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PETITIONER: DILHARSHANKAR C. BHACHECHA

       Vs.

RESPONDENT: THE CONTROLLER OF ESTATE DUTY, AHMEDABAD

DATE OF JUDGMENT08/01/1986

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) TULZAPURKAR, V.D.

CITATION:  1986 AIR 1707            1986 SCR  (1)  94  1986 SCC  (1) 701        1986 SCALE  (1)6

ACT:      Estate Duty  Act, 1953  sections 2(15), 2(16), 2(19), 6 and 29  - Interpretation  of the words "paid" and "since" in section 29  -  Joint  will  and  mutual  will  -  Conditions necessary to  render mutual will irrevocable - The theory of contemporaneous exposition  and construction  of the will in question.

HEADNOTE:      The appellant  Dilharshankar C.  Bhachech being  one of the grand-sons of the deceased Kamlashankar Gopalshankar and a legatee  under a  joint will  of his  grand parents is the accountable person  under the  Estate Duty  Act,  1953.  The deceased and  his wife  Mahendraba  each  possessed  certain properties which  were of  their own  individual  ownership. They were  also  jointly  possessed  of  certain  properties including a  bungalow known  as "Dilhar  Dwar" - situated in the Ellisbridge  area of  Ahmedabad. On  24th December, 1950 the deceased  and his  wife had made a joint will in respect of the  said bungalow.  Mahendraba, one of the executants of the joint  will died  on 3rd  January, 1954. On the death of Mahendraba, estate  duty on  her share of the property which passed on  her death  to her  husband Kamlashankar  has been duly paid.  Kamlashankar the  other executant  to the  joint will died, thereafter on 25th October, 1964. Upon his death, the appellant-cum-accountable  person-cum-sole executor  and trustee paid  estate duty  to the remaining extent of 50% on the properties  as  mentioned  in  the  joint  will  of  the deceased  Mahendraba   and   Kamlashankar.   The   appellant accountable persons  in the  returns  filed  contended;  (i) since the property in question was settled by the joint will in favour  of the  grandsons and since duty had been paid on the death  of one  of the joint executants to the will, duty on the  second death  of the deceased was not payable on the whole estate  by virtue  of the  provisions of section 29 of the Estate Duty Act; (ii) that on a true construction of the will, the  deceased was neither at the time of his death nor any time  during the continuance of the settlement, the full owner of  the share of the property of Mahendraba because he had only a 95 life interest therein to receive rents and profits from that

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share, and  therefore, exemption  contemplated by section 29 of the  Act came  into force  and hence  no etate  duty with regard to  the share  of Mahendraba  on  the  death  of  the deceased Kamlashankar arose for the second time. The Revenue was of  the opinion  that on  the death  of Mahendraba,  the wife, her  husband had become the sole owner of the property in question, as is evident from the wealth tax returns filed by him and therefore, exemptions under section 29 of the Act cannot be claimed.      Both the  Assistant Controller of Estate Duty Ahmedabad as  well  as  the  Appellate  Controller  held  against  the accountable person,  taking the  view that section 29 of the Estate Duty  Act was  not applicable.  Full  amount  of  the Estate Duty was collected from the accountable person. In an appeal before the Tribunal, the Tribunal on the construction of the  will held  in favour  of the accountable person, for the reason  that Kamlashankar  did not become the full owner of the share of the property of Mahendraba on her death.      At the  instance of  the Revenue  the Tribunal referred the matter  to the  High Court of Gujarat. While refusing to interpret the  word "since"  narrowly as  contended  by  the Revenue,  the   High  Court,   however,  answered   on   the construction of  the will  in its favour holding that "there was no  agreement of irrevocability and the survivor took an absolute interest  in the  whole of the property and as such section 29  would have  no application  to the  facts of the case. Hence the appeal by certificate.      Allowing the appeal by certificate.      Allowing the appeal, the Court. ^      HELD: 1  The interpretation  sought for  by the Revenue was highly  artificial and against the spirit of section 29. Looking at  the language and the spirit of section 29 of the Estate Duty  Act, 1953, it was clear that the expression "If the estate  duty has already been paid --- since the date of the settlement",  occurring in the first part thereof, meant "if the  estate duty  has become  payable or  has been  paid either simultaneously with the creation of the settlement or at any  time thereafter." The dictionary meaning of the word "since" is wide enough. Section 29 comes into operation only on the  death of the surviving spouse, the obvious intention of 96 the Legislature in framing the section being to avoid double duty. Even  if the word "paid" was used in wider context and not in  the literal  sense, it  could not  be interpreted as excluding its  literal meaning,  namely, the  actual fact of payment having  already been  made. Here,  on the facts, the duty had  been "paid" since the date of the settlement. [104 A-E]      Coutts &  Co. v.  Inland Revenue  Commissioner [1962] 2 All E.R. 521 at 527 quoted with approval.      1.2 Whether  a person  in "competent  to dispose of" of the property  and within  the meaning  of section  6 of  the Estate Duty  Act, 1953,  would naturally depend on the terms and conditions  under which  the property is either acquired or inherited.  The expression "competent to dispose of" must bear the  ordinary meaning in the English language. A person shall be  deemed to  be competent to dispose of the property if he  has every  power or  authority enabling  the donee or other holder  thereof to  appoint or dispose of the property as he thinks fit. [118 D]      1.3 The  question of  strict construction of the taxing statute and the principle that one who claims exemption must strictly come  within the  purview is  not relevant  in  the

