“REPORTABLE”

IN THE 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   

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. Challenge in this appeal is to the Division Bench Judgment of  

the  Calcutta  High  Court  wherein  the  appeal  filed  by  respondent  

herein,  namely,  Bibhas Chandra Das was allowed holding that  no  

probate could be granted in favour of the present appellant, namely,  

Samir Chandra Das.

3. Following  factual  panorama  would  clarify  the  controversy  

herein:

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One Jogesh Chandra  Das was the  testator.   He expired  on  

13.01.1984 leaving his widow Parul Bala Das and four sons Samir  

Chandra  Das,  Subhash  Chandra  Das,  Bibhas  Chandra  Das  and  

Anjan Das.  He had three daughters also, namely, Dipti, Jayanti and  

Sashwati.  In his Will dated 14.08.1983, he named his widow Parul  

Bala Das and Samir Chandra Das as the executors.  By this Will,  

however, Bibhas Chandra Das was not given any share.  The house  

property at Harish Mukherjee Road was to go to his wife Parul Bala  

Das with life interest without any right to sell, mortgage etc., and after  

her death, to his three sons, namely, Samir Chandra Das, Subhash  

Chandra Das and Anjan Das. He had also desired that the right of  

residence  would  be  available  to  his  two  unmarried  daughters,  

namely, Jayanti and Sashwati.  It was also mentioned in the Will that  

the testator had purchased a piece of land in the name of his wife and  

second daughter who was polio affected.  This property was given to  

the  widow for  life  and thereafter  to  the  three sons of  the  testator  

excluding Bibhas Chandra Das on the condition that the three sons  

would  bear  the  maintenance  and  marriage  expenses  of  the  two  

unmarried daughters for which the wife Parul Bala Das had specific  

authority  to  sell  the  land  even  during  her  life  time  to  meet  the  

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expenses of maintenance and marriage of the two daughters, if the  

three sons did not bear the same.     

4. Two sale deeds were executed by Parul Bala Das and Jayanti  

whereby 5 cottahs of land out of 7 cottahs purchased earlier by the  

testator in the ‘benami’ of Parul Bala Das and Jayanti was sold on  

10.10.1983.   It  is  to  be  mentioned  that  these  sale  deeds  were  

countersigned by Jogesh Chandra Das as also Samir Chandra Das.  

The remaining two cottahs of land was sold by Parul and Jayanti by  

sale deed dated 12.02.1988.  The sale proceeds are alleged to have  

been used for running the Indian Oil Corporation Gas Dealership for  

Jayanti  and Sashwati.   On 17.07.1984 an application  came to  be  

made  for  probate  by  Samir  Chandra  Das  and  Parul  Bala  Das.  

However,  during  the  pendency  of  the  probate  proceedings,  Parul  

Bala  Das  expired  on  18.01.1990.   This  probate  application  was  

supported  by  all  excepting  Bibhas  Chandra  Das,  the  respondent  

herein.   Since the probate became contentious,  the application for  

probate  was  refiled  on  22.01.1986  and  the  proceedings  were  

renumbered as Original Suit No. 6 of 1986.   

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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  

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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?

2. Had the testator sound disposing state of mind to  execute  the  Will  i.e.  whether  the  testator  was  physically  fit  and  mentally  sound  and  alert  to  execute the will.

3. Whether  the will  in question was validly executed  and attested in accordance with law?

4. Whether the petitioner Samir Kumar Das obtained  the alleged Will by exercising undue influence over  the testator?

5. Whether the petitioner/plaintiff is entitled to an order  of probate over the Will in question?

6. What  other  reliefs,  if  any is  the  petitioner  entitled  to?”

7. After the evidence, the trial Court came to the conclusion that  

the Will was genuine and the testator had the sound disposing state  

of mind to execute the same since he was physically fit and mentally  

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sound and alert.  It was also held that the Will in question was validly  

executed and attested.  It was found that the Will was free from any  

undue influence much less from Samir Chandra Das.   In that view,  

the Court ordered grant of probate.   

8. An  appeal  was  filed  on  various  grounds.   We  scanned  the  

grounds  in  appeal  very  carefully  which  mainly  pertained  to  the  

grounds raised in the written statement.  In the grounds raised in the  

appeal, we do not find a single ground to the effect that the executor  

Samir Chandra Das had, in any manner, acquired any disability or  

had, in any manner, renunciated the executorship.   

