succeeds with the costs
of Rs.25,000/-.
appeal succeeds. The order of the appellate Court is set aside and the matter
is remanded back to the appellate Court for decision on merits regarding the
valid execution or attestation of the Will. The appeal succeeds with the costs
of Rs.25,000/-.
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AS – 23122019