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instant  case   because  the   exemption  follows   on   the interpretation of  the will. In the instant case whether the deceased Kamlashankar had the disposing power over the share of the  property of  Mahendraba, his  wife, acquired  by him would depend  not on  how he  has treated  it but  the  true effect of  the will. There is no question of contemporaneous conduct because the conduct of one of the parties subsequent to the  death of  one  of  the  executants  long  after  the execution of the will cannot be described as contemporaneous conduct. The  question of  "contemporaneous  exposition"  by conduct of  the parties  in the  facts of this case does not arise. [119 E; 116 B-C]      2.1 A  joint will  is a  single testamentary instrument containing the  wills of  two or  more persons  and  jointly executed by  them, while  mutual wills are separate wills of two or more persons which are reciprocal in their provisions and executed  in pursuance  of contract or agreement between two or  more persons  to dispose  of their  property to each other or  to third  persons in  particular mode  or  manner. Mutual wills as distinguished from joint wills are sometimes described as  reciprocal wills.  In order  to render  mutual will irrevocable, 97 both the conditions must be concurrently satisfied: (a) that the surviving  testator must have received benefits from the deceased under  the mutual will; (b) the mutual wills should have been  executed in  pursuance of  an agreement  that the testator  shall   not  revoke  the  mutual  wills.  Such  an agreement not to revoke the wills may either appear from the wills themselves  or may  be proved  outside the  wills, but that is  not established by the mere fact that the wills are in identical  terms. If  such an  agreement is  shown,  each party remain bound. [113 D-F; 114 A-C]      A different  and separate agreement must be spelled out not to  revoke the  will after  the  death  of  one  of  the executants. That agreement must be clear, though need not be by a  separate  writing  but  must  follow  as  a  necessary implication which  would tantamount to an express agreement. [118 H; 119 A]      2.2 In the instant case it is clear;      (a) The will in question was a mutual will; [108 B]      (b) Reading  the different  clauses of the said will it was manifest  that the intention was to keep the property as it was  at the  time of  execution of  the will  so that the ultimate beneficiaries  and the  grandsons might  enjoy  the property with  such modifications  as the  contingencies  of time and situation might require; [108 A-B]      (c) Before  the death  of the  first of the executants, the agreement  remained contractual  one in consideration of mutual promises. It could have been at that stage revoked by mutual agreement  or even  by unilateral breach, giving rise at the most to an action for damages. But after the death of first one  without revoking  his or  her own  will makes the joint will irrevocable by the survivor. But there must be an agreement that  the wills  would not  be revoked  after  the death of  one of  the executants  or disposition will not be made contrary  to the  will after  the death  of one  of the executants; [109 C-D, E]      (d) The  predominant intention of the executants at the time of  the execution,  after the acceptance of the benefit of the  execution makes the will in this case irrevocable by the survivor of the executants; [119 A-B]      (e) In  the  facts  and  circumstances  of  this  case, because of the specific clause that it was intended that the grandsons

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98 would receive  the benefit  in species  and there  being  no provision for making up the deficiency or diminution if any, it must follow that there was mutuality and Kamlashankar was not competent  to dispose  of the  property  in  any  manner contrary to the ultimate disposition; [119 B-C]      (f) The fact that estate duty was paid is non sequitur; [119 D]      (g)  The   payment  of   wealth-tax   by   Kamlashankar Gopalshankar  on   the  whole  estate  after  the  death  of Mahendraba is no relevant; and [119 D]      (h) The husband Kamalshankar received the benefit under the  will   after  the   death  of   Mahendraba.  It  became irrevocable by  him after  her death with the result that he had no  disposing power  over the share of Mahendraba in the property. In  the premises being a "settled property" estate duty having  been paid  on the  death of one of the parties, the accountable  person  was  entitled  to  exemption  under section 29 of the Act. [119 F-G]      Dufour v.  Pereira, [1769]  21 E.R. 332; In re: Oldham, 1925 Ch.75;  Gray v.  Perpetual Trustee Co. Ltd. [1928] A.C. 391 at  399 &  400; Re Parsons, Parsons v. Attorney-General, [1942] 2  All E.R.  496; and Bhawani Prasad v. Smt. Surendra Bala W/o  Subodh Chandra  and Anr. A.I.R. 1960 Allahabad 126 discussed and distinguished.      Kuppuswami Raja  v. Perumal Raja A.I.R. 1964 Madras 291 approved.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal  No.  679 (NT) of 1974.      From the  Judgment and  order dated  19/20-12-73 of the Gujarat High Court in Estate Duty Reference No.2 of 1972.      V.S. Desai,  Dilhar C.  Bhachech, Naunit  Lal,  Kailash Vasudev and Mrs. Vinod Arya for the Appellant.      S.C. Manchanda,  C.M. Lodha and Miss. A. Subhashini for the Respondent.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI,  J. In  this appeal by certificate by the High Court under article 133(1) of the Constitution 99 against the  judgment and order of the High Court of Gujarat dated 19/20th  December, 1973 in Estate Duty Reference No. 2 of 1972,  the question  involved is regarding exemption from estate duty  under section  29 of  the Estate Duty Act, 1953 (hereinafter called  the ‘Act’),which contemplates exemption from duty  in cases  where estate  duty  has  been  paid  on settled property  on the  death of  one of  the parties to a marriage.      The appellant  is the  accountable  person  and  he  is related  to  the  deceased  Shri  Kamlashankar  Gopalshankar Bhachech as  one of  his grand  sons.  Deceaed  Kamlashankar Gopalshankar died  on 25th October, 1964. The deceased had a wife named  Mahendraba Kamlashankar  Bhachech. The  deceased and a  his wife each possessed certain properties which were of their  own individual  ownership. They  were also jointly possessed of  certain properties  including a bungalow known as ’Dilhar  Dwar’ -  situated in  the  Ellisbridge  area  of Ahmedabad. The  dispute in  the reference  out of which this appeal arose  was with regard to estate duty leviable on 1/2 share of  the wife  of the deceased in the said bungalow and the land appertaining thereto.      On 24th  December, 1950,  the deceased and his wife had

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made a joint will in respect of the said bungalow. They also made separate  wills with regard to their individually owned properties on  the same  date with  which this appeal is not concerned.      The aforesaid bungalow is situated on Plot Nos. 825 and appertaining to  its main structure there are blocks bearing Nos. 48/2  to 48/6.  In addition  to the  blocks, there is a garage, a  bath room  and two  latrines as  also  some  open compound land  appertaining to the main structure. All these properties were  disposed of  by the  joint will executed by the deceased and his wife. The relevant portion of the joint will is as under:-           "During our  life time  we shall  continue  to  be           joint owners  of the land bungalow and blocks with           their common  bath room  and two privies including           the garage  bearing No.  48/1 and shall be jointly           entitled to  the rents and income of the said land           and blocks  and the user and rent of the bungalow.           After the  death of  one of us, the survivor shall           become the owner of the said land bungalow and 100           blocks including the garage No. 48/1 with the said           bath room and privies and shall become entitled to           the rents  and income  and user  of the  said land           bungalow and  blocks including garage No. 48/1 and           the  bath   room  and   privies.  The   provisions           hereinafter contained shall become effective after           the death  of the  survivor of us. After the death           of the  survivor of us, hereby devise and bequeath           our said  furnished Bungalow including all things,           articles,  furniture,   utensils,  fixtures   etc.           together with the portion of the land and compound           walls delineated  on the  plan hereto  annexed and           coloured red and marked ’B’ to our grandson Dilhar           shankar  Chintanvanshankar   Bhachech.  We  hereby           devise the  bequeath our  block Nos.  48/2 to 48/6           including garage  bearing No.  48/1 with  the said           bath room and privies together with the portion of           the land and compound walls delineated on the plan           hereto annexed and coloured blue and marked ’C’ to           our   Grandson    Snehitshankar   Chintavanshankar           Bhachech.  We   hereby  devise  and  bequeath  the           portion of  the open  land and  the compound walls           delineated on the plan hereto annexed and coloured           green and  marked ’A’ to our grandson Hasitshankar           Drupad shankar Bhachech.".      Mahendraba Kamlashankar  Bhachech one of the executants of the Joint Will died on 3rd January, 1954. On the death of Mahendraba, estate  duty on  her share of the property which passed on  her death  to Kamlashankar  Gopalshankar has been duly  paid.  This  is  an  admitted  position.  Kamlashankar Gopalshankar died,  thereafter, on  25th October, 1964. Upon his death,  the appellant  cum accountable  person cum  sole executor and  trustee paid  estate  duty  to  the  remaining extent of  50% on  the properties  mentioned  in  the  above mentioned joint  will of  the husband and the wife. The case of the  revenue was  that on  the death  of Mahendraba,  the wife, the  deceased Kamlashankar  Gopalshankar, the husband, had become  the sole  owner of  the property in question and that he  had filed  his wealth  tax returns accordingly. The case of  the appellant-accountable person was that since the property in question was settled by the joint will in favour of the  grandsons and  since duty had been paid on the death of one  of the  joint executants  to the  will, duty  on the second death  of the  deceased was  not payable on the whole

