DILHARS!IANKAR C. llHACllECHA v.

THE CONTROLLER OF ESTATE DUTY, AHMEDABAD

JANUARY 8, 1986

[V.D. TULZAPURKAR AND SABYASACHI MUKHARJI, JJ.]

Estate Duty Act, 1953 sections 2(15), 2(16), 2(19), 6 and 29 - Interpretation of the words "paid" and "since" in section 29 - Joint will and mutual will - Conditions necessary to render mutual will irrevocable - The theory of contemporaneous exposition and construction of the will in question.

The appellant Dilharshankar c. Bhachech being one of the grand-sons of the deceased Kamlashankar Gopalshankar and a legatee under a joint will of his grand parents is the accountable person under the Estate Duty Act,

1953. The deceased and his wife Mahendraba each possessed certain properties which were of their own individual ownership. They were also jointly possessed of certain properties including a bungalow known as "Dilhar Dwar" - situated in the Ellisbridge area of Ahmedabad. On 24th December, 1950 the deceased and his wife had made a joint will in respect of the said bungalow.

Mahendraba, one of the executants of the joint will died on 3rd January, 1954. On the death of Mahendraba, estate duty on her share of the property which passed on her death to her husband Kamlashankar has been duly paid. Kamlashankar the other executant to the joint will died, thereafter on 25th October, 1964. Upon his death, the appellant-cum-accountable person-cum-sole executor and trustee paid estate duty to the remaining extent of 50% on the properties as mentioned in the joint will of the deceased Mahendraba and Kamlashankar. The appellant accountable persons in the returns filed contended;

(i) since the property in question was settled by the joint /~ will in favour of the grandsons and since duty .had been paid on the death of one of the joint executants to the will, duty on the second death of the deceased was not payable on the whole estate by virtue of the provisions of section 29 of the Estate Duty Act; (ii) that on a true construction of the will, the deceased was neither at the time of his death nor any time -I during the continuance of the settlement, the full owner of the share of the property of Mahendraba because he had only a

D.C. BHACHECH v. THE CONTROLLER 95

""\ life interest therein to receive rents and profits from that share, and therefore, exemption contempfated by section 29 of the Act came into force and hence no estate duty with regard to the share of Mahendraba on the death of the deceased Kamlashankar arose for the second time. The Revenue was of the opinion that on the death of Mahendraba, the wife, her husband had become the sole owner of the property in question, as is evident from the wealth tax returns filed by him and therefore, exemptions under section 29 of the Act cannot be ""' claimed.

Both the Assistant Controller of Estate Duty Ahmedabad as well as the Appellate Controller held against the accountable person, taking the view that section 29 of the Estate Duty Act was not applicable. Full amunt of the Estate Duty was collected from the accountable person •. In an appeal before the Tribunal, the Tribunal on the construction of the will held in favour of the accountable person, for the reason that Kamlashankar did not become the full owner of the share of the property of Mahendraba on her death.

At the instance of the Revenue the Tribunal referred the matter to the High Court of Gujarat. While refusing to interpret the word "since" narrowly as contended by the Revenue, the High Court, however, answered on the construction of the will in its favour holding that "there was no agreement of irrevocability and the survivor took an absolute interest in the whole of the property and as such section 29 would have no application to the facts of the case. Hence the appeal by certificate.

Allowing the appeal by certificate;

Allowing the appeal, the Court

HELD: l The interpretation sought for by the Revenue was highly artificial and against the spirit of section 29. Looking at the language and the spirit of section 29 of the Estate Duty Act, 1953, it was clear that the expression "If the estate duty has already been paid -- since the date of the G settlement", occurring in the first part thereof, meant "if the estate duty has become payable or has been paid .either simultaneously wi.th the creation of the settlement or at any time thereafter." The dictionary meaning of the word 'r "since" is wide enough. Section 29 comes into operation only on the death of the surviving spouse, the obvious intention of H

the Legislature in framing the section being to avoid double >- duty. Even if the word "paid" was used in wider context and not in the literal sense, it could not be interpreted as excluding its literal meaning, namely, the actual fact of payment having already been made. Here, on the facts, the duty had been "paid" since the date of the settlement. [104 A-El Coutts & Co. v. Inland Revenue Comissioner (1962] 2 All E.R. 521 at 527 quoted with approval. 1.2 Whether a person in "competent to dispose of'' of the property and within the meaning of section 6 of the Estate r Duty Act, 1953, would naturally depend on the terms and conditions under which the property is either acquired or inherited. The expression "competent to dispose of" llllSt bear the ordinary meaning in the English language. A person shall be deemed to be competent to dispose of the property if he has every power or authority enabling the donee or other holder thereof to appoint or dispose of the property as he thinks fit. [118 DJ 1.3 The question of strict construction of the trucing statute and the principle that one who claims exemption must > strictly come within the purview is not relevant in the instant case because the exemption follows on the interpretation of the will. In the instant case whether the deceased Kamlashankar had the disposing power over the share of the property of Mahendraba, his wife, acquired by him would depend not on how he has treated it but the true effect of the will.

There is no question of contemporaneous conduct because the conduct of one of the parties subsequent to the death of one of the executants long after the execution of the will cannot be described as contemporaneous conduct. The question of "contemporaneous exposition" by conduct of the parties in the facts of this case does not arise. (119 E; 116 B-C] ~

2.1 A joint will is a single testamentary instrument containing the wills of two or more persons and jointly executed by them, while mutual wills are separate wills of two or more persons which are reciprocal in their provisions and executed in pursuance of contract or agreement between two or mor.e persons to dispose of their property to each other or to third persons in particular mode or manner. Mutual wills as distinguished from joint wills are sometimes described as reciprocal wills. In order to render mutual will irrevocable, ._,-

D.C. BllACHECH v, THE CONTROLLER 97

])oth the conditions lllllst be' concurrently satisfied: (a) that the surviving testator 11111st have received benefits from the deceased under the miitual will; (b) the 1111tual wilis should have been executed in pursuance of an agreement that the testator shall not revoke the llllltual wills. Such an agreement not. to revoke the wills may either appear from the wills

the11Belves or may be proved outside the wills, but that is not established by .the mere fact that the wills are in identical terms. If such an agreement is shown, each party remain bound.

