Facts of the case
Jogesh Chandra Pal, the testator (a person who makes a Will), passed away on January 13, 1984, leaving behind his widow, Parul Bala Das, and seven children—four sons (including Samir Chandra Das, the appellant, and Bibhas Chandra Das, the respondent) and three daughters (Dipti, Jayanti and Sashwati).
In his Will, he excluded the respondent from inheriting any share and appointed Samir and Parul as executors. Before his death, two property sales took place - one in 1983, and another was made in 1988 by Parul and Jayati, counter-signed by Samir. Probate proceedings (legal validation of the Will by the Court) began in 1984, but Parul died in 18.01.1990, while the case was still ongoing. The respondent challenged the Will in 05.04.1990, but the Trial Court upheld it.
However, the Appellate Court ruled that the property was meant for Parul’s lifetime use (lifetime interest), and after her death, it would pass to three sons (excluding the respondent) on the condition that they maintain her for her lifetime. Since Samir counter-signed the sale deed, he violated the Will’s terms and was deemed to have renounced his executorship. With Parul deceased and Samir disqualified, the court ruled that probate could not be granted as there were no valid executors. Samir, aggrieved with this decision, appealed the decision.
Issue before the court
- Whether there has been deemed renunciation of executorship (power of Will execution) by the executor of the Will ?
Judgement
Parul Bala had the authority under the Will to dispose of the property for the welfare and maintenance of the two daughters. The proceeds of the sale went into the gas dealership of the Indian Oil Company, which was in the name of the two daughters.
Therefore, the court held that on the day of the third sale, the daughters and Parul had already inherited the property and considering they were given the power to sell, it could not be said that the executor had taken a contrary stance against the testator (the person who made the Will).
The court also said, “The language of the Section is too clear to be tinkered with. There has to be an upright adherence to the Section before an executor is refused the probate under Section 230”
The court further expressed that, “In a proper case, the Court considering the probate application may, for good reasons, find it not possible to grant the probate to the executor, but in this case, that has not happened”.