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estate by virtue of the provisions of section 29 101 of the  Act.  It  was  further  contended  that  on  a  true construction of  the will,  the deceased  was neither at the time of his death nor any time during the continuance of the settlement, the  full owner  of the share of the property of Mahendraba because  he had  only a  life interest therein to receive rents  and profits  from that share, and, therefore, exemption contemplated  by section  29 of  the Act came into force and  the revenue  was not  entitled to levy any estate duty with  regard to the share of Mahendraba on the death of the  deceased,   Kamlashankar  Gopalshankar.  The  question, therefore, that arose before the revenue authorities as well as the  High Court,  was, whether  the appellant  herein was liable to  pay estate  duty on  1/2 share which the deceased possessed or on the whole including the share which the wife of the deceased had in the property.      Both the Assistant Controller of Estate Duty, Ahmedabad as  well  as  the  Appellate  Controller  held  against  the accountable person  and further  held that section 29 of the Act was  not applicable.  Full amount of the estate duty was collected from  the accountable  person. There was an appeal before the Tribunal. The Tribunal on the construction of the will held  in favour of the accountable person. The Tribunal held that  the deceased  Kamlashankar Gopalshankar  did  not become the  full owner  of the  share  of  the  property  of Mahendraba on her death.      At the  instance the revenue, the Tribunal referred the following question of law to the High Court:           "Whether, on the facts and in the circumstances of           the case,  the Tribunal  was right in holding that           the respondent  is entitled  to the  full  benefit           conferred by section 29 and that as such no estate           duty in  respect of  the half  share in  the joint           property  which   originally  belonged   to   late           Mahendraba, the wife of the deceased is payable by           the respondent?"      The aforesaid  reference was answered by the High Court in favour  of the respondent by its judgment and order dated 19/20th December,  1973 and gave a certificate of fitness of appeal to this Court.      It is  necessary in this connection to refer to section 29 of the Act which reads as follows: 102           "Settled property  in respect  of which  since the           date of  the settlement  estate duty has been paid           on the death of the deceased’s spouse.           29. If  estate  duty  has  already  been  paid  in           respect of  any settled property since the date of           the settlement, on the death of one of the parties           to a  marriage,  the  estate  duty  shall  not  be           payable in  respect thereof  on the  death of  the           other party,  to the  marriage, unless  the latter           was at  the time  of his death, or had been at any           time during  the continuance  of  the  settlement,           competent to  dispose of such property, and, if on           his  death   subsequent  limitations   under   the           settlement  take   effect  in   respect  of   such           property, was  sui juris at the time of his death,           or had  been  sui  juris  at  any  time  while  so           competent to dispose of the property."      ’Settled property’ has been defined in section 2(19) of the Act as follows:-           "2. In  this Act,  unless  the  context  otherwise           requires,-

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         x   x   x   x   x           x   x   x   x   x           (19)  "settled   property"  means  property  which           stands limited  to, or  in trust for, any persons,           natural  or   juridical,  by  way  of  succession,           whether the settlement took effect before or after           the commencement  of this  Act;  and  "settlement"           means any  disposition, including  a dedication or           endowment, whereby property is settled."      Section 2(15) states:           "’Property’ includes  any  interest  in  property,           movable or immovable, the proceeds of sale thereof           and any  money or  investment for  the time  being           representing the proceeds of sale and also species           into another by any methos."      Section 2(16) states:           "’Property passing on the death’ includes property           passing either immediately on the death or after 103           any interval,  either certainly  or  contingently,           and either  originally or  by way  of substitutive           limitation, and  "on the  death"  includes  "at  a           period ascertainable  only  by  reference  to  the           death."      Section 5  provides for  levy of the estate duty in the case of every person dying after the commencement of the Act upon  the   principal  value   ascertained  in   the  manner stipulated therein. Section 6 states that the property which the deceased  was at  the time  of his  death  competent  to dispose of  shall be  deemed to pass on his death. Section 6 is important  in this connection because in order to attract the levy  of the  estate duty, the deceased should have been competent to  dispose of  the property.  Therefore what  law requires is  that the deceased whose death attracts the duty must have  had disposing power at the time of his death. One of the  important  questions  involved  in  this  appeal  is whether the deceased Kamlashankar Gopalshankar had disposing power over  the entirety  of  the  property  which  was  the subject matter of the will by the joint executants.      Two contentions  were urged  before the High Court. The first  contention  was  on  the  correct  interpretation  of section 29  of the  Act and the second contention was on the true construction  of the  joint will  made by  the deceased Kamlashankar Gopalshankar  and his  wife Mahendraba  in  the year 1950.  On the  first point, the provision of section 29 of the  Act has  been noticed. It was submitted on behalf of the revenue  before the High Court that section 29 came into operation only  where the  estate duty  had  become  payable "since the  date of  the settlement".  It was contended that the expression  "Since the  date of  the settlement" clearly indicated that  the settlement in question should first come into  existence   and  duty   should  have   become  payable subsequent to  the coming  into existence of the settlement. The revenue  pointed out  that in  the instant  case it  was contended by  the accountable  person that the settlement in favour of  the grandsons came into existence on the death of Mahendraba, then  it was not possible to accept the position that liability  to  pay  estate  duty  came  into  existence subsequent to  the settlement  because any  liability to pay the estate  duty would  also come  into existence exactly at the moment of the death of the deceased.      It was  pointed out  on  behalf  of  the  revenue  that "settlement" and  "liability to  pay estate  duty" both  had come  into   existence  simultaneously   on  the   death  of Mahendraba and