[113 D-F; 114 A-C]

A different and separate agreement 11111st be spelled out not to revoke the will after the death of one of the executants. That agreement must be ciear, though need not be by a separate writing but must follow as a necessary implication which would tantamount to an express agreement. [118 H;

119 A] 2.2 In the instant case it is clear;

(a) The will in question was a mutual will; [108 Bl

(b) Reading the different clauses of the said will it was manifest that the intention was to .keep the prorerty as it was at the time of execution of the will so that the ultimate beneficiaries and the grandsons might enjoy the property with

sue~ modifications as the contingencies of time and situation might require; [108 A-BJ

(c) Before the death of the first of the executants, the agreement remained contractual one in consideration of mutual promises. It could have been at that stage revoked by llllltual agreement or even by unilateral breach, giving rise at the most to an action for damages. But after the death of first one without revoking his or her own will makes the joint will irrevocable by the survivor. But there lllllst be an agreement that the wills would not be revoked after the death of one of the executants or disposition will not be made contrary to the will after the death of one of the executants; [109 C-D, E]

(d) The predominant intention of the executants at the time of the execution, after the acceptance of the benefit of the execution makes the will in this case irrevocable by the survivor of the executants; [119 A-B]

(e) In the facts and circumstances of this case, because of the specific clause that it was intended that the grandsons

would recel.ve the benef1.t i.n species and then bei.og no provision for making up the def1.ciency or di.minuti.on i.f any, J.t must follow that there was llll1tuality and Kamlashankar was not competent to di.spose of the property in any manner contrary to the ulti.mate di.sposi.tion; (119 B-C]

(f) The fact that estate duty was pai.d is non sequi.tur.;

[119 D]

(g) 'The payment of weslth-tax by Kamlashankar Gopalshankar. on the whole estate after. the death of Mahendr.aba is no relevant; and [119 D]

(h) The huaband Kamalshankar. received the benefi.t under the will after the death of Mahendr.aba. It became i.r.r.evocsble by him after. her. death with the result that he had no di.sposing power. over. the shar.e of Mahendr.aba i.n the pr.oper.ty. In the pr.emi.ses being a "settled pr.oper.ty" estate duty havi.ng been pai.d on the death of one of the par.ties, the accountable per.son was entitled to exempti.on under. section 29 of the Act •.

[119 F-G]

Dufour. v. Per.ei.ra, [1769] 21 E, R. 332; In re: 01.dbaa, 1925 Ch.75; Gray v. Perpetual Trustee Co. Ltd. (1928] A.c. 391 at 399 & 400; Re Parsons, Parsons v. Attor.ney-General, [1942] 2 All E.R. 496; and Bhavmd. Prasad v. Smt. Surendra Bala W/o Suboclh Qiandra and Anr. A, I.R. 1960 Allahabad 126 discuased and distinguished.

KuppullWSlli Baja V• PelUlllal Baja A.I.R. 1964 Madras 291 approved.

CIVIL APPELLATE JURISDICTION : CJ.vll Appeal No, 679 (NT)

of 1974.

From the Judgment and order dated 19/20-12-73 of the G.ujarat High Court J.n Estate Duty Reference No.2 of 1972,

v.s. Desai., DHhar C. Bhachech, NaunJ.t Lal, Kailash Vasu- _dev and Mrs. VJ.nod Arya for the Appellant,

S.C. Manchanda, c.M. Lodha and Miss.

A. Subhashi.nl. for the Respondent.

The Judgment of the Court wes deUvered by

SABYASACHI MUKHARJI, J, In thi.s appeal by certlfl.cate by -{ the HJ gh Court under artlcle 133(1) of the ConstitutJ.on

D, C. BHACHECH v. 1llE CONTROLLER [SABYASACHI MUKHARJI, J,) 99

1 . aga.!.nst the judgment and or.der. of the IU.gh Cour.t of Gujarat dated 19/20th December, 1973 l.n Estate Duty Reference No. 2 of 1972, the question l.nvolved l.s regardlng exemptl.on from estate duty under. sectl.on 29 of the Estate Duty Act, 1953 (her.el.nafter called the 'Act'), whl.ch contemplates exempti.on from duty in cases where estate duty has been paid on settled property on the death of one of the par.Hes to a marrl.age.

The appellant ls the accountable per.son and he ls related to the deceased Shrl.

Kamlashankar.

Gopslshankar.

~. Bhachech as one of his grand sons. Deceased Kamlashankar

Gopslshankar. died on 25th October., 1964. The deceased had a wife named Mahendraba Kamlashankar. Bhachech. The deceased and his wl.fe each possessed certal.n proper.Hes whl.ch were of thel.r own i.ndivl.dusl or.shl.p. They wer.e also joi.ntly possessed of certain propertl.es includl.ng a bungalow known as 'Dilhar llwar' - sltusted i.n the Ellis bddge ar.ea of Ahmedabad. The dl.spute in the r.efer.ence out of which this appeal arose was wi.th r.egar.d to estate duty leviable on 1/2 share of the wi.fe of the deceased l.n the said bungalow and the land apper.tal.ni.ng thereto. ·

On 24th December, 1950, the deceased and hl.s wi.fe had made a jol.nt will l.n respect of the sal.d bungalow. They also made separ.ate wi.lls wl.th r.egard to their lndl.vl.dually owned pr.oper.tl.es on the same date with whl.ch thl.s appeal ls not concerned.

The aforesaid bungalow is sl.tuated on Plot No. 825 and .appertal.nl.ng to Its mai.n structure there ar.e blocks beadng

Nos. 48/2 to 48/6, In addi.tl.on to the blocks, there l.s a gar.age, a bath r.oom and two latr.l.nes as also some open compound land apper.tal.nl.ng to the mal.n str.uctur.e. All these pr.aper.ti.es wer.e disposed of by the jol.nt wi.ll executed by the ·• deceased and hl.s wi.fe. The relevant por.tl.on of the jol.nt wl.ll is as under.:-

"Dur.Ing our. li.fe tl.me we shall conti.nue , to be jol.nt owner.a of the land bungalow and blocks wl.th thel.r. common bath r.oom and two prl.vl.es l.ncludl.ng the G gar.age bear.Ing No. 48/1 and shall be joi.ntly entl.tled to the r.ents and Income of the said land and blocks and the user. and r.ent of the bungalow.

After the death of one of us, the sur.vl.vor. shall become the owner. of the said land bungalow and H

blocks J.nCluding the garage No. 48/1 wHh the said .• bath room and privies and shall become enti.tled to the rents and Income and user of the said land bungalow and blocks including garage No. 48/ 1 and the bath room and pri.vles, The provi.si.ons hereinafter contal.ned shall become effective after the death of the survivor of us.

After the death of the survivor of us, hereby devise and bequeath our said furru shed Bungalow includi.ng all things, articles, fumHure, utensils, fi.xtures etc. r together wJ th the porti.on of the land and compound walls deH.neated on the plan hereto annexed and coloured red and marked 'B' to our grandson Dl.lharshankar Chl.ntanvanshankar Bhachech.

We hereby devis.e the bequeath our block Nos. 48/2 to 48/6 Including garage beari.ng No. 48/1 wJ.th the said bath room and pri.vles together wJ.th the porti.on of the land and compound walls dell.nested on the plan hereto annexed and coloured blue and marked 'C' to

our Grandson SnehHshankar Chintavanshankar Bhachech. We hereby devise and bequeath the portl.on of the open land and the compound walls deHneated on the plan hereto annexed and coloured green and marked 'A' to our grandson Hasi.tshankar Drupadshankar Bhachech.".

