SAMIR CHANDRA DASversusBIBHAS CHANDRA DAS & ORS.

                        [2010) 6 S.C.R. 528

A                     SAMIR CHANDRA DAS
                                  v.
                 BIBHAS CHANDRA DAS & ORS.
                  (Civil Appeal No. 4345 of 2010)
                            MAY 7, 2010
B
    [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     F
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
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 renunciation of
    the executorship and will refuse to grant probate to such
    executor. The appeal was thus allowed and the suit was
0
    dismissed. [Para 9) [537-E-H; 538-A-B]

       1.2. The appellate court should not have allowed the
  question whether the appellant had, in any manner,
  acquired any disability or had, in any manner, renunciated
E the executorship, to be argued as there was no plea
  raised in the written statement in support of the theory
  of renunciation by widow and the present executor-SC.
  This question was not argued before the trial court nor
  was it raised by way of a written statement nor was it
F raised even in the memo of appeal before the High Court.
  Therefore, the High Court should not have entertained
  such a question. [Para 13] [540-A-B]

       1.3. It was the case of respondent that in the three
G 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; therefore, the widow who was
  an executor was claiming that this property never
H
   SAMIR CHAN.ORA DAS v. BIBHAS CHANDRA DAS . 531
                    & ORS.
   belonged to the testator; a!)d that since the surviving A
   executor-appellant had puChis 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. B
· :The argument .is absolutely incorrect, because 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 out of consideration. Probably realizing c
   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
                                                                0
   had acted as a witness, there was no question of any rival
   or hostile title being set up by the widow and further by
   the instant 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 E
   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 F
   alive. Therefore, the deduction of the High Court that the
   widow and the appellant 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
   onthat day, on those two sale deeds dated 10.10.1983, G
   even the testator had signed as a witness. Insofar as the
   subsequent sale deed dated 12.02.1988 is concerned,
   also there will be no question of taking any hostile stance
   against the testator because the property which was sold
                                                               H
    532     SUPREME COURT REPORTS              [2010] 6 ·s.C.R.


A was clearly given away in the Will in favour of the widow
  and her daughters, and she 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,
B widow and her two daughters had inherited the property
  under the Will, which they sold and they were
  undoubtedly the owners of the properties. Therefore, the
  High Court erred in taking the stand that the executor had
  taken a hostile stance against the testator. Once this
c 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. [Paras 14 and 15) [540-C-H; 541-A-F]

         1.4. The High Court completely misguided itself in
D   stretching the theory of renunciation to its illogical end.
    The provision of s.230 lays down specifically as to how
    the executor renounces his character as an executor.
    That is certainly not to be found here and when the law
    requires a thing to be d9ne in a particular manner, it
E   cannot be done in any other manner. There cannot be
    any concept of deemed renunciation. However, it cannot
    be said that the concerned court has no power to deny
    the probate for good and valid reasons. However, in this
    case, the opinion expressed by the High Court that there
F   was a renunciation on the part of the appellant, cannot
    be accepted. 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 the
    instant case that has not happened. Instead, the High
G   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. It cannot be
    accepted that there was any hostile stand and also that
    there was any such renunciation or deemed renunciation.
H   [Para 18) [543-F-H; 544-A-C]
 SAMIR CHANDRA DAS v. BIBHAS CHANDRA DAS 533
                 & ORS.
     1.5. It cannot be accepted that a purposive             A
interpretation must be given to section 230, so as to find
that there can be a deemed renunciation in terms of that
Section. The language o 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     B
under Section 230. 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. [Paras 19] [544-D-E; 545-B]

     Crystal Developers vs. Asha Lata Ghosh (Smt.) (Dead)
                                                             c
through L.Rs. and Ors. 2005 (9) SCC 375; Krishna Kumar
Bir/a Vs. Rajendra Singh Lodha and Ors. 2008 (4) SCC 300;
Ani/ Kak Vs. Kumari Sharada Raje and Ors. 2008 (7) SCC
695, distinguished.
                                                             D
    Thoppai Venkataramier v. A Govindaraya/ier AIR 1926
Mad. 605; In the goods of Manick Lal Seal (1908) 35 Cal.
156; Sarojini Dasi Vs. Rajalakshmi Dasi AIR 1920 Cal. 874;
Smt. Sailabala Dasi Vs. Baidya Nath Rakshit 1932 CWN 729,
referred to.                                                 E
                      Case Law Reference:
    AIR 1926 Mad. 605        Referred to.       Para 17
    (1908) 35 Cal. 156       Referred to.       Para 17
                                                             F
    AIR 1920 Cal. 874        Referred to.       Para 17
    1932 CWN 729             Referred to.       Para 17
    2005 (9) sec 375         Distinguished      Para 19
                                                             G
    2008 (4) sec 300         Distinguished      Para 19
    2008 (7) sec 695         Distinguished      Para 19
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
, 4345 of 2010.                                              H
    534      SUPREME COURT REPORTS                 [2010] 6 S.C.R.


A       From the Judgment & Order dated 04.11.2008 of the High
    Court at Calcutta in F.A. No. 292 of 2004.