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104 if that  was so,  section 29 had no application to the facts of this  case. It  was urged on behalf of the revenue before the High  Court that  the word  "paid"  should  be  read  as "payable" while  construing section  29  of  the  Act.  This interpretation which  the revenue  wanted to  place  on  the section was  confined only  to the  first part thereof which stated that  ’the estate  duty has  already  been  paid’  in respect of settled property since the date of the settlement on the death of one of the parties to the marriage, then the estate duty  shall not  be payable in respect thereof on the death of the other party to the marriage. This argument was, however, not  accepted by  the High  Court. The  High  Court observed that  looking at the language and the spirit of the section, it  was clear  that the  expression "if  the estate duty  has   already  been  paid....since  the  date  of  the settlement" meant"  if the estate duty had become payable or has been paid either simultaneously with the creation of the settlement or  at any  time thereafter".  So the  High Court emphasised that  the dictionary  meaning of the word "since" is wide  and the  fact is  that section comes into operation only on  the death  of the  surviving spouse and the obvious intention of  the legislature  in framing the section was to avoid double duty. That intention, the court observed, would be frustrated  if the  word "since" was interpreted narrowly as contended for by the revenue. Even if the word "paid" was used in wider context and not in the literal sense, it could not be  interpreted as excluding its literal meaning, namely the actual  fact of  payment having  already been  made. The High Court was of the view that interpretation sought for by the revenue  was highly artificial and against the spirit of the section. We are in agreement with the High Court on this point. The High Court referred to the analogous provision of section  5(2)  of  the  English  Statute  and  followed  the observations of  Upjohn L.J.  in  Coutts  &  Co.  v.  Inland Revenue Commissioner,  [1962] 2  All E.R. 521 at 527. We are also in  respectful agreement  with  the  said  observations referred to  by the  High Court and on the facts, it must be held that  the duty  had been  "paid" since  the date of the settlement. No  submission to  the contrary  was made before us.      The second  contention was  on the  construction of the will. Construing  the will  in the surrounding circumstances and in  the light of the language used the High Court was of the view that there was no agreement that the survivor shall not revoke  the will  or do anything to diminish the quantum of the  property going  into the  hands  of  the  subsequent legatees. 105 Therefore the deceased as survivor took absolute interest in the property  and section  29  of  the  Act  would  have  no application to  this case.  The  question  was  accordingly, answered in favour of the revenue and in the negative.      The construction  of the  will is  the main question in this appeal. Whether the accountable person is liable to pay estate duty  on full  value of  the whole  property i.e. the share  belonging  to  Mahendraba  as  well  as  Kamlashankar Gopalshankar would  depend upon the construction of the will in question  read in the light of section 29 of the Act. The section to  be applied  requires payment  of estate duty, in respect of the ’settled property’ on the death of one of the parties to  the marriage.  Whether property in question here was  settled   property  or   not  would   depend  upon  the construction of the will.      The question  that fell  for consideration  by the High

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Court and  also falls  for consideration  in this  Court  is whether the  deceased Kamlashankar Gopalshankar who survived his wife,  one of  the joint  executants to  the  will,  was competent to dispose of the share of Mahendraba which he had inherited under  the said  will. Therefore,  the question is what is  the true  meaning and  effect of  the will? Did the deceased  Kamlashankar   Gopalshankar  have  any  ’disposing power’ over  the property which is the subject matter of the will?      On behalf  of the  accountable person, it was contended that the  Will in question was not merely a joint Will but a Will which was joint as well as mutual containing reciprocal agreements between the parties making the Will and therefore the deceased  Kamlashankar Gopalshankar  had no power in his life time  to revoke  or alter  the disposition  made in the Will or  to do  anything inter  vivos  after  the  death  of Mahendraba  which  would  have  gone  against  the  ultimate disposition indicated  in the  Will. It  was submitted  that there was an implicit agreement between the deceased and his wife, that  on the  consideration of  each other agreeing to bequeath his  or her  share in the property in favour of the survivors each  undertook not  to do  anything  which  would render the  subsequent and  ultimate bequest  in  favour  of grandsons ineffective.  And if  such was  the agreement,  it must follow that what the deceased received as a legatee was not full  ownership right  of disposal  but only  a  limited interest in  the share of the wife and this would be so even when both  executants and the survivor were described in the Will as "owner". 106      It was  submitted that if this construction of the Will was  accepted,   there  came   into  existence  a  resulting settlement in  favour of  the grandsons  on the death of the wife and hence the property became ’settled property’ within the meaning  of section 2(19) of the Act. It was pointed out that  if   it  was  accepted  as  a’settled  property’,  the accountable person  was entitled  to exemption under section 29 of the Act because admittedly duty was once paid on it on the death  of Mahendraba  in the  year  1954.  Reliance  was placed before  the High  Court on  behalf of the accountable person on  the decision  in the  case of  Dufour v. Pereire, [1769] 21  E.R. 332,  as well  as Kuppuswami Raja v. Perumal Rama, A.I.R. 1964 Madras 291.      According to  the revenue  on the  other hand, the Will was joint  one pure  and simple and there was no evidence of any mutuality.  It  was  contended  that  there  was  enough evidence in the language of the will itself to show that the survivor was  to acquire  full  ownership  rights  over  the property and  was therefore  competent at  all times  on the first death  to revoke  the Will  or dispose of the property inter vivos.      The High  Court on  an exhaustive  consideration of all the  relevant   judgments  and   authorities  came   to  the conclusion that there was no evidence to prove any agreement not to  revoke the  Will after  the  death  of  one  of  the executants. The High Court was of the view that there was no external evidence  and so  far as  the internal evidence was concerned, it  appeared to  the High  Court that each of the executants might  have thought  that it  was quite  safe  to trust the  other and  to believe that having regard to their ages and their affection for the grand children who were the ultimate beneficiaries,  nothing was  likely to occur in the near future  which would substantially diminish the property taken by  the survivor  who can be trusted to give effect to the wishes of the deceased. Therefore, according to the High

