LexBHAGWANI KUER (DEAD)& ORS versus TAPESWARI KUER (DEAD) & ORS.
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430 BHAGWANI KUER (DEAD)&: ORS. v. TAPESWARI KUER (DEAD) & ORS. August 20, 1973 [K. K. MATHEW AND M. H. BEG, JJ.] Jndian Succession A.ct, Sec. 141 : "Mani/e31s an intention to act as executor" -What facts c-vnstftute 1na11ifestation-Legac); ·-cOnferred on t!ie execu:or _of a lj(i/I. A made a will giving life interest in his properties to three· daughters·in-Jaw. 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 teFms of the will was •'that on the death of n1e, executan't, 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 pitformed 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 manifesta,ion of an intention to act as an executor on th~ part of S. The two lower Courts held that the intention to a~t as an executor was apparCni from the facts while the High Court held that. since thCre was no evidence of Shradh being performed by S there was no 'manifestation', as required by Sec. 141 of the Indian Succession Act. Dismissin~ the· appe.al. A B c D HELD : There is '.·~ , distinction between the cremation ceremonies and shradh r:eremonies which are periodic. It is also ·Ovident that what the testator desired his executors to do was thac they should perform his shradh ceremonies. E The manner in which the testatc.r has referred ·to S in his will, nlmost as a substitute for a soil, shows that he expected S to Perform his sllradh ceremonies as his own som, who bad pre-deceased him, ·.vould have preformed these. There is no evidenCe whatsoever on record that S ever performed :1Dy such ceremony. The conc1us!on reached by the High Court, therefore. is correct. (433 CJ CML APPELLATE JURISDICTION : Civil Appeal No. 1743 F of 1967. Appeal by Special Leave from th~ judgment and Decree dated 15th October, 1958 of the Patna High trourt in Appeal from Appellate Decree No. 552 of 1953. V. S. Desai and D. Goburdhan, for the appellants. SIJl'joo Prasad, R. K. Jain and E.C. Agarwal, for respondents Nos. 2 to 12. · The J IJ!lgment of the Court was delivered by . BEG, J. Jn this appeal by special leave the short question involv- ed relates to an application of Sec. 141 of tbe Indian Succession Act t<> 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, he shall !not'take the legacy, G H BHAGWANI V. TAPESWARI (Beg /.) 431 A· unless he proves the will or otherwise manifests an intention to act as executor". B . •• "Illustration : A legacy is given to A, who is named an executor. A orders the funeral according to the directions contained in the will, arici 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 C' July, 1912, under which he gave life interests in the properties owned by. him to his three daughtcrs-inclaw Deolagan Kuer, Chapkali Kuer, and Alodhan Kuer. He laid down that, after the death o~ these three ladies, ~ half •hare in the proPcrties would go to the two daugbters 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 D · Sing took part in the cremation c·eremony of Achhaiber Singh. Ap- parently, the members of the family in which Achhaiber Singh had been adopted were not well disposed towards him. It was. therefore, nQt surprising that Shyam Narain Singh, with whom he was well pleas-· ed, shonld light the funeral pyre as his agnate in the absence of his sons who had predeceased him. It has also been fonnd that Chapkali Kue(· and Alodhan Kuer had applied for the probate of the will of Achhaiber. E ! Singh after the death of Shy
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