Mahendraba Kamlashankar Bhachech one of the executants of the Joint Wl.11 died on 3rd January, 1954. On the death of Mahendraba, estate duty on her share of the property wl:ll.ch passed on her death to Kamlashankar Gopalshankar has been duly paid. TW.s ls an admi.tted positi.on. Kamlashankar Gopalshankar died, thereafter, on 25th October, 1964. Upon lll.s death, the appellant cum accountable person cum sole executor and trustee "' paid estate duty to the remai.ning extent of 50% on the properties menti.oned in the above menti.oned joint wJ.ll of the husb.and and the wJ.fe. The case of the revenue was that on the death of Mahendraba, the wl.fe, the deceased Kamlashankar Gopalshankar, the husband, had become the sole owner of the property i.n questi.on and that he had filed his wealth ta.x returns accordi.ngly. The case of the appellant-accountable person was that since the property in questi.on was settled by the joi.nt wl.ll in favour of the grandsons and si.nce duty had been paid on the death of one of the joint executants to the --{ wl.11, duty on the second death of the deceased was not payable on. the whole estate by vfrtue of the provisi.ons of secti.on 29

D, C, BHACllECH v;· THE CONTROLLER [SABYASACHI MUI<HARJI, J,] 101

of the Act. It was further contended that on a true construe- -\ ti.on of the wHl, the deceased was nefther at •the time of his

death nor any time during the conti.nuance of the settlement, the full owner of the share of the property of Mahendraba because he had only a ll.fe Interest therein to receive rents and profl.ts from that share, and, therefore, exempti.on contemplated by sectl.on 29 of the Act came Into force and the revenue was not entitled to levy any estate duty w:i.th regard to the share of Mahendraba on the death of the deceased, Kamlashankar Gopalshankar. The questi.on, therefore, that arose ~. before the revenue authoriti.es as well aa the Hl.gh Court, was,

whether the appellant herel.n was Hable to pay estate duty on 1/2 share whl.ch the deceased possessed or on the whole including the share which the w:i.fe of the deceased had l.n the property.

Both the Assl.stant Controller of Estate Duty, Ahmedabad as well as the Appellate Controller held against the accountable person and further held that sectfon 29 of the Act was not appll.cable. Full amount of the estate duty was collected

'-{ from the accountable person, There was an appeal before the Tribunal. The Trl.bunal on the conatrucdon of the w:i.ll held in favour of the accountable person. The Tribunal held that the deceased Kamlashankar Gopalshankar dl.d not become the fUll owner of the share of the property of Mahendraba on 'her death, At the instance the revenue, the Td.bunal referred the follow:ing questi.on of law to the Hl.gh Court:

''Whether, on the facts and l.n the cl.rcumstances of the case, the Tribunal was right ln holding that the respondent is endtled to the full benefl.t conferred by sectl.on 29 and that as such no estate duty in respect of the half share l.n the joint

..< property whl.ch orl.ginally belonged to late Mahendraba, the wife of the deceased l.s payable by the respondent?" The aforesal.d reference was answered by the Hl.gh Court in favour of the respondent by its judgment and order dated 19/20th December, 1973 and gave a certl.fl.cate of fl.tness of appeal to this Court. · It, l.s necessary l.n thl.s connecti.on to refer to sectl.on 29 of the Act which reads as follows:

• c

"Settled property Jn respect of whl.ch slnce the idate of the settlement estate duty has been pal.d on the death of the deceased'• spouse.

29. If estate duty has already been pald Jn respect of any settled property since the date of the settlement, on the death of one of the partles to a mardage, the estate duty shall not be payable Jn

respect thereof on the death of the other party, to the mardage, unless the latter was at the tlme of hl.s death, or had been at any tl.me during the contlnuance of the settlement, competent to dl.spose of such property, and, H on his death subsequent Hnrl.tatlons under the settlement take effect ln respect of such property, was sul juds at the tlme of lrls death, or had been sul jurls at any time wlrl.le so competent to di.spose of the property."

'Settled property' has been defined Jn sectlon 2(19) of the Act as follows:- ).

"2.

In thls Act, unless the context otherwi.se requlres,- x x x x x

x x x x x

(19) "settled property" means property whl.ch stands li.nrl.ted to, or in trust for, any persons, natural or juddl.cal, by way of successfon, whether the settlement took effect before or after the comnencement of thls Act; and "settlement" mearup._ any dlsposJ.tl.on, l.ncludlng a dedl.catlon or endowment, whereby property Is settled." Sectlon 2(15) states:

"'Proper.ty 1 1.ncludes any J.nterest ln property, movable or lumovable, the proceeds of sale thereof and any money or investment for the ti.me being representlng the proceeds of sale and also species i.nto another by any methos." Sectlon 2(16) states:

"'Property passlng on the death' includes property~ passlng elther foJUediately on the death or after

D.C. BHACllECH v. THE CONTROLLER [SABYASACHI MUKHARJI, J.] 103

any Jnterval, elther certal.nly or contJ.ngently, and el.ther orl.gl.nally or by way of substl.tutlve llml.tat:f.on, and "on the death" :f.ncludes "at a per:i.od ascertainable only by reference to the death." Sectl.on 5 provldes for levy of the estate duty J.n the case of every person dyl.ng after the coDJDencement of the Act . upon the prJ.ncl.pal value ascertal.ned Jn the manner stl.pulated

thereln. Sectlon 6 states that the property whJ.ch the deceased was at the tl.me of hl.s death competent to dl.spose of shall be deemed to pass on hl.s death. Sectl.on 6 is J.mportant Jn thl.s connectl.on because J.n order to attract the levy of the estate duty, the deceased should have been competent to dl.spose of the property. Therefore what law requl.res J.s that the deceased whose death attrncts the duty must have had dJ.sposJ.ng power at the tJ.me of hl.s death, One of the J.mportant questJ.ons J.nvolved Jn thl.s appeal J.s whether the deceased Kamlashankar Gopalshankar had dl.sposing power over the entl.rety of the property whl.ch was the subject matter of the wj.11 by the jol.nt

.._ executants.

Two contentl.ons were urged before the llJ.gh Court. The f:f.r.st contenti.on was on the correct :fnterpretati.on of sect:i.on 29 of the Act atid the second contentl.on was on the true construction of the joJ.nt wl.11 made by the deceased Kamlashankar Gopalshankar and hl.s wl.fe Mahendraba Jn the year 1950.

E On the fl.rat pol.nt, the provJ.sJ.on of sectl.on 29 of the Act has been notlced. It was submJ.tted on behalf of the revenue before the High Court that sectl.on 29 came Jnto operatlon only where the estate duty had become payable "al.nee the date of the settlement". It was contended that the expressl.on "SJnce the date of the settlement" clearly J.ndl.cated that the settlement F --'. J.n questl.on should fl.rat come J.nto exl.stence and duty should have become payable subsequent to the com.Ing J.nto exlstence of the settlement. The revenue poJ.nted out that J.n the J.nstant case J.t was contended by the accountable person that the settlement J.n favour of the grandsons came J.nto exl.stence on the death of Mahendraba, then Jt was not possl ble to accept G the posJ.tion that lJ.abJ.lJ.ty to pay estate duty came J.nto exl.stence subsequent to the settlement because any liabHJty to pay the estate duty would also come Jnto exl.stence exactly at the moment of the death of the deceased.