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Court, there  was no  agreement of  irrevocability  and  the survivor took  an absolute  interest in  the  whole  of  the property and as such section 29 would have no application to the facts of this case. In that view of the matter, the High Court answered the question in the negative and in favour of the revenue.      It is  the correctness  of that decision which is under challenge  in   this  appeal.   The  sole  question  in  the background of the provisions of the relevant sections namely section 29  read with other sections that have been referred to herein- 107 before, is,  whether it  was merely a joint Will or it was a joint and  mutual Will or in other words there was agreement implied between  the parties  namely the  executants of  the Will not  to revoke  the Will  after the death of one of the executants. It  is, therefore,  appropriate to  refer to the relevant provisions  of  the  Will.  The  Will  was  jointly executed by Kamlashankar Gopalshankar and Mahendraba on 24th December,  1950  and  described  as  "last  joint  Will  and testament".  They   appointed  the  accountable  person  the apppellant herein,  as ’our  Executor’. The  Will thereafter goes on to say:           "We are  that joint  owners of a Bungalow known as           ’Dilhar Dwar’  situate  at  Ellis  Bridge,  Pritam           Nagar bearing  Plot No. 825, Bungalow No. 48/A. In           addition to  the main  bungalow there  are certain           other blocks  bearing Nos.  48/2 to  48/6 and  one           garage bearing  No. 48/1  which is below Block No.           48/2 and  a common  bath room  and two privies for           blocks  No.   48/2  to   48/6.  We  have  been  in           possession of  the  land,  the  bungalow  and  the           blocks for  many years  past.  We  are  in  actual           occupation of  the main bungalow. The other blocks           except the  garage bearing  No. 48/1 and Block No.           48/5 are rented to tenants. The garage bearing No.           48/1 is  for the  present allowed by us to be used           by our permission and leave and licence by our son           Chintvanshankar  Kamlashankar   Bhachech   without           payment of any sum."           Then the  will goes  on to  make  the  bequest  in           favour of  the three  grandsons in  terms set  our           hereinbefore.      The will  thereafter goes  on to  provide in detail for the contingencies  that might happen in case where either by the rules  of the Town Planning Scheme or the Municipal Laws the portions  of the  property need and require alterations. The will  further stipulates  in detail about the payment of the house  taxes in  respect of the properties coming to the shares of  each of  their grandsons,  and even in respect of the areas  built by  them. The  will further stipulates that for the  purpose of  partitioning the  land as demarcated on the plan there to annexed and referred to above if there was any obstruction  on the  land going  to the share of each of their  grandsons   which  encroached  upon  the  portion  or portions coming  to the share of other grandson or grandsons the same  should be  removed by  the person or persons whose encroachment or obstruction, it may be. 108      Reading the different clauses of the said joint will it was manifest that the intention was to keep the property, as it was  at the  time of  execution of  the will  so that the ultimate beneficiaries  and  the  grandsons  may  enjoy  the property  in   full   with   such   modifications   as   the contingencies of time and situation might require.

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    In this  background it is necessary to find out whether the Will  in question  was a  joint will only or a joint and mutual Will.      Theobald on  ’Wills’, Twelfth Edition, pages 28 & 29 at paras 79 & 80 describes the difference thus:           "Joint wills.  Persons may make joint wills, which           are, however,  revocable at  any time by either of           them or  by the  survivor. A  joint will is looked           upon as  the will  of each  testator, and  may  be           proved on  the death of one. But the survivor will           be treated  in equity  as a  trustee of  the joint           property if  there is a contract not to revoke the           will; but  the mere  fact of  the execution  of  a           joint  will  is  not  sufficient  to  establish  a           contract not  to revoke.  So a legacy to a legatee           who survived  the first  testator, but predeceased           the second,  did not  lapse. Where a joint will is           followed by  a separate  will which is conditional           on a  condition that  fails, the joint will is not           revoked even  though the  subsequent separate will           contains a revocation clause.           Mutual wills.  The term  "mutual wills" is used to           describe  separate  documents  of  a  testamentary           character made  as  the  result  of  an  agreement           between  the   parties   to   create   irrevocable           interests    in     favour    of     ascertainable           beneficiaries. The  revocable nature  of the wills           under which  the interests  are created  is  fully           recognised by the Court of Probate; but in certain           circumstances the Court of Equity will protect and           enforce the  interests created  by  the  agreement           despite the  revocation of  the will  by one party           after  the  death  of  the  other  without  having           revoked his will.           The  Court   of  Equity   will  not   protect  the           beneficiary under mutual wills merely because they           have been  made in  almost identical  terms. There           must be 109           evidence of an agreement to create interests under           the  mutual   wills  which   are  intended  to  be           irrevocable after  the death  of the first to die.           Where there  is no such evidence the fact that the           survivor takes  an absolute  interest is  a factor           against the  implication of such agreement. Where,           however, the  evidence is  clear, as, for example,           where it  is contained  in recitals  in the  wills           themselves, the  fact that  each testator gave the           other an  absolute interest  with a substitutional           gift in  the event of the other’s prior death does           not prevent the Court of Equity from affording its           protection to  the beneficiary  under  the  mutual           wills. The  agreement must  also  be  sufficiently           precise to be enforced by the Court.           Before  the   death  of  the  first  to  die,  the           agreement   is   a   contractual   one   made   in           consideration  of   mutual   promises.   It   can,           therefore, at  this stage  be  revoked  by  mutual           agreement and  even by  unilateral breach,  giving           rise to  an action  for damages at least where the           revoking party  gives such  notice to the other as           may enable  him to  alter his  will also.  But  on           general  principles   only  the   parties  to  the           agreement  can  sue  for  damages  for  unilateral           breach."

