Chandra Das Vs. Bibhas Chandra Das & Ors.  INSC 375 (7 May 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4345 OF
2010 (ARISING OUT OF SLP (C) NO. 7080 OF 2009) Samir Chandra Das ... Appellant
Versus Bibhas Chandra Das & Ors ... Respondents
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.
Following factual panorama would clarify the controversy herein:
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 3 expenses of maintenance
and marriage of the two daughters, if the three sons did not bear the same.
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
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
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.
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 5 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?
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.
Whether the will in question was validly executed and attested in accordance
Whether the petitioner Samir Kumar Das obtained the alleged Will by exercising
undue influence over the testator?
Whether the petitioner/plaintiff is entitled to an order of probate over the
Will in question?
other reliefs, if any is the petitioner entitled to?"
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 6 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.
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.
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
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 7 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.
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 8 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.
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 9 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
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.
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 1 (Dead) through L.Rs. & Ors. [2005 (9) SCC 375],
Krishna Kumar 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.
these rival contentions, it has to be seen whether the judgment is correct.
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 1 in the memo of appeal before the High Court. In our opinion, therefore,
the High Court should not have entertained such a question.
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
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 1 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.
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 1 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.
However, since there is no authoritative pronouncement, we are proceeding to
test the judgment.
attention was invited by Shri Jaideep Gupta, Learned Senior Counsel appearing on
behalf of the appellant, firstly to a 1 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 1
further observed that it was quite open to the executor to take a position
taken by the appellant. Further relying on a reported the statements of the
appellant were held not to be the renunciation.
decision relied upon by the Learned Senior Counsel was 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."
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
question regarding due execution of the Will was fought out.
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 1 executor ship. 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 along with Section 229 and
reading the two together, unless the executor has renounced his executor ship,
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.
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.
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 1 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
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
Pradip Kumar Ghosh, learned Senior Advocate and Shri Rauf Rahim, learned
advocate urged that we must give a purposive 1 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 Ghosh (Smt.)
(Dead) through L.Rs. & Ors. [2005 (9) SCC 375].
was entirely different on facts. It pertains to the subject of revocation of
probate. The second decision in Krishna Kumar Birla 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 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.
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/-.
..................................J. [V.S. Sirpurkar]
..................................J. [Dr. Mukundakam Sharma]
May 7, 2010.