It was pol.nted out on behalf of the revenue that \- "settleme'lt" and "ll.abl.Uty to pay estate duty" both had come H J.nto exJ.stence sl.multaneoualy on the death of Mahendraba and

l.f that was so, secti.on 29 had no appll.cati.on to the facts of

I-- this case. It was urged on behalf of the revenue before the Hi.gh Court that the word "pai.d" should be read as "payable" whi.le construi.ng secti.on 29 of the Act. Thi.s i.nterpretati.on whi.ch the revenue wanted to place on the secti.on was confi.ned only to the first part thereof whi.ch stated that 'the estate duty has already been pai.d' i.n respect of settled property si.nee the date of the settlement on the death of one of the

parti.es to the marri.age, then the estate duty shall not be ,_ payable i.n respect thereof on the death of the other party to the marriage. This argument was, however, not accepted by the High Court. The Hi.gh Court observed that looki.ng at the . language and the spi.ri.t of the section, i.t was clear that the expressi.on "l.f the estate duty has already been pai.d .... since the date of the settlement" meant" l.f the estate duty had become payable or has been pai.d either simultaneously wi.th the creati.on of the settlement or at any ti.me thereafter", So the High Court emphasised that the di.cti.onary meani.ng of the word "since" is wi.de and the fact is that secti.on comes i.nto ). operati.on only on the death of the survivi.ng spouse and the obvious i.ntenti.on of the legi.slature i.n framing the secti.on was to avoid double duty. That i.ntenti.on, the court observed, would be frustrated lf the word "si.nce" was i.nterpreted narrowly as contended for by the revenue. Even i.f the word

"pai.d" was used i.n wi.der context and not i.n the li.teral sense, l.t could not be Interpreted as excludi.ng l ts Hteral meani.ng, namely the actual fact of payment havi.rig already been made.

The High Court was of the vi.ew that i.nterpretati.on sought for by the revenue .was hi.ghly artl.fl.ci.al and agai.nst the spi.ri.t of the secti.on. We are i.n agreement wi.th the Hi.gh Court on thi.s poi.nt. The Hi.gh Court referred to the analogous provi.si.on of > section 5(2) of the Engll.sh Statute and followed the observations of Upjohn L, J, i.n Coutts & Co. v. Inland llevemle Comaissioner, [1962] 2 All E.R. 521 at 527, We are also i.n respectful agreement wi.th the sai.d observati.ons referred to by the Hi.gh Court and on the facts, it must be held that the duty had been "pai.d" al.nee the . date of the settlement.

No submi.ssi.on to the contrary was made before us.

The second contenti.on was on the constructi.on of the. wi.11. Construi.ng the wi.ll i.n the surroundi.ng ci.rcumatancea and i.n the ll.ght of the language used the Hi.gh Court was of the vi.ew that there was no agreement that the survi.vor shall not --!

revoke the wi.11 or do anythi.ng to di.mi.ni.sh the quantum of the property goi.ng into the hands of the subsequent legatees.

D.C. BHACHECH v. THE CONTROLLER [SABYASACHI MUKHARJI, J.J 105

Therefore the deceased as survl.vor took absolute Interest l.n A -I the property and secti.on 29 of the Act would have no appUca-

Uon to tlrl.s case. The ques ti.on was accordlngly. answered i.n favour of the revenue and ln the negati.ve.

The constructl.on of the wl.11 l.s the mal.n questl.on i.n tlrl.s appeal. Whether the accountable person l.s Uable to pay estate duty on full value of the whole property l..e. the .share B belongl.ng to Mahendraba as well as Kamlashankar Gopalshankar would depend upon the constructl.on of the wl.11 l.n questi.on -. read inthe light of secUon 29 of the Act. The secti.on to .be ·

appUed requfres payment of estate duty, l.n respect of the 'settled property' on the death of one of the partl.es to the marriage. Whether property ln quesUon here was settled property or not would depend upon the constructl.on of the C wl.11.

The questl.on that fell for consl.derati.on by the Hi.gh Court and also falls for consl.deraUon J.n . thl.s Court is whether the deceased Ksmlashanksr Gopalshanksr who survived lrl.s wHe, one of the jolnt executants to the wl.11, was

.(_ competent to dl.spose of the share of Mahendrabs will.ch he ha!i D J.nhedted under the ssl.d wl.ll. Therefore, the questi.on l.s whilt l.s the true mes."ll.ng and effect of the wl.ll? DJ.d the deceased Ksmlsshankar Gopalshankar have any 'dl.sposl.ng power' over the property will.ch J.s the subj_ect matter of the wl.ll?

On behalf of the accountable person, J.t was contended that the Wl.11 l.n queaUon was not merely a, jolnt Will but a E Will wh:l.ch was jolnt as well as mutual contal.ni.ng redprocal agreements between the parUes mald.ng the Will and therefore the deceased Ksmlashankar Gopalshankar had no power l.n Ill.a Hfe time to revoke or alter the dl.spoal.tl.on made ln the Will or to do anytlrl.ng inter viwa after the death of Mahendraba .... which would have gone sgal.list the ulti.mate di.apositl.on F l.ndicated l.n the WJ.ll, It was, subml.tted that there was an lmpHcl.t agreement between the deceased and lrl.s wife, that on the consideration of. each other agreeing to bequeath his or her share l.n. the property in favour of the survl.vors each undertook not to do anythl.ng will.ch would render the subsequent and ultimate bequest ln favour of grandsons J.neffectl.ve. And G if such was the agreement, it must follow that what the deceased received as a legatee was not foll ownerslrl.p rl.ght of dl.spoaal but only a liml.ted J.nterest l.!r the share of the wife \.. and thl.s would be so even when both executants and the

• survivor were descrl.bed J.n the Wl.li as 11owner".

It was submitted that if this construction of the Will was accepted, there came into existence a resulting settlement~

in favour of the grandsons on the death of the wife and hence the property became 'settled property' within the meaning of section 2(19) of the Act. It was pointed out that tf it was accepted as a 'settled property', the accountable person was B entitled to exempt.ton under section 29 of. the Act because admittedly duty was once paid on it on the death of Mahendraba in the year 1954. Reliance was placed before the High Court on behalf of the accountable person on the decision in the case;- of Dufour v. Pereire, [1769] 21

E.R. 332, as well as Kuppuswaml Raja v. Perumal Rama, A. I.R. ! 964 Madras 291.

C According to the revenue on the other hand, the Will was joint one pure and simple and there was no evidence of any mutuality. It was contended that there was enough evidence in the language of the will itself to show that the survivor was to acquire full ownership rights over the property and was therefore competent at all times on the first death to revoke D the Will or dispose of the property inter vivos.

The High Court on an exhaustive consideration of all the>- relevant judgments and authorities came to the conclusion that there was no evidence -to prove any agreement not to revoke the Will after the death of one of the executants. The High Court was of the view that there was no external evidence and so far E as the internal evidence was concerned, it appeared to the High Court that each of the executants might have thought that it was quite safe to trust the other and to believe that having regard to their ages and their affection for the grand children who were the ultimate beneficiaries, nothing was likely to occur in the near future which would substantially F diminish the property taken by the survivor who can be trusted to give effect to the wishes of the deceased. Therefore;'

ccgrding to the High Court, there was no agreement of irrevocabiitty and the survivor took an absolute interest in the whole of the property and as such section 29 would have no application to the facts of this case. In that view of the G matter, the High Court answered the question in the negative and in favour of the revenue.

It is the correctness of that decision which is under challenge in this appeal. The sole question in the background of the provisions of the relevant sections namely section 29 read with other sections that have been referred to herein--!

D.C. llHACHECH v. THE CONTROLLER [SABYASACHI MUKHARJI, J.] 107

before, is, whether lt wa$ merely a joint Will or it. was a- A "' joint and Dlltual Will or in other words there was agreement implied between the parties namely the executants of the Will not to revoke the Will after the death of one of the e:Xecutants.