         Jaideep Gupta, Vikramjit Banerjee. Amit Chakrabarti,
    Rishi Maheshwari, Shally Bhasin Maheshwari, for the Appellant.
B       Pradip Kr. Ghosh, Rauf Rahim, Y. Bansal for the
    Respondents.

          The Judgment of the Court was delivered by

          V.S. SIRPURKAR, J. 1. Leave granted.
c
       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
D the present appellant, namely, Samir Chandra Das.

         3. Following factual panorama would clarify the controversy
    herein:

        One Jogesh Chandra Das was the testator. He expired on
E 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
F 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
G 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
H
SAMIR CHANDRA DAS v. BIBHAS CHANDRA DAS                     535
        & ORS. [V.S. SIRPURKAR, J.]
property was given to the widow for life and thereafter to the     A
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 expenses of             B
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      C
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        D
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            E
supported by all excepting Bibhas Chandra Das, the
respondent he~ein. 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.
                                                                   F
     5. As has bee,.n 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 12.0;{ 1988, Parul Bala Das along with her second
daughter Jayanti had sold the remaining two cottahs                G
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.
                                                                   H
    536        SUPREME COURT REPORTS                  (2010] 6 S.C.R.


A      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
B 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
C Bibhas Chandra Das, he had exercised undue influence on his
  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
D 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
E                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.
F
          3.     Whether the will in question was validly executed
                 and attested in accordance with law?

          4.     Whether the petitioner Samir Kumar Das obtained
G                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?

H
 SAMIR CHANDRA DAS v. BIBHAS CHANDRA DAS 537
         & ORS. [V.S. SIRPURKAR, J.]
      6.    What other reliefs, if any is the petitioner entitled      A
            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
                                                                       8
physically fit and mentally 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.
                                                                       c
     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,                D
acquired any disability or had, in any manner, renunciated the
executorsh ip.

      9. The appellate Court, however, did not consider the
matter on merits as is clear in the penultimate paragraph of the       E
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
                                                                       F
interest of the testator, no probate could be granted in their
favour since by their conduct they had renounced the
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               G
not expressly renounced the executors1hip, 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          H
    538      SUPREME COURT REPORTS                   [2010] 6 S.C.R.


A 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
B 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
C   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 may amount to a
    renunciation. As such the Learned Counsel pointed out that such
D   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
E   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
F   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 yvitness to the sale deed of the
G   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
H   sell the property for the welfare of the two unmarried daughters.
SAMIR CHANDRA DAS v. BIBHAS CHANDRA DAS                     539
        & ORS. [V.S. SIRPURKAR, J.]
It was pointed out by learned counsei that in the two sale deeds A
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, B
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 c
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 D
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       E
Lata Ghosh (Smt.) (Dead) through L.Rs. & Ors. [2005 (9) SCC
375], Krishna Kumar Bir/a 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    F
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      G
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.
                                                                   H
    540      SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A      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
B before the Trial Court nor was it raised by way of a written
  statement nor was it raised even 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
C 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
D 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
E 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
F 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 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
G 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
H
  SAMIR CHANDRA DAS v. BIBHAS CHANDRA DAS 541
          & ORS. [V.S. SIRPURKAR, J.]
   dated 10.10.1983. It cannot be presumed that there was any            A
   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            B
   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              c
   10.10.1983, even the testator had signed as a witness. Insofar
   as the subsequent sale deed dated 12.02.1988 is concerned,
   also 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        D
   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       E
   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               F
   appellant herein.

     16. However, since there is no authoritative
 pronouncement, we are proceeding to test the judgment.
                                                                         G
       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. A Govindarayalier [AIR 1926 Mad. 605].
 In that case, the District Judge had refused to grant the probate       H
    542      SUPREME COURT REPORTS                   [2010] 6 S.C.R.


A 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
B 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
c 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
0
  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 further observed that it was quite open
E 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.
F 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
G         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.
H
 SAMIR CHANDRA DAS v. BIBHAS CHANDRA DAS 543
         & ORS. [V.S. SIRPURKAR, J.]
However, she had stated that if the Will was proved to have         A
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         B
attested Will. On this ground, she was refused the probate.
Even the appellate Court had taken a view that she had
renounced her 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       c
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      D
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
                                                                    E
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 F
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 when the law requires a thing
to be done in a particular manner, it cannot be done in any G
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
                                                                    H
    544      SUPREME COURT REPORTS                  [2010] 6 s.C.R.


A 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
B 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
c 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
D and Shri Rauf Rahim, learned advocate urged that we must give
  a purposive 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
E 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
F revocation of probate. The second decision in Krishna Kumar
  Bir/a 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.
G It does not help .ttie 'appellant in the present controversy in any
  manner. The third decision re!ied 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
H
 SAMIR CHANDRA DAS v. BIBHAS CHANDRA DAS 545.
         & ORS. [V.S. SIRPURKAR, J.]
of probate and letter of administration. We do not think that the   A
controversy involved in the present appeal is even distantly
touched by this case.

     20. In the result, the appeal succeeds. The order of the
appellate Court is set aside and the matter is remanded back        8
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/-.

N.J.                                           Appeal allowed.