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PETITIONER: BHAGWANI KUER (DEAD) & ORS.

       Vs.

RESPONDENT: TAPESWARI KUER (DEAD) & ORS.

DATE OF JUDGMENT20/08/1973

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH MATHEW, KUTTYIL KURIEN

CITATION:  1973 AIR 2583            1974 SCR  (1) 430  1973 SCC  (2) 646

ACT: Indian Succession Act, Sec. 141 : "Manifests an intention to act as executor" What facts constitute  manifestation-Legacy conferred on the executor of a will.

HEADNOTE: A  made  a will giving life interest in  his  properties  to three  daughters-in-law’.   After  the death  of  the  three ladies,  half  share  of  the property  was  to  go  to  two daughters of one of the daughters-in-law and the other  half to one S, collaterally related to A. S was appointed as  one of the executors of the will.  One of the terms of the  will was  "that  on  the death of  me,  executant  the  aforesaid executors  should  perform  the  Shradh  ceremonies  of  the executant according to the means and customs in the family." S  performed  the cremation ceremonies and  helped  the  two daughters-in-law   to  manage  properties.   There  was   no evidence  to show that he performed the Shradh as  well.   S died  before  the  will  was  duly  proved.   The  principal question  in  the suit filed by the heirs of S  was  whether there  was adequate manifestation of an intention to act  as an executor on the part of S. The two lower Courts held that the  intention to act as an executor was apparent  from  the facts  while  the High Court held that, since there  was  no evidence   of  Shradh  being  performed  by  there  was   no ’manifestation’,  as  required  by Sec. 141  of  the  Indian Succession Act. Dismissing the appeal, HELD  :  There  is  a  distinction  between  the   cremation ceremonies and shradh ceremonies which are periodic.  It  is also evident that what the testator desired his executors to do was that they should perform his shradh ceremonies.   The manner in which the testator has referred to S in his  will, almost  as a substitute for a son, shows that he expected  S to  perform his shradh ceremonies as his own sons,  who  had predeceased  him,  would have preformed these. There  is  no evidence whatsoever on record that S ever performed any such ceremony.   The  conclusion  reached  by  the  High   Court, therefore, is correct. [433 C]

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1743 of 1967. Appeal  by Special Leave from the judgment and Decree  dated 15th  October, 1958 of the Patna High Court in  Appeal  from Appellate Decree No. 552 of 1953. V. S. Desai and D. Goburdhan, for the appellants. Sarjoo Prasad, R. K. Jain and E.C. Agarwal, for  respondents Nos. 2- to 12. The Judgment of the Court was delivered by BEG,  J. In this appeal by special leave the short  question involved relates to an application of Sec. 141 of the Indian Succession Act to the facts of the case.  This section reads as follows :               "141.   If a legacy is bequeathed to a  person               Who is named an executor of the will, be shall               not take the legacy,               431               unless   he  proves  the  will  or   otherwise               manifests an intention to, act as executor".               "Illustration:               A  legacy  is  given to A,  who  is  named  an               executor.   A orders the funeral according  to               the directions contained in the will, and dies               a few days after the testator, without  having               proved   the  will.   A  has   manifested   an               intention to act as executor". The  plaintiffs-appellants  before us claim as the heirs  of Sham Narain    Singh who died issueless in August 1913.  One Achhaiber Singh,    a collateral of Shyam Narain Singh,  had made  a  will on 3rd July, 1912, under which  he  gave  life interests  in  the  properties owned by  him  to  his  three daughters-in-law  Deolagan Kuer, Chapkali Kuer, and  Alodhan Kuer.   He  laid down that, after the death of  these  three ladies,  a half share in the properties would go to the  two daughters  of  Alodhan Kuer, and another half to  the  above mentioned  Shyam Narain Singh, a grandson of the  testator’s first  cousin: Achhaiber Singh died in November,  1912.   It was found by all the Courts that Shyam Narain Sing took part in the cremation ceremony, of Achhaiber Singh.   Apparently, the members of the family in which Achhaiber Singh had  been adopted  were  not  well  disposed  towards  him.   It  was, therefore,  not  surprising that Shyam Narain  Singh,  with, whom  he was well pleased, should tight the funeral pyre  as his  agnate in the absence of his sons who  had  predeceased him.  It has also been found that Chapkali Kuer and  Alodhan Kuer  had applied for the Probate of the will  of  Achhaiber Singh  after the death of Shyam Narain Singh.  Hence,  Shyam Narain Singh could not possibly join them at that time.   He had died before the will could be duly proved.  He was  also said to have looked after the properties of the two  ladies. The  question  before  us  is  whether  by  taking  part  in cremation ceremonies and by helping two daughters in-law  to manage properties, Shyam Narain Singh manifested his  inten- tion  to act as an executor so as to be covered by Sec.  141 of  the Indian Succession Act, and, therefore, to claim  his legacy. We may mention here that there was some previous  litigation also between the parties.  In suit No. 144 of 1946,  brought by  the  heirs of Shyam Narain Singh, against  some  of  the defendants  in  the  suit before us,  the  precise  question before  us for decision had arisen, but the High  Court  had not  decided  it.  It had dismissed the suit on  the  ground that the, plaintiffs had not locus standi.  On the  strength of  that decision the bar of res-judicata is relied upon  by the Defendants Respondents before us as it was in the Courts