It-. is, therefOre, appropriate to refer to the relevant provisions of the Will. The Will was jointly executed by Kamlashankar Gopalshankar and Mahendraba on 24th December, B 1950 and described as "last joint Wil_l and testament". They appointed the accountable persnn the apppellant herein, as 'our Executor'. The Will thereafter goes on to say: --. ''We are that joint, owners of a Bungalow known as 'Dilhar Dwar' situate at Ellis Bridge, Pritam Nagar bearing _Plot No. 825, Bungalow No.

48/ A.

In addition to the main bungalow there are certain C other blocks bearing Nos. 48/2 to 48/6 _and one garage bearing No. 48/1 which is below Block No. 48/2 and a common bath room and two privies for blocks No. 48/2 to 48/6. We have been in possession of the land, the bungalow and the blocks for many years past. We are in actual occupation of the main D • bungalow. The other blocks except the garage .bearing No. 48/1 and Block No. 48/5 are rented to tenants. The garage bearing No. 48/1 is for the present allowed by us to be used by our permission and leave and licence by our son "Chintvanshankar Kamlashankar Bhachech without payment of ariy sum." E

Then the will goes on to make the bequest in favour of the three grandsons in terms set ~Ur ... hrein before.

The will thereafter goes on to provide in detail for the contingencies that might happen in case where either by the F ' rules of the Town Planning Scheme or the Municipal Laws the portions of the property need and require alterations. The will further stipulates in detail about the payment of the house taxes in respect of the pro'perties coming to the shares of each of their grandsons, and even in respect of the areas built by them. The will further stipulates that for the G purpose of partitioning the land as demarcated on the plan there to annexed and ref erred to above if there was any obstruction on the land going to the share of each of their grandsons which encroached _upgn the portion or portions coming \- to the share of other grandson or grandsons the saine should be removed by the persqI\ or - persons whose encroachment or H obstruction, it may be.

Reading the dl.fferent clauses of the sald joint w:l.ll it ,.. was mani.fest that the intenti.on was to keep the property, as H .was at the time of executi.on of the w:I ll so that the ultimate benefl.ciaries and the grandsons may enjoy the property i.n

full w:l.th such modlfi.catfons as the conti.ngencl.es of ti.me and situati.on ml.ght requl.re.

. In thl.s background l.t is necessary to fl.nd out whether the Wl.11 in questl.on was a joint will only or a joint and mutual Wl.11.

Theobald on 'Wl.11~', Twelfth Edl.tl.on, pages 28 & 29 at ;.- paras 79 & 80 descdbes the dl.fference thus:

"Joint w:l.lls. Persons may make jol.nt wJ.lls, whl.ch are, however, revocable st any ti.me by either of them or by the survl vor. A j ol nt wHl ls looked upon as the w:l.ll of each testator, and may be proved on the death of one. But the survivor w:l.ll be treated l.n equity as a trustee of the joint property l.f there is a contract not to revoke the wl.11; but the mere fact of the executl.on of a joint wl.11 ls not suffl.cl.ent to estsbHsh a contract not ~

to revoke. So a legacy to a legatee who survived the fl.rat testator, but predeceased the second, did not lapse. Where s joint w:l.ll l.s followed by a separate w:l.ll whl.ch is condl.ti.onal on a condl.tl.on that fal.ls, the joint wl.11 l.s not revoked even though the subsequent separate w:l.ll contains a r.evocati.on clause.

Mutual wills. The term "mutual w:l.lls" is used to descdbe separate documents of a testamentary character made as the result of an agreement between the parti.es to create lrrevocable interests> in favour of ascertalnable benefl.cl.arles. The revocable nature of the wl.lls under whl.ch the interests are created l.s fully recognised by the Court of Probate; but in certaln clrcumstances. the Court of Equl.ty w:l.ll protect and enforce the interests created by the agreement despl.te the revocatl.on of the w:l.ll by one party after the death of the other w:l.thout havl.ng revoked hl.s wl.ll.

The Court of Equl.ty wHl not protect the beneflclsry under mutual wl.lls merely because they have -I been made l.n almost identl.csl terma. There must be

D, C, BHACHECH v. THE CONTROLLER [SABYASACHI MUKHARJI, J,] 109

evi.dence of an agreement to create interests under the mutual wllls which are Intended to be J.rrevocable after the death of the Urst to di.e. Where there i.s no such evl.dence the fact that the survivor takes an absolute Interest l.s a factor agai.nst the i.mplicatl.on of such agreement. Where, however, the evidence is. clear, as, for example, where i.t is contai.ned i.n recl.tals in the wills themselves, the fact that each testator gave the other an absolute Interest w:l.th a substi.tutl.onal gl.ft i.n the event of the other's pd.or death does

not prevent the court of Equi.ty from affordl.ng l.ts c protecti.on to the benefi.ci.ary under the mutual w:l.lls.

The agreement must also be sufficl.ently precl.se to be enforced by the Court.

Before the death of the first to die, the agreement l.s a contractual one made in consideratJ.on of D :l, mutual proml.ses. It can, therefore, at thi.s stage be revoked by mutual agreement and even by uni.lateral breach, gi.vl.ng. ri.se to an acti.on for . damages at least where the revokl.ng party gl.ves such notJ.ce to the other as may enable hi.m to alter hi.s w:l.11 also. But on general princl.ples only the E partJ.es to the agreement can sue for damages for

wii.lateral breach." Earl Jowi.tt l.n the DictJ.onary of English Law, lst Edn.

Second lmpressl.on 1965 at page 1283, referes to the defini.tl.on of 'owner' under Public Health 1936 and the Factori.es Act,

1937 as a person for the ti.me bei.ng receiving the rack-rent of F • the preml.ses in connectl.on w:l.th whl.ch the word i.s used, whether. on hls own account or. as agent or trustee. Jow:l.tt also defi.nes 'ownership' as the most extensi.ve right allowed by law to a person, of deaHng wi.th a thi.ng to the exclusl.on of all other per.sons, or of all except one or more speci.fi.ed persons.

It is therefore a right In rem.