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    Earl Jowitt  in the Dictionary of English Law, 1st Edn. Second  Impression   1965  at  page  1283,  referes  to  the definition of  ’owner’ under  Public  Health  1936  and  the Factories Act, 1937 as a person for the time being receiving the rack-rent  of the  premises in connection with which the word is  used, whether  on his  own account  or as  agent or trustee.  Jowitt   also  defines  ’ownership’  as  the  most extensive right  allowed by law to a person, of dealing with a thing  to the  exclusion of  all other  persons, or of all except one  or more  specified persons.  It is  therefore  a right in rem.      Stroud’s Judicial  Dictionary 4th  Edn. Vol.3 page 1907 deals  with  the  concept  of  ’owner’  and  ’ownership’  in different statutes of England.      Halsbury’s Laws  of England, 4th Edn., Vol. 50 at pages 95 &  96, paras  207 &  208 deals  more or  less in the same manner about  joint will  and mutual  will. But at page 108, para 221 it states the law thus: 110           "221. Restrictions  by taking  a benefit  under  a           mutual will. Mutual wills may be made, either by a           joint will  or by  separate wills, in pursuance of           an agreement that they are not to be revoked. Such           an agreement  may appear from the wills, or may be           proved  outside   the  wills,   but  it   is   not           established by the mere fact that the wills are in           identical terms.  If no  such agreement  is shown,           each party  remains free  to revoke  his will,  if           there are  separate wills,  or to revoke the joint           will, so  far as  it disposes of his property, and           the fact  that one party has died without revoking           the disposition  of his  property does not prevent           the survivor  from revoking  the disposition which           he has  made notwithstanding  that he has received           benefits out  of the estate of the deceased party.           Even when there is such an agreement and one party           has died  after departing  from it  by revoking or           altering the  will, the  survivor having notice of           the breach cannot claim to have the later will set           aside, since  the notice  gives him  the chance of           altering the will as regards his own property; and           the  death   of  the   deceased  party  is  itself           sufficient notice  for this  purpose. It, however,           the deceased  has stood  by the  agreement and not           revoked or altered his will, the survivor is bound           by it,  and although  probate will be granted of a           later will made by him in breach of the agreement,           since a  court of  probate is  only concerned with           the last will, the personal representatives of the           survivor nevertheless  hold his estate in trust to           give effect to the provisions of the joint will or           mutual wills."      Jarman on  Wills in  8th Edn.  at page  42  states  the position of mutual wills thus:           "The  fact   that  a   husband   and   wife   have           simultaneously made  mutual wills,  giving each to           the other  a life interest with similar provisions           in remainder,  is not  in itself  evidence  of  an           agreement not  to revoke the wills; in the absence           of a definite agreement to that effect there is no           implied trust  precluding the  wife from  making a           fresh will inconsistent with her former will, even           though her  husband has died and she has taken the           benefits conferred by his will. Although by the 111

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         mutual wills the wife expressly has refrained from           exercising  a  power  of  appointment,  which  her           husband had  only in default of her exercising it,           and he  has appointed,  the wife can both take the           benefit of  her husband’s  will and  exercise  her           power of  appointment, unless  the language of his           will either puts her to her election, or place her           in the  position of  seeking at  the same  time to           approbate and reprobate its provisions.      The joint  executants  have  been  described  as  joint owners. Again  the said clause goes on to use the expression ’during our  life time  we shall  continue to  be the  joint owners’ ’and  shall be  jointly entitled  to the  rents  and income of  the said land and blocks and the user and rent of the bungalow.  The Will  goes on to say that after the death of one  of them  ’survivor shall  become the  "owner" of the said land  bungalow and blocks including the garage with the said bath  room and privies and shall become entitled to the rents and  income and  user of  the said  land bungalow  and block’s. The  provisions contained  in the  said  will  were stipulated to  be effective  after the death of the survivor of them. After the death of the survivor the will went on to use the  expression "we  hereby devise and bequeath our said furnished  bungalow....."   Then  the   will  made  detailed provisions for  the enjoyment  of the  property in  specific species.      In re  Oldham, 1925  Ch. 75,  the husband  and wife had made mutual  wills in  the same  form  in  pursuance  of  an agreement so  as to  make them  but there was no evidence of any further  agreement in  the matter.  Each gave his or her property to  the other  absolutely with the same alternative provisions in  case of  lapse. The  wife having survived and accepted  her  husband’s  property  under  the  mutual  will subsequently married  again, and  made a fresh will ignoring the alternative  provisions of  her  own  mutual  will.  The plaintiff in  that case contended that from the agreement to make mutual  wills in  the form in which they were made, the survivor who  had accepted  the  benefit  under  the  mutual agreements became  thereby  subject  to  alternative  trusts mentioned in the mutual wills. Reliance was placed on Dufour v. Pereira  (supra). Reference  was made to the observations of Astbury  J. in that where the learned judge observed that in order  to enforce  the trust, the judge must be satisfied that there was a term irrevocable and in such 112 circumstances he  was to  give effect  to the  same. But the learned judge  was unable  having read  the will to find any mutuality in  that  form  in  the  will  in  question.  This decision found  favour with  the Gujarat  High Court. In the instant case  before us, it has to be noted that the will in question was  in one  document and furthermore the desire to give properties  in species  to the  grandsons was  manifest from the entirety of the will.      It would  be evident  from the said will that the joint properties  of  the  deceased  husband  and  the  wife  were delineated into  three parts  and each  of  the  parts  were bequeathed to  three grandsons  in species  i.e. in specific demarcated areas.  One other significant fact to be borne in mind, in view of the contentions involved in this appeal, is the fact  that there was no provision in the will whereby if one of  the properties  or one  of the  parts  of  the  said properties was parted away or diminished before the death of both the  executants (this is important because the will was to take  effect on  the death of both the executants), there was no  provision that  any part which got diminished during

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the life  time of  one  of  the  executants,  he  should  be compensated other-wise  from any  other  part  of  the  said properties  or  any  other  assets  of  the  estate  of  the executants which were the subject matter of the will.      Reliance was  placed in  Gray v.  Perpetual Trustee Co. Ltd.,[1928] A.C.  391 at 399 & 400. In that case it was held that the  fact that  husband and  wife  simultaneously  made mutual wills giving life interest with similar provisions in the remainder was not in itself evidence to an agreement not to revoke the wills.      The use  of the  expression ’owner’  is really  not the solution of  the problem  before us  in this  appeal. In one context the expression ’owner’ has been used to indicate the limited ownership to be enjoyed by the survivor of the joint executants and  in another  context to the ultimate legatees or the beneficiaries.      Clause 5  of the  will is suggestive that it was in the contemplation of  the executants  as to what would happen to certain amounts  lying to  their credit  at the  time of the death of  the survivor  in the  event of  the death  of  the grandson before the death of the survivor of the executants. It 113 provided that  in that  event the  amounts would  go to  the heirs according  to law of the grandson named therein. These properties were  again  in  clause  7  described  as  ’joint properties’.      It would  be material  to refer, apart from the clauses which have  been set  out  hereinbefore,  to  certain  other clauses namely clause 2 of the will, the relevant portion of which has  been set out hereinbefore in its entirety. Clause 3 deals  with the  situation when if any of the grandsons or the heirs wanted to sell his or their portion of building at any time.  Clause 4  also dealt with the situation if one of the grandsons  died during  their life  time and  before the death of  the survivor  what would happen? Clause 5 has been referred  to  hereinbefore.  Clause  6  deals  with  certain movable properties. Clause 7 dealt with separate properties.      It is  evident from  the  aforesaid  that  property  in species,  in   specific  proportion,   was  intended  to  be preserved and  enjoyed by  the ultimate legatee on the death of the survivors.      In Kuppuswamy  Raja v.  Perumal Raja  (supra),  it  was observed that  a joint  will is  by  a  single  testamentary instrument containing  the wills  of two or more persons and jointly executed  by them,  while mutual wills, are separate wills of  two or  more persons which are reciprocal in their provisions  and   executed  in   pursuance  of  contract  or agreement between  two or  more persons  to dispose of their property to each other to third person in particular mode or manner. Mutual  wills as  distinguished from joint wills are sometimes described  as reciprocal  wills. In  describing  a will, the  adjective mutual  or reciprocal is used to denote the contractual  element which  distinguished from  a  joint will. It  was stated  therein by  the Division  Bench of the Madras High  Court that  joint will would become irrevocable on the  death of  one  of  the  testators  if  the  survivor received  benefit  under  the  will.  The  Court  emphasised referring into  certain decisions of this court that a joint will would  become irrevocable  on the  death of  one of the testators if  the survivor  has received  benefit under  the mutual  will.  There  need  not  be  any  specific  contract prohibiting evocation  when the  agreement took  the form of not two  simultaneous mutual  wills but one single document. If one  single document  was executed  using the  expression