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below.  But, as this appeal can be disposed of on the  first question,   already  mentioned  by  us,  relating   to   the application  of section 141 Indian Succession Act.  we  need not deal with the plea of res-judicata. The  suit before us was filed by the heirs of  Shyam  Narain Singh for a declaration of the rights of Shyam Narain  Singh in  the property bequeathed, and for a declaration that  the compromise  decree  in suit No. 74 of 1944  was  fraudulent, collusive, invalid, and not binding upon 432 the  plaintiffs.   The Trial Court and then  the  Additional District  Judge  of  Patna,  on  the  first  appeal  of  the Defendants-Respondents   before   us,   had   decreed    the plaintiffs’  suit.  The Additional District Judge  had  held that,  by  taking part in the cremation  ceremonies  and  by helping  the two legatees daughters-in-law of the  testator, Shyam Narain Singh had manifested an intention to act as  an executor before he died.  The Additional District Judge  had also  taken  into account the fact that the heirs  of  Shyam Narain Singh had taken some interest in the properties  left by  Achhaiber Singh by litigating for it.  He  thought  that this  was  only possible if Shyam Narain Singh  had  himself manifested an interest in his right,-, under the will.  This evidence  was considered sufficient for holding  that  Shyam Narain Singh had manifested an intention to act as executor. The  High  Court of Patna had allowed the second  appeal  of defendants on the ground that the findings of fact  recorded by  Courts below were not enough to attract the  application of Section 141 of the Indian Succession Act.  The conduct of the  relations of Shyam Narain Singh, in litigating for  the properly  left  by Achhaiber Singh was, as  the  High  Court rightly  pointed  out,  not  relevant  for  determining  the intentions of Shyam Narain Singh.  Nor was the fact that  he looked  after  the proprieties of the two  co-legatees,  who were widows, a manifestation of his own intention to  assert his own rights as an executor.  What was most important  was the  provision in the will itself which had been  overlooked by  the first two courts.  Achhaiber Singh had laid down  in the  will  : "That on the death of me,  the  executant,  the aforesaid executors, should perform the Shradh ceremonies of me,  the executant according to the means and custom in  the family".   The High Court had accepted the  contention  that there was no evidence that Shyam Narain Singh had  performed Shradh ceremonies of Achhaiber Singh in accordance with "the means and the custom in the family". The  only  contention which could be advanced before  us  on behalf  of  the  plaintiffs-appellants  was  that  cremation ceremonies do not end with actual cremation of the testator, but  include  other ceremonies such  as  Sraddha  ceremonies which  come later.  In reply, we have been referred  to  the meaning  of  the  term "Sraddha" given  in  Sir  M.  Monier- Williams’ Sanskrit-English Dictionary (p. 1097) as follows                ".....a  ceremony  in  honour  and  for   the               benefit of dead  relatives observed with great               strictness  at various fixed periods   and  on               occasions of rejoicing as well as mourning  by               the surviving relatives (these ceremonies  are               performed  by the daily offering of water  and               on stated occasions by the offering of  Pindas               or  balls of rice and meal to  three  paternal               and   three  maternal  forefathers,  i.e.   to               father,  grand-father, and great  grandfather,               it  should be borne in mind that a Sraddha  is               not  a  funeral  ceremony  (antyeshti)  but  a               supplement to such a ceremony; it is an act of

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             reverential   homage  to  a  deceased   person               performed   by  relatives,  and  is   moreover               supposed to supply the dead with strengthening               nutriment   after  the  performance   of   the               previous funeral ceremonies has endowed                                    433               the  with ethereal bodies; indeed until  those               antyeshti   or   funeral  rites’   have   been               performed,  and  until  the  succeeding  first               Sraddha  has,  been  celebrated  the  deceased               relative  is  a prata or  restless,  wandering               ghost,   and   has  no  real  body   (only   a               lingrasarira, q.v.); it is not until the first               Sraddha  has  taken place that  he  attains  a               position among the Pitris or Divine Fathers in               their  blissful abode called  Pitri-loka,  and               the Sro is most desirable and efficacious when               performed by a son;" Thus,  it  is  clear that there  is  a  distinction  between cremation  ceremonies  and  Sraddha  ceremonies  which   are periodic.  It is also evident that what the testator desired his executors to do was that they should perform his Sraddha ceremonies.   The manner in which he refers to Shyam  Narain Singh  in his will, almost as a substitute for a son,  shows that  he expected Shyam Narain Singh to perform his  Sraddha ceremonies  as his ’own sons had predeceased him.  There  is no  evidence  whatsoever on record that Shyam  Narain  Singh ever performed any such ceremony.  The conclusion reached by the High Court is, therefore, correct. Accordingly, we dismiss this appeal with costs. There  is  also a Civil Miscellaneous Petition No.  4146  of 1968  before  us for an amendment of the plaint in  case  we order a remand of the case.  We see no reason to allow  this application which is also dismissed. Appeal dismissed. S.B.W. 434