G Stroud' s Judi.cl.al DictJ.onary 4th Edn. Vol.3 page 1907 deals wi.th the concept of 'owner' and 'ownership' l.n different

statutes of England.

llalsbury's Laws of England, 4th Edn., Vol. 50 at pages 95 ')- & 96, paras 207 & 208 de_als more or less in the same manner about joint wi.ll and mutual w:l.ll. But at page 108, para 221 i.t H states the law thus:

"221. Restrictions by taking a benefit under a '" llltllal will. Mutual wills may be made, either by a joint will or by separate wills, in pursuance of an agreement that they are not to be revoked. Such an agreement may appear from the wills, or may be proved outside the wills, but it is not established by the mere fact that the wills are in identical terms. If no such agreement is shown, each party remains free to revoke his will, if there are ;.- separate wills, or to revoke the joint will, so far as it disposes of his property, and the fact that one party has died without revoking the disposition of his property does not prevent the survfvor from revoking the disposition which he has made notwithstanding that he has received benefits out of the estate of the deceased party. Even when there is such an agreement and one party has died after departing from it by revoking or altering the will, the survivor having notice of the breach cannot claim to have the later will set aside, sincethe not'tce gives him the chance of altering the will as regards his own property; and the death of the deceased party ts itself sufficient notice for this purpose. It, however, the deceased has stood by the agreement and not revoked or altered his will, the survivor ts bound by it, and although probate will be granted of a laterwill made by him in breach of the agreement, since a court of probate is only concerned with the last will, the personal representatives of the survivor nevertheless hold his estate in trust to give effect to the provi- >·

sions of the joint will or mutual wills." Jarman on Wills in 8th Edn. at page 42 states the position of U11tual wills thus:

"The fact that a husband and wife have simltaneously made mutual wills, giving each to the other a life interest with similar provisions in remainder, is not in itself evidence of an agreement not to revoke the wills; in the absence of a definite agreement to that effect there is no implied trust precluding the wife from making a -( fresh will inconsistent with her former will, even though her husband has died and she has taken the benefits conferred by his will. Although by . the

D.C. BHACHECH v. THE CONTROLLER [SABYASACHI MUKllARJI, J.] 111

lllltual wills the wife expressly has ref rained from exercising apower of appointment, which her husband had only in default of her exercising it, and he has appointed, the wife can both take the benefit of her husband's will and exercise her power of appointment, unless the language of his will either puts her to her election, or place her in the position of seeking at the same time to approbate and reprobate its provisions.

The joint executants have been described as joint owners.

Again the said clause goes on to . use the expression 'during our life time we shall continue to be the joint owners' 'and shall be jointly entitled to the rents and income of the sai.d land and blocks and the user and rent of the bungalow. The Will goes on to say that after the death of one of them 'survivor shall become the "owner 11 of the said land bungalow and blocks including the garage with the said bath room and privies and shall become entitled to the rents and income and • user of the said land bungalow and block's. The provisions contained in the said will were stipulated to be effective after the death of the survivor of them. After the death of the survivor the will went on to use the expression "we hereby devise and bequeath our said furnished bungalow ••••• " Then the will made petalled provisions for the enjoyment of the property in specific species.

In re Oldham, 1925 Ch. 75, the husband and wife had made mutual wills in the same form in pursuance of an agreement so as to make them but there was no evidence of any further agreement in the matter. Each gave his or her property to the other absolutely with the same alternative provisions in case •.of lapse. The wife having survived and accepted her husband's property under the mutual will subsequently married again, and made a fresh will ignoring the alternative provisions of her own mutual will. The plaintiff in that case contended that from the agreement to make mutual wills in the form in which they were made, the survivor who had accepted the benefit under the mutual agreements became thereby subject to alternative trusts mentioned in the mutual wills. Reliance was placed on Dufour v. Pereira (supra). Reference was made to the observations of Astbury J. in that where the learned judge \- observed that in order to enforce the trust, the judge llllst be satisfied that there was a term irrevocable and in such

cl.rcumstances he was to gi.ve effect to the same. But the '" learned judge was unable having read the w:l.11 to fi.nd any mutuali.ty in that form In the w:l.11 in questi.on. This decl.slon found favour with the Gujarat Hi.gh Court. In the Instant case before us, it has to be noted that the will in questi.on was in one document and furthermore the desire to give properties In B specl.es to the grandsons was manifest from the entirety of the w:l.11.

' It would be evident from the said w:l.11 that the j oi.nt r proper, Ues of the deceased husband and the w:l.fe were deli.nested into three parts and each of the parts were bequeathed to three grandsons in sped.es i., e; In speci.fi.c C d"marcated areas. One other slgnlfi.cant fact to be borne in mi.nd, in vlew of the contenti.ons involved in thi.s appeal, is the fact that there was no provisi.on in the will whereby H one of the properti.es or one of the parts of the sai.d properti.es was parted away or di.mini.shed before the death of both the executants ( thi.s ls Important because the w:l.11 was to take D effect on the death of both the executants), there was no ). provi.si.on that any part whi.ch got dimini.shed duri.ng the li.fe time of one of the executants, he should be compensated otherwi.se from any other part of the said properti.es or any other assets of the estate of the executants which were the subject matter of the w:l.11.

E Reli.ance was placed i.n Gray v. Perpetual Trustee Co.

Ltd,, [1928] A.C. 391 at 399 & 400. In that case it was held that the fact that husband and w:l.fe si.multaneously made mutual wi.lls gi.vi.ng li.fe Interest w:l.th si.mi.lar provi.si.ons in the

remai.nder was not :i.n :l.tself evj.dence to an agreement not to revoke the w!.lls.

F The use of the expressi.on 'owner' ls really not the'

soluti.on of the problem before us In thi.s appeal. In one .context the expressi.on 'owner' has been used to indi.cate the

limi.ted ownershlp to be enjoyed by the survlvor of the jolnt executants and in another context . to the ulti.mste legatees or

r the benef:l.cj.arles.

Clause 5 of the w:l.11 i.s suggesti.ve that i.t was i.n the contemplati.on of the executants as to what would happen to certain amounts lylng to their credi.t at the ti.me of the death of the survivor. Jn the event of the: death of the grandson "-' before the dea".h of the survl.vor of the executants. It '

D.C, BHACHECH v. THE CONTROLLER [SABYASACHI MUKHARJI, J,] 113

provl.ded that J.n that event the amounts would go to the heirs according to law of the grandson named therei.n. These properti.es were agal.n i.n clause 7 descrl.bed as 'joint properti.es'.

It would be material to refer, apart from the clauses wh:i.ch have been set out herei.nbefore, to certaln other clauses

namely clause 2 of the will, the relevant portl.on of whl.ch has B been set out herei.nbefore i.n its entirety. Clause 3 deals wi.th. the situati.on when J.f any of the grandsons or the hel.rs. wanted to sell h:i.s or thel.r portl.on of bulldi.ng at any tl.me. Clause 4 also dealt wl.th the situstl.on l.f one of the grandsons dl.ed dudng their ll.fe ti.me and before the death of the survl vor what would happen? Clause 5 has been referred to herel.nbefore.

Clause 6 deals wi.th certai.n movable propertl.es. Clause 7 dealt c wlth separate propertles.

It l.s evident from the aforsaid that property in species, in specl.flc proportl.on, was Intended to be preserved and enjoyed by the ulti.mate legatee on the death of the survlvor.s.

In Kuppuswamy Raja v. Perumal Raja (supta)·, It was observed that a joi.nt wl.11 is by a single testamentary instrument contal.nl.ng the wi.lls of two or more persons and jol.ntly executed by them, whlle mutual wllls, ar.e separate wi.lls of two or more persons whfch are recl.procal l.n thel.r provl.sl.ons and executed J.n pur.suance of contr.ac.t or agr.ee.ment between two or more pe'rsons to dl.spose of thel.r property to each other to thl.rd person l.n partl.cular mode or manner, Mutual wl.lls as dl.stingul.shed from jol.nt wi.lls are sometl.mes descrl bed as reciprocal wi.lls, In descrl.bl.ng a wi.11, the adj ectl.ve mutual or. r.ec:l.pr.ocal i.s used to denote the contractual element whj ch distl.ngul.shed from a jol.nt wl.11. It was stated thereln by the Dl.visl.on Bench of the Madras High Court that jolnt will would become :l.r.r.evocable on the death of one of the testators :If the survlvor recel.ved beneflt under the wi.ll. The Court emphasl sed referring into certal.n decl.sl.ons of thl.s court that a joJnt will would become Irrevocable on the death of one of the testators l.f the survlvor has recel.ved beneflt under the mutual wi.ll. There need not be any specHlc contract proh:ibltl.ng evocatlon when the agreement took the form of not two sl.multaneous mutual wi.lls but one sl.ngle document. If one si.ngle document was executed usi.ng the expression 'our property' , 'our pr.esent w:f.shes' , and 1 as w:f 11' and such si.milar expressions, i.t was str.ong cogent evidence of the i.ntention that there was nopower. to revoke except by mutual consent.

