SAMIR CHANDRA DAS versus BIBHAS CHANDRA DAS & ORS.

Citation: [2010] 6 S.C.R. 528 · Decided: 07-05-2010 · Supreme Court of India · Bench: V.S. SIRPURKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
[2010) 6 S.C.R. 528 
SAMIR CHANDRA DAS 
v. 
BIBHAS CHANDRA DAS & ORS. 
(Civil Appeal No. 4345 of 2010) 
MAY 7, 2010 
[V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA, 
JJ.] 
Succession Act, 1925 - s. 230 - Renunciation of 
C executorship - Form and effect of - Held: s. 230 lays down 
as to how executor renounces his character as an executor -
It should not be given purposive interpretation - There cannot 
be a deemed renunciation - Language of Section is clear and 
cannot be tinkered with - There has to be a scrupulous 
o adherence to the section before executor is refused probate 
u/s. 230 - On facts, properly sold was to go under the Will to 
daughters and wife of testator, with rights to wife to sell the 
property for welfare of unmarried daughters - Executor of Will 
putting his signatures as a witness to sale deed of the properly 
E covered by Will - It cannot be said that executor had taken a 
hostile stance against testator - There was no trace of 
renunciation or deemed renunciation on part of the executor 
- Order of High Courl that probate could not be grantoo in 
favour of executor since there was renunciation on parl of 
F executor, set aside - Also issue regarding renunciation not 
argued before trial courl nor raised by way of written statement 
nor in memo of appeal before High Courl - Matter remanded 
back for decision on merits regarding the valid execution or 
attestation of Will. 
G 
JS died leaving behind his wife, four sons and three 
daughters. He executed a Will and named his wife and 
appellant-son as executors. The respondent-son of the 
testator was not given any share. The testator had 
purchased certain land in the name of his wife and 
H 
528 
SAMIR CHANDRA DAS v. BIBHAS CHANDRA DAS 529 
& ORS. 
daughter J. The said property was given to the widow for 
A 
life and thereafter to the three sons with a condition to 
maintain and bear marriage expenses of the two 
unmarried daughters. The wife was given the right to sell 
the property during her life time for maintenance and 
marriage expenses of her two unmarried daughters. The 
B . 
widow and J executed sale deeds and the same were 
signed by JS and the appellant. Thereafter, the widow 
and the appellant filed application for probate. During 
pendency of the probate proceedings, JS expired. The 
widow and the daughter J sold the remaining land by sale c 
deed. The appellant signed the deed as a witness. The 
sale proceeds were used for running the gas dealership 
for daughter J and S. The respondent opposed the 
probate application. The trial court held that the Will was 
genuine and was validly executed and attested, and 
D 
ordered for grant of probate. The respondent filed an 
appeal and the same was allowed holding that no probate 
could be granted in favour of the appellant. The appellate 
court he!d that the appellant having put his signatures as 
a witness along with his mother on the sale deed in effect 
E 
renunciated his position as an executor. Hence the 
appeal. 
Allowing the appeal, the Court 
HELD: 1.1. The appellate court, 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 having put his signatures as a witness 
along with his mother on the sale deed dated 12.2.1988 
F 
in effect renunciated his position as an executor. The 
G 
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 executorship. 
H 
530 
SUPREME COURT REPORTS 
[201 O] 6 S.C.R. 
A The appellate court also made a reference to ss. 222, 223 
and 230 of the Succession Act, 1925 and came to the 
conclusion that though the appellant had not expressly 
renounced the executorship, yet he had asserted title 
which is hostile to that of the testator and/or acted 
B 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 
c 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 renunciat

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