9. The appellate Court, however, did not consider the matter on  

merits as is clear in the penultimate paragraph of the judgment.  The  

Court, however, wrote a finding that the appellant herein having put  

his signatures as a witness along with his mother on the sale deed  

dated 12.2.1988 in  effect  renunciated his  position as an executor.  

The  appellate  Court  also  wrote  a  finding  that  both  the  executors  

having espoused an interest over the subject matter of the Will which  

was  adverse  to  the  interest  of  the  testator,  no  probate  could  be  

granted in their favour since by their conduct they had renounced the  

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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  

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may amount to a renunciation.  As such the Learned Counsel pointed  

out  that  such renunciation has to be in writing duly signed by the  

person  renouncing.   Under  these  two  conditions,  the  person  

renouncing is precluded from applying for probate of the Will in which  

he  is  appointed  as  an  executor.   He  argued  that  the  concept  of  

“implied renunciation” is not known to the law or is not to be found  

anywhere in the Indian Succession Act.  Learned counsel, therefore,  

argued that when the statute mandates through a specific provision  

the manner and the conditions for the renunciation, the Court could  

not have found out a different way of renunciation.  Learned counsel  

argued  that  when  the  statute  provides  for  the  manner  and  the  

conditions for  renunciation  then the  renunciation  could be ordered  

only on the fulfillment of the conditions and not in any other manner.  

Learned counsel further argued that even on the facts the Court erred  

in holding that in putting the signatures as a witness to the sale deed  

of the property covered by the Will it can be said that the executor  

had  acted  hostile  to  the  testator  or  had  acted  contrary  to  the  

directions  contained in  the  Will.   According  to  him,  ultimately  that  

property which was sold was to go under the Will to the daughters  

and the wife of the legatee Parul Bala, with rights to sell the property  

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for the welfare of the two unmarried daughters.  It was pointed out by  

learned counsel that in the two sale deeds dated 10.10.1983 even the  

testator had put his signatures along with the present executor Samir  

Chandra Das, though the Will  had already come into existence on  

that date.  According to the learned counsel, those two sale deeds,  

therefore, were absolutely innocuous.  In so far as the third sale is  

concerned, the property was to go to Parul Bala and her daughters  

and further, Parul Bala had the authority under the Will to dispose of  

the property for the welfare and maintenance of the two daughters.  

Learned counsel was at pains to point out that the gas dealership of  

the IOC was arranged from the consideration in the name of the two  

unmarried daughters.  He pointed out that, therefore, there was no  

question of the executor having acted hostile to the interests of the  

testator  or  even  for  that  matter  the  other  legatees  who  had  no  

concern with such property.  Learned counsel, therefore, argued that  

even on merits there was no question of such a finding.

11. As  against  this,  Shri  Pradip  Kumar  Ghosh,  learned  Senior  

Advocate and Shri  Rauf  Rahim,  learned advocate argued that  the  

judgment was correct.    Three decisions were relied upon by Shri  

Ghosh,  being  Crystal  Developers  Vs.  Asha  Lata  Ghosh  (Smt.)   

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(Dead) through L.Rs. & Ors. [2005 (9) SCC 375], Krishna Kumar   

Birla Vs. Rajendra Singh Lodha & Ors. [2008 (4) SCC 300]  and  

Anil  Kak Vs. Kumari  Sharada Raje & Ors. [2008 (7) SCC 695].  

Shri Ghosh also argued that we must give purposive interpretation to  

Section  230  of  the  Indian  Succession  Act.   He  also  argued  that  

though Section 223 specifically provides for the disqualification of the  

persons to whom the probate could be granted, we must read that  

Section along with Section 230 to hold that there could be a deemed  

renunciation and the Court could under the circumstances deny the  

probate to such an executor who had in fact impliedly renounced his  

character as an executor.   

12. On  these  rival  contentions,  it  has  to  be  seen  whether  the  

judgment is correct.

13. In  the  first  place,  we  must  observe  that  the  appellate  Court  

should not have allowed this question to be argued as there was no  

plea  raised  in  the  written  statement  in  support  of  the  theory  of  

renunciation by widow Parul  Bala and the present  executor  Samir  

Chandra Das.  This question was not argued before the Trial Court  

nor was it raised by way of a written statement nor was it raised even  

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in  the  memo  of  appeal  before  the  High  Court.   In  our  opinion,  

therefore,  the  High  Court  should  not  have  entertained  such  a  

question.