In order to render mutual will according to the said decision, the concurrently satisfied:

[19861 1 s.c.R.

irrevocable, bath, conditions must be

(a) that the surviving testator must have benefits from the deceased under the mutual will; received

(b) the mutual wills should have been executed in pursuance of an agreement that the testators shall not revoke the mutual wills. Such an agreement not to revoke the wills may either appear from the wills themselves or may be proved outside the wills. This judgment was dissented from by the judgment under appeal.

Reliance was placed on the decision of the Atlahabad High Court in Bhawani Prasad v. Smt. Surendra Bala W/o Subodh Chandra and another, A.I.R. 1960 Allahabad 126. In that case, by the will both the executants, husband and wife were devising the property of which each was the owner, in the first instance to whoever survived, and thereafter both of them devised the property 'belonging to us' to the petitioners.

There was an assertion of absolute ownership in the house made by the wife, and an assertion made by both executants that the deposits in the bank constituted money 'belonging to us the executants'. Tiie itemc; aforesaid, according to the will, were to remain in the absolute possession and enjoyment of the executants during their life time and thereafter to be disposed of in the manner indicated in fhe will. The last clause, clause (4) of the will indicated that the executants would have the right to amend or cancel the will, but nobody else would have that right. It was found that the exercise of the right of the power reserved by clause ( 4) was not made dependent by this clause on the co-existence of both the executants. It was held on the construction of reading of the will that after the death of the husband, the wife could revoke the part of the will by gifting away t)le house to another during her life time. The fact that the, wife had benefitted from the will of tlle husband would not destroy her power of revoking her will because her will was quite an independent transaction. The deed of gift' could not be taken to have revoked the will of the husband but only the will of the wife. The case was really decided in term-; of the facts and circumstances of that case and "o'd!ngs of the will.

In the case of Re Parsons, Parsons v. Attorney General, [1942] (2) All E.R. 496, the testatri:.t gave a legacy of f-10,000 to her husband absolutely, and :,, he also gave the

-I '

D.C. BHACHECH v. THE CONTROLLER [SABYASACHI MUKllARJI, J.] 115

income of her residuary estate on trust for her huaband for life and after his death on trust for her son absolutely. The husband disclaimed the legacy by a formal deed of disclaimer and the legacy fell into residue. On the husband's death the revenue authorities claimed estate duty in respect of the legacy on the groµnd that although the husband had disclaimed the legacy, he was competent to dispose of it and the liability to duty was not, therefore, excluded by the Finance Act, 1948. It was held that during the period between the death of the testatrix and the date of the disclaimer the husband was 'competent to dispose' of the legacy within the meaning of the Act. Whether a person is competent to dispose of naturally would depend on the terms and conditions under which the property is either acquired or inherited. The expression 'competent to dispose of' DllSt bear the ordinary meaning in the English language. A person shall be deemed to be competent to dispose of the property if he has every power or authority enabling the donee or other holder thereof to appoint or dispose of the property as he thinks fit.

A contention was raised in this connection whether this being an exemption provision from duty, it should be so read as to lean in favou:r of the assessee.

The questions whether such a clause should be construed in f avoUr of the assessee or in favour of the revenue in case of doubt or the question whether section 29 being exemption clause in respect of payment of duty on •ettled property, -the onus is on the assessee. to come strictly within the purview of that clause or the question how should such a provision be construed really do not arise. There is not much difficulty or ambiguity on the construction of _section 29 of the Act. The

_.... question involved in this case is the constructi.on of the will

in question. Was it only a joint will executed jointly by two of the executants or was it a joint and a mutual will? In aid of the submissions that an exemption clause must be strictly construed in favour of the State cases were cited which need not therefore be noticed.

Reference was made to Cross 'Statutory Interpretation' on construction on the theory of contemporaneous exposition reliance being placed on the conduct of the parties t.e. the deceased and treated the half share of the wife in the property in question as his own and had filed wealth tax returns on the same basis.

These prlncl.ples are also well settled. But these prl.ncl.ples wUl not strktly be appUcable Jn the Instant case because thl.s appeal J.s concerned wl.th the constructlon of the wi.11 i.n questl.on and the wi.ll Jn questl.on must be construed l.n such a manner as to fl.nd out the true Jntentlon of the executants or the testator and testatrix. For that i.t J.s well settled that wlll must be read as a whole. Secondly the expression must be read consistently.

One has to bear Jn ml.nd that we are concerned wi.th the constructi.on of the wUl and the true effect of the provi.sl.ons thereof. Whether the deceased .Kamlashankar Gopalshankar had the disposing power over the share of the property of Mahendraba, hl.s wi.fe, acquJ.red by h.l.m would depend not on how he has treated i.t but the true effect of the wi.11. Furthermore there l.s no questl.on of contemporaneous conduct because the conduct of one of the partles subsequent to the death of one of the executants long after the executl.on of the wi.11 cannot be descri.bed as 1 contempor.aneous conduct:'. We need not, therefor.e, detai.n ourselves on the questlon of 'corttemporaneous exposl.ti.on' by conduct of the parties In the facts of thl.s case.

Therefore the wi.11 must be construed i.n J.ts proper Ught and there must be defi.nl.te agreement found from the tenor of the wi.11 or all.unde that either of the joint executants would E not revoke the wi.11 after recei.vi.ng the benefi.t under the wi.11. Such defi.ni.te agreement need not be express; l.t can be l.mpli.ed. The terms of the wi.11 have been set out exhaustively.