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’our property’, ’our present wishes’, and ’as will’ and such similar expressions,  it was  strong cogent  evidence of the intention that there was no power to revoke except by mutual consent. 114      In order  to  render  mutual  will  irrevocable,  both, according to  the said  decision,  the  conditions  must  be concurrently satisfied:      (a)  that the  surviving testator  must  have  received benefits from  the deceased  under the  mutual will; (b) the mutual wills  should have  been executed  in pursuance of an agreement that  the testators  shall not  revoke the  mutual wills. Such  an agreement not to revoke the wills may either appear from  the wills  themselves or  may be proved outside the wills.  This judgment was dissented from by the judgment under appeal.      Reliance was  placed on  the decision  of the Allahabad High Court  in Bhawani  Prasad v.  Smt.  Surendra  Bala  W/o Subodh Chandra  and another,  A.I.R. 1960  Allahabad 126. In that case, by the will both the executants, husband and wife were devising  the property  of which each was the owner, in the first  instance to whoever survived, and thereafter both of them  devised the  property  ’belonging  to  us’  to  the petitioners. There was an assertion of absolute ownership in the house  made by  the wife,  and an assertion made by both executants that  the deposits  in the bank constituted money ’belonging to  us  the  executants’.  The  items  aforesaid, according to  the will,  were  to  remain  in  the  absolute possession and enjoyment of the executants during their life time  and  thereafter  to  be  disposed  of  in  the  manner indicated in  the will.  The last  clause, clause (4) of the will indicated  that the  executants would have the right to amend or  cancel the  will, but  nobody else would have that right. It  was found  that the  exercise of the right of the power reserved  by clause (4) was not made dependent by this clause on  the co-existence  of both  the executants. It was held on  the construction  of reading of the will that after the death  of the husband, the wife could revoke the part of the will  by gifting  away the  house to  another during her life time.  The fact  that the  wife had benefitted from the will of  the husband would not destroy her power of revoking her  will   because  her   will  was  quite  an  independent transaction. The  deed of  gift could  not be  taken to have revoked the  will of  the husband  but only  the will of the wife. The  case was really decided in terms of the facts and circumstances of that case and wordings of the will.      In the case of Re Parsons, Parsons v. Attorney General, [1942] (2)  All E.R.  496, the testatrix gave a legacy of L- 10,000 to her husband absolutely, and she also gave the 115 income of  her residuary estate on trust for her huaband for life and  after his  death on  trust for her son absolutely. The husband  disclaimed the  legacy  by  a  formal  deed  of disclaimer  and   the  legacy  fell  into  residue.  On  the husband’s death  the revenue authorities claimed estate duty in respect  of the  legacy on  the ground  that although the husband had  disclaimed the  legacy,  he  was  competent  to dispose of  it and the liability to duty was not, therefore, excluded by  the Finance  Act, 1948. It was held that during the period  between the  death of the testatrix and the date of the  disclaimer the husband was ’competent to dispose’ of the legacy  within the  meaning of the Act. Whether a person is competent  to dispose  of naturally  would depend  on the terms and  conditions under  which the  property  is  either acquired or  inherited. The expression ’competent to dispose

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of’ must  bear the ordinary meaning in the English language. A person  shall be  deemed to be competent to dispose of the property if  he has  every power  or authority  enabling the donee or  other holder  thereof to appoint or dispose of the property as he thinks fit.      A contention was raised in this connection whether this being an exemption provision from duty, it should be so read as to lean in favour of the assessee.      The questions whether such a clause should be construed in favour  of the  assessee or  in favour  of the revenue in case of  doubt or  the question  whether  section  29  being exemption clause  in respect  of payment  of duty on settled property, the  onus is  on the  assessee  to  come  strictly within the purview of that clause or the question how should such a  provision be construed really do not arise. There is not much  difficulty or  ambiguity on  the  construction  of section 29 of the Act. The question involved in this case is the construction  of the  will in  question. Was  it only  a joint will  executed jointly by two of the executants or was it a joint and a mutual will? In aid of the submissions that an exemption  clause must be strictly construed in favour of the State  cases were  cited which  need  not  therefore  be noticed.      Reference was  made to Cross ’Statutory Interpretation’ on construction  on the theory of contemporaneous exposition reliance being placed on the conduct of the parties i.e. the deceased and  treated the  half share  of the  wife  in  the property in  question as  his own  and had  filed wealth tax returns on the same basis. 116      These principles  are  also  well  settled.  But  these principles will  not strictly  be applicable  in the instant case because  this appeal is concerned with the construction of the  will in  question and  the will  in question must be construed in such a manner as to find out the true intention of the executants or the testator and testatrix. For that it is well  settled that will must be read as a whole. Secondly the expression must be read consistently.      One has  to bear in mind that we are concerned with the construction  of  the  will  and  the  true  effect  of  the provisions  thereof.   Whether  the   deceased  Kamlashankar Gopalshankar had  the disposing  power over the share of the property of  Mahendraba, his  wife, acquired  by  him  would depend not  on how  he has treated it but the true effect of the   will.    Furthermore   there   is   no   question   of contemporaneous conduct  because the  conduct of  one of the parties subsequent  to the  death of  one of  the executants long after  the execution of the will cannot be described as ’contemporaneous conduct’.  We need  not, therefore,  detain ourselves on the question of ’contemporaneous exposition’ by conduct of the parties in the facts of this case.      Therefore the  will must  be construed  in  its  proper light and  there must  be definite  agreement found from the tenor of  the will  or aliunde  that  either  of  the  joint executants would  not revoke  the will  after receiving  the benefit under  the will. Such definite agreement need not be express; it  can be implied. The terms of the will have been set out  exhaustively. It  was undoubtedly a joint will. The property in  question has  been described as ’our property’. The expression  ’owner’ has  also been  used in  the  manner indicated in  the sentence  ’During our  life time  we shall continue to  be the  joint owners  of the  land bungalow and blocks with  their common  bath room  and two privies....and shall be  jointly entitled  to the  rents and  income of the said land and blocks and the user and rent of the bungalow’.