14. On merits, it was the case of respondent herein that in the three  

sale  deeds,  two  of  which  were  executed  before  the  death  of  the  

testator and one after his demise during the pendency of the probate  

proceedings  the  properties  were  claimed  to  be  the  self  acquired  

properties of the widow and the second daughter.  It was argued that,  

therefore,  the  widow who was  an  executor  was claiming that  this  

property never belonged to the testator.   The further case was that  

since  the  surviving  executor  Samir  Chandra  Das  had  put  his  

signatures as a witness to the sale deeds, he also must be deemed  

to have accepted the recitals in the sale deeds to the effect that it was  

a  self  acquired  property  of  the  widow  and  the  second  daughter  

thereby disputing the title of the testator.   

15. The  argument  is  absolutely  incorrect,  firstly,  for  the  simple  

reason that at the time of first two sale deeds, even the testator had  

put his signatures as a witness and as he was alive on that day, the  

Will was irrelevant.  Therefore, those two sale deeds will naturally go  

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out of consideration.  Probably realizing this, the High Court made a  

stray remark in the judgment to the effect that “one of it was executed  

during the pendency of the probate application”.  Now, if the earlier  

two sale  deeds  which were  dated  10.10.1983 and  were  executed  

during  the  lifetime  of  the  testator  and  he  himself  had  acted  as  a  

witness, there was no question of any rival or hostile title being set up  

by  Parul  Bala  and  further  by  the  present  appellant  who  put  his  

signatures as a witness along with his father, the testator on the sale  

deeds dated 10.10.1983.  It cannot be presumed that there was any  

idea of setting up a hostile title.  The remaining property which was  

sold  on  12.02.1988  i.e.  during  the  pendency  of  the  probate  

application was admittedly a part of the aforementioned property, part  

of which was sold on 10.10.1983 by two sale deeds.  Basically, on  

10.10.1983, the Will had never become effective as the testator was  

alive.  Therefore, the deduction of the High Court that Parul Bala Das  

and Samir Chandra Das had taken a stance against the testator is  

clearly faulty.  On that day, this position was absolutely not available.  

This is apart from the fact that on that day, on those two sale deeds  

dated 10.10.1983, even the testator had signed as a witness.  Insofar  

as the subsequent sale deed dated 12.02.1988 is concerned, also  

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there  will  be  no question  of  taking  any hostile  stance against  the  

testator because the property which was sold was clearly given away  

in the Will in favour of Parul Bala Das and her daughters, and Parul  

Bala  Das  also  was  given  the  right  to  sell  the  property  for  the  

maintenance  and  marriage  expenses  of  her  two  unmarried  

daughters.  Therefore, at least on that day, when the sale deed was  

executed, Parul Bala Das and her two daughters had inherited the  

property under the Will, which they sold and they were undoubtedly  

the owners of the properties.  We must, therefore, hold that the High  

Court erred in taking the stand that the executor had taken a hostile  

stance against the testator.  Once this position on facts is obtained,  

there  is  no  question  of  further  considering  the  correctness  of  the  

probate  holding  that  there  was  an  “implied  renunciation”  by  the  

appellant herein.

16. However,  since  there  is  no  authoritative  pronouncement,  we  

are proceeding to test the judgment.

17. Our  attention  was  invited  by  Shri  Jaideep  Gupta,  Learned  

Senior  Counsel  appearing  on  behalf  of  the  appellant,  firstly  to  a  

decision of the Madras High Court in (Thoppai) Venkataramier Vs.  

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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  

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further  observed  that  it  was quite  open  to  the  executor  to  take  a  

position  taken  by  the  appellant.   Further  relying  on  a  reported  

decision in Sarojini Dasi Vs. Rajalakshmi Dasi [AIR 1920 Cal. 874],  

the statements of the appellant were held not to be the renunciation.  

The other decision relied upon by the Learned Senior Counsel was  

Smt.  Sailabala Dasi Vs. Baidya Nath Rakshit  [1932 CWN 729],  

where the Calcutta High Court specifically held that:-

“disputing the Will  by an executor  is no ground for  which  the  Court  is  authorized  to  refuse  grant  of  probate to such executor when, later, he asks for it.”

In this decision also, the appellant was joined as the opposite  

party  as  she,  though  was  a  named  executor,  did  not  apply  for  

probate.  She also filed a petition, but she did not admit the Will or the  

proper execution and attestation thereof.  However, she had stated  

that  if  the  Will  was  proved  to  have  been  properly  executed  and  

attested, she was willing and claimed to get the probate as executrix.  

The question  regarding  due execution  of  the  Will  was fought  out.  

