Full Judgment Text
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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