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The will  goes on further to say that on the death of one of them, the  survivor shall  become the  ’owner of user of the said  land  bungalow  and  blocks  including  garage.....  ’ Therefore it  is clear  that the  ownership which  the joint executants contemplated  was the  user during  the life time and entitlement  to the  rents and income of the same. It is this ownership  which was  to pass on the death of either of them to the survivor and the will thereafter goes on to say 117 that ’the  provisions  hereinafter  contained  shall  become effective after  the death  of  the  survivor  of  us’.  And thereafter after  the death it is provided "we hereby devise and bequeath  our said  furnished bungalow....... " The gift of the  property to  the three  grand children  as owners in full sense is to take effect on the death of the survivor of both the  executants. It  is clear  that  the  property  was intended to  be kept  in  tact  for  the  enjoyment  of  the ultimate legatees and during the life time of either of them the property  would  not  in  any  way  be  parted  with  or diminished. This  intention, expressed  in the implied terms in the  bargain in  the  will,  in  our  opinion,  would  be fortified by  devising the  property to three grand children in species  i.e. in  specific form and not providing for any money or  compensation for  diminution of  any part  thereof before coming  into effect  of the will in question. If that is the  position then,  in our  opinion, there is a definite agreement not  to revoke  the will  by one of the executants after he  or she  has received the benefit under the will on the death of either of them.      Indubitably  in   the  instant  case  the  husband  has received the  benefit under  the will  of the wife. He could not have  during his life time parted with the property i.e. he did  not have  the disposing power over the properties in question after the death of the wife.      It  was  emphasised  that  there  was  no  evidence  of mutuality. But  there was enough evidence in the language of the will  itself which  have been  set out hereinbefore that the property  must remain in tact specially after receipt of benefit by  one of  the executants on the death of the other until the  death of  both of them to be able to be succeeded by the  ultimate legatees.  The dominant  intention  of  the testators is  evidenced from the language used. This must be judged in  the facts  and circumstances of each case. It was not only that on certain basis that the will was made but it was intended  to remain  intact to  be enjoyed  by the grand children. The  fact that  both the executants have described themselves ’joint  owners’ is  not by  itself conclusive  on this point  nor the use of the expression ’that the survivor shall become the owner’ is conclusive. On the other hand the detailed provisions  in species  to be  effective after  the death of  the survivor  in different portions to be given to the different  grand sons  without any  provision as to what was to  happen in  case of  the diminution  of the  property within the life time of either of the survivor make the will ’mutual wills’. 118      In our opinion the dominant intention is clear i.e. the will may  be revoked  during  the  life  time  of  both  the executants but  after the death of one of the executants and after  benefit  had  been  received  by  the  survivor,  the property in question must remain intact to be enjoyed by the grand children  by the terms of the will which was to become effective on the death of both of the executants.      We are  of the  opinion that definite intention must be there but such intention need not be expressed in a separate

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document than  the will itself. If from the will in question such a  definite intention  and a  separate agreement can be spelled out  then in our opinion it would be a case of joint and mutual will.      In  view   of  the   above  discussion,  the  following propositions follows:      1. Whether  estate duty was payable on the whole of the property  or  not  would  depend  on  whether  the  deceased Kamlashankar Gopalshankar  had ’disposing  power’  over  the share of Mahendraba inherited by him on her death or not?      2. The  above question would depend on the construction of the  joint will-did  it create  any mutuality  among  the executants  of   the  joint   will?   Whether   Kamlashankar Gopalshankar having  accepted  the  benefit  and  after  his wife’s death,  was competent  to do anything contrary to the ultimate bequest?  Before the  death of  the  first  of  the executants,  the   agreement  remained  contractual  one  in consideration of mutual promises. It could have been at that stage revoked  by mutual  agreement or  even  by  unilateral breach, giving  rise at  the most  to an action for damages. But after the death of the first one without revoking his or her own  will  makes  the  joint  will  irrevocable  by  the survivor  (See  Theobald  (supra).  But  there  must  be  an agreement that  the wills  would not  be revoked  after  the death of  one of  the executants  or disposition will not be made contrary  to the  will after  the death  of one  of the executants. Such  an agreement  may appear  from the will or may be  proved outside  the will but that is not established by the  mere fact  that the wills are in identical terms. If such an agreement is shown, each party remain bound.      3. A  different and  separate agreement must be spelled out not  revoke the  will after  the death  of  one  of  the executants. That  agreement must be clear though need not by a 119 separate writing  but must follow as a necessary implication which would tentamount to an express agreement.      4. The  predominant intention  of the executants at the time of  the execution,  after the acceptance of the benefit of the  execution makes the will in this case irrevocable by the survivor of the executants.      5. Judged  by the  principles indicated  above, in  the facts and  circumstances of this case, we are of the opinion because of the specific clause that it was intended that the grandsons would  receive the  benefit in  species and  there being  no   provision  for   making  up  the  deficiency  or diminution if  any, it  must follow that there was mutuality and Kamlashankar  Gopalshankar was  not competent to dispose of the  property in  any manner  contrary  to  the  ultimate disposition.      6. The fact that estate duty was paid is non sequitur.      7.  The   payment  of   wealth  tax   by   Kamlashankar Gopalshankar  on   the  whole  estate  after  the  death  of Mahendraba is not relevant.      8. The  question of  strict construction  of the taxing statute and the principle that one who claims exemption must strictly come  within the  purview is  not relevant  in this case because  the exemption follows on the interpretation of the will.      In that  view of  the matter we are of the opinion that this  was   a  mutual   will.   The   husband   Kamlashankar Gopalshankar received  the benefit  under the will after the death of  Mahendraba. It became irrevocable by him after her death. Therefore he had no disposing power over the share of Mahendraba in the property. In the premises being a ’settled

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property’, estate  duty having been paid on the death of one of the  parties, the  accountable  person  was  entitled  to exemption under  section 29  of the Act. In the premises the High Court was not right in its conclusion.      The appeal  is accordingly  allowed  and  the  judgment under appeal  is set  aside and  the question is answered in the affirmative and in favour of the accountable person. The accountable person is entitled to the costs of this appeal. S.R.                                    Appeal allowed. 120