Even in her evidence, the appellant had disputed the genuineness of  

the Will.  However, the Will was held to be a valid, duly executed and  

attested Will.  On this ground, she was refused the probate.  Even the  

appellate  Court  had  taken  a  view  that  she  had  renounced  her  

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executorship.  It was held by the appellate Court that after repudiating  

the  Will,  the  person  could  not  turn  around  and  say  that  he  was  

entitled to probate.  Referring to Section 230 of the Indian Succession  

Act, it was held that even under these circumstances, Section 230  

was  not  applicable  and  the  said  Section  was  bound  to  be  read  

alongwith  Section  229  and  reading  the  two  together,  unless  the  

executor  has  renounced  his  executorship,  the  probate  cannot  be  

refused to him/her.   It  was clarified that  Section 230 refers  to the  

manner of renunciation in such a case.  It was held that even under  

the circumstances of the case, the appellant was entitled for probate.  

When we consider  the position obtained in  the present  case,  one  

thing is clear that the situation here was nowhere comparable to the  

one obtained in the above two decisions.  In fact, there was not even  

a trace of renunciation on the part of the appellant herein, not even  

remotely.

18. We  have  already  explained  the  factual  situation  and  in  our  

opinion, the High Court completely misguided itself in stretching the  

theory of renunciation to its illogical end.  The provision of Section  

230  lays  down specifically  as  to  how the  executor  renounces  his  

character as an executor.  That is certainly not to be found here and  

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when the law requires a thing to be done in a particular manner, it  

cannot  be  done  in  any  other  manner.   The  concept  of  deemed  

renunciation,  as  found by the  High Court,  does not  appeal  to  us,  

much less on the factual  background of  the present  case.   There  

cannot be a deemed renunciation.  However, we must hasten to add  

that we do not even for a moment say that the concerned Court has  

no power to deny the probate for good and valid reasons.  However,  

in this case, we cannot subscribe to the opinion expressed by the  

High Court that there was a renunciation on the part of the appellant.  

In a proper case, the Court considering the probate application may,  

for good reasons, find it not possible to grant the probate to executor,  

but in this case that has not happened.  Instead, the High Court wrote  

a finding that the executor had renounced himself and he is deemed  

to have renounced on account of the so-called hostile stand taken by  

him.  We do not agree that there was any hostile stand.  We do not  

further  agree  that  there  was  any  such  renunciation  or  deemed  

renunciation.  We further do not agree that there can be any concept  

of deemed renunciation.

19. Shri Pradip Kumar Ghosh, learned Senior Advocate and Shri  

Rauf Rahim, learned advocate urged that we must give a purposive  

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interpretation  to  Section  230,  so  as  to  find  that  there  can  be  a  

deemed renunciation in terms of that Section.  We do not agree.  The  

language of the Section is too clear to be tinkered with.  There has to  

be  a  scrupulous  adherence  to  the  Section  before  an  executor  is  

refused the probate under Section 230.  The Learned Advocates then  

tried to  rely  on a decision in  Crystal  Developers Vs.  Asha Lata  

Ghosh (Smt.) (Dead) through L.Rs. & Ors. [2005 (9) SCC 375].   

This case was entirely different on facts.  It pertains to the subject of  

revocation of probate.  The second decision in Krishna Kumar Birla  

Vs. Rajendra Singh Lodha & Ors. [2008 (4) SCC 300] is also of no  

consequence.   It  is  basically  regarding  the  subject  of  caveatable  

interest and mainly turns on the fact as to why the appellant could not  

be said to have a caveatable interest.  It does not help the appellant  

in the present controversy in any manner.  The third decision relied  

on by the learned Advocates was  Anil  Kak Vs. Kumari  Sharada  

Raje  &  Ors.  [2008  (7)  SCC  695]  to  which  one  of  us  (Hon’ble  

Sirpurkar, J.) was a party.  That was again the decision rejecting the  

two applications for grant of probate and letter of administration.  We  

do not think that the controversy involved in the present appeal is  

even distantly touched by this case.

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20. In the result, the appeal succeeds.  The order of the appellate  

Court is set aside and the matter is remanded back to the appellate  

Court  for  decision  on  merits  regarding  the  valid  execution  or  

attestation  of  the  Will.   The  appeal  succeeds  with  the  costs  of  

Rs.25,000/-.

.……………………………J.    [V.S. Sirpurkar]

.……………………………J.      [Dr. Mukundakam Sharma]

New Delhi; May 7, 2010.

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