It was undoubtedly a jol.nt wl.11. The property ln questl.on has been descr:f.bed as 'our proper.ty' • The express:f.on

1 owner' has also been used l.n the manner J.ndl.cated in the Bentence 'During

F our life ti.me we sha 11 contl.nue to be the j oi.nt owners of the >- land bungalow and blocks wJ th thei.r common bath room and two privl.es .... and shall be joi.ntly enti.tled to the rents and Income of the sal.d land and blocks and the user and rent of the bungalow', The wi.11 goes on further to say that on the death 'of one of them, the survi.vor shall become the 'owner of G user of the sal.d land bungalow and blocks l.ncludl.ng garage ••••• ' Therefore i.t i.s clear that the ownershi.p whJ.ch

the jol.nt executants contemplated was the user durl.ng the Hfe tlme and entl.tlement to the rents and income of the same. It

J.s th.l.s ownershi.p wh.l.ch was to pass on the death of ei.ther of -.f them to the survi.vor and the wl.11 thereafter goes on to say

n.c. BllACHECH v. THE CONTROLI.ER [SABYASACHI MUKHARJI, J.] 117

that 'the provl.sJ.ons hereinafter contained shall become effecti.ve after the death of the survivor of us'. And thereafter after the death it l.s provided "we hereby devl.se and bequeath our sal.d furnJ.shed bungalow ..... " The gl.ft of the property to the three grand chl.ldren as owners ln full sense l.s to take effect on the death of the survivor of both the executants. It Is clear that the property was intended. to be kept in tact for the enjoyment of the ulthnate legatees and during the life ti.me of el.ther of them the property would not In any way be parted wi.th or di.mi.nJ.shed. Thi.a l.ntentJ.on, expressed in the l.mpli.ed terms in the bargain in the wUl, l.n our opinJ.on, would be fortl.fied by devising the property to three grand chl.ldren In sped.es J..e. in speci.fl.c form and not providing for any money or compensatJ.on for dl.udnutJ.on of .any part thereof before comi.ng into effect of the wUl in questJ.on, If that is the posi.tJ.on then, ln our opini.on, there l.s a definJ te agreement not to revoke the will by one of the executants after he or she has received the benefl.t under the wi.11 on the death of el.ther of them.

Indubi.tably in the i.nstant case the husband has recel.ved the benefft under the wl.11 of the wi.fe, He could not have during his Hfe ti.me parted wi.th the property i.e. he did not have the dl.sposi.ng power over the proper.ti.es in question after the death of the wHe.

It was emphBsl.sed that there was no evidence of

mutuality, But there was enough evi.dence in the language of E the wl.11 Itself whl.ch have been set out herel.nbefore that the property must remain i.n tact speci.ally after receipt of benefft by one of the executants on the death of the other unti.l the death of both of them to be able to be succeeded by ., the ultl.mate legatees, The domi.nant i.ntenti.on of the testators is evl.denced from the language used. Thi.a must be judged in F the facts and ci.rcumstances of each case. It was not only that on certai.n basis that the wi11 was made but l.t was Intended to remai.n i.ntact to be enjoyed by the grand chl.ldren. The fact that both the executants have described themselves 1 joint owners 1 i.s not by Itself conclusive on this poi.nt nor the use of the expressJ.on 'that the survi.vor. shall become the owner 1 G i.s conclusi.ve. On the other hand the detal.led provi.si.ons 1.n speci.es to be effecti.ve after the death of the survivor i.n di.fferent porti.ons to be gl.ven to. the di.fferent grand sons '"' wi.thout any provi.sion as to what was to happen J.n case of the. di.mi.nutl.on of the property wi.thl, n the H.fe ti.me of ei.ther of the survivor make the wi.11 'mutual wills 1 , H

In our opl.ni.on the doml.nant Intention ls clear I.e. the wl.11 may be revoked during the Hf e tl.me of both the executants but after the death of one of the executants and after benefH had been received by the survivor, the property in quest Ion must remaJn Intact to be enj ayed by the grand chlldren by the terms of the wl.11 whlch was to become effecti.ve on the death of both of the executants.

We are of the opJnfon , that defl.nl.te Jntentfon musi: be there but such Intention need not be expressed J.n a separate document than the wlll Itself. If from the wl.11 l.n questl.on such a defl.nl.te Jntenti.on and a separate agreement can be spelled out then Jn our opJni.on It would be a case of jol.nt and mutual wJ 11.

In vlew of the above dlscussl.on, the followl.ng proposl.- ti.ons follows:

l. Whether estate duty s payable on the whole of the property or not would depend on whether the deceased Kamlashankar Gopalshankar had 'dl.sposl.ng power' over the share of Mahendraba Jnherl.ted by hl.m on her death or not?

2. The above questi.on would depend on the constructl.on > of the joJnt wl.11-dld l.t create any mutuallty among the executants of the j olnt wl.11? Whether Kamlashankar Gopal - shankar having accepted the benefl.t and after hls wl.fe's death, was competent to do anythl.ng contrary to the ultl.mate bequest? Before the death of the fJrst of the executants, .the agreement r.emained contractual one 1.n consi.der.atlon of mutual proml.ses. It could have been at that stage revoked by mutual agreement or even by unUateral breach, gl.vlng rl.se at the wost to an actl.on for damages. But after the death of the fl.rst one wl.thciut revokl.ng hl.s or her own wl.11 makes the jol.nt wl.11 Irrevocable by the survl.vor (See Theobald . (supra1', But there must be an agreement that the wl.lls would not be revoked ' after the death of one of the executants or dl.sposltl.on wl.11 not be made contrary to the wl.11 after the death of one of the executants. Such an agr.eement may appear from the w:l.11 or. may be proved outside the wi 11 but that J.s not estabHshed by .the mere fact that the wJ.lls are in ldentl.cal t.erms. If such an agreement i.s shown, each party rema:i.n bound.

3. A di.fferent and separate agreement must be spelled out not revoke the wlll after the death of one of the H executants. That agreement must be clear though need not by a ..(

D, C, BllACHECH v. THE CONTROLLER [SABYASACHI MUKllARJI, J,] 119

separate wdtl.ng but must follow as a necessary J.mpHcati.on whl.ch would tentamount to an express agreement.

4. The predomi.nant J.ntentl.on of the. executants at the ti.me of the executl.on, after the acceptance of the benefi.t of the execution makes the wHl in thi.s case frrevocable by the sur.vi.vor of the executants.

s. Judged by the prl.ncl.ples J.ndl.cated above, i.n the facts and cl.rcumstances of thi..s csse, we are of the opi.ni.on because of the specl.fi.c clause that J.t was Intended that the grandsons would recei.ve the benefi.t J.n sped.es and there bel.ng no provl.si.on for maki.ng up the defi.cl.ency or di.mi.nuti.on If any, it must follow that there was mutuall.ty and Kamlashankar Gopalshankar was not competent to dl.spose of the property J.n any manner contrary to the ultiJDate dl.sposi.tl.on.

6. The fact that estate duty was pai.d is sequi.tur.

7. The payment of wealth tax by Kamlashankar Gopalshankar on the whole estate after the death of Mahendraba J.s not relevant. .t 8, The questl.on of std.ct constructi.on of the taxi.ng statute and the pdnci ple that. one who clal.ms exempti.on must strl.ctly come wi.thin the purvi.ew J.s not relevant in thi.s case because the exempti.on follows on the i.nterpretati on of the wi.ll.

In that vl.ew of the matter we are of the opini.on that thi..s was a mutual wi.ll. The husband Kamlashankar Gopalshankar recel.ved the, beneflt under the wi.ll after the death of Mahendraba. It became Irrevocable by hiw after her death.

Therefore he had no di.sposl.ng power over the share of

Mahendraba l.n the property. In the premi.ses bel.ng a 'settled F • property', estate duty having been pal.d on the death of one of the par.tles' the accountable person was enti.tled to exempti.on under sec ti.on 29 of the Act. In the premises the High Court was not ri.ght in l.ts conclusi.on.

The appeal l.s accordl.ngly allowed and the judgment under G appeal Is set asl.de and the questl.on is answered in the afflrmatl.ve and in favour of the accountable person. The accountable per.son j s enti.tled to the costs of tW s appeal.

S.R.